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SPECIAL PROCEEDING

NOTE: Declaration of absence and death: There is no such thing as declaration
of death…it should be absence leading to the declaration of death.
These are the only things which we will be discussing in Special Proceedings (I
will state them in the order of importance, procedurally speaking):
1. Settlement of Estates- states the meat of special proceedings
2. Adoption- although this is already studied in civil law; it is important because
of the new rule on adoption, not the laws on adoption (R.A. 3552, the
Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country
Adoption Law of 1995)…not that because that is substantive. I am talking of
the new rule on adoption which took effect sometime in August 2004. I that’s
why I think it’s the second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of Name and Correction of
Entry..again, because of the new law. So the possibility of being asked in the
BAR is great. (Read also R.A. 9048)
4. Guardianship- practically the same rules of procedure as settlement of
estate..only that in settlement of estate, the subject is dead unlike in
guardianship, the subject is still alive. Physically alive, but mentally dead or a
minor. That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but relation…trust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations;
Declaration of Absence & Death; Hospitalization of Insane Persons…(but, I still
advise you to read), even the Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement of
Estate and next to Settlement of Estate would be Adoption and next to that would
be Habeas Corpus.
Note that even in last year’s BAR examination there was no question on special
proceedings because utmost you get only one question for BAR purposes, one
question in Special Proceedings. Very seldom if you find two questions in Special
Proceedings. If, perhaps, the examiner is teaching special proceedings, then
perhaps he will ask you more questions in the BAR, but ordinarily no…not that
I’m demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that
remains to be seen starting this afternoon.
Remember, Special Proceedings is different from all other actions, including
Special Civil Actions. If you are asked to define what a Special Proceeding is, A
Special Proceeding is an action other than an ordinary action, a special
civil action, or a criminal action. That is a correct definition by exclusion. To be
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

more specific, Special Proceedings are actions geared or directed towards
the establishment of a right, status, or a particular fact. The ordinary rules
apply here and more so because there are specific provisions that distinguishes
it from special civil actions where it has a special rule. Here, no. It has its own
uniqueness. Every Special Proceeding has its own nuances. For example,
because the objective is the establishment of a right, status, or a particular fact,
summons, here, is ordinarily not needed. In special proceedings, there is no
defendant, so there is no need for summons. Summons, as we have studied is
the way by which a court acquires jurisdiction over the person of the defendant
(Rule 14). The only exception is, of course, Habeas Corpus Proceedings
wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?
A: There is no need for the court to acquire jurisdiction over the person of the
defendant because there is no defendant. Therefore, the court should acquire
jurisdiction of the case, over the subject matter. How? Because it is an action in
rem, ordinarily publication. So that is the uniqueness of Special Proceedings.
Publication is the means by which the court acquires jurisdiction over the subject
matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not
prescribe. There might be limitations of such periods in some instances, but
ordinarily, they do not prescribe.
Q: What are the Special Proceedings?
A: Name them according to the Rules starting from Rule 73-90 Settlement of
Estate; Rule 91 Escheat; Rules 92-97 General Guardians & Guardianship; Rule
98 Trustees; Rules 99-100 are no longer applied because they are deemed
repealed by the new rules on adoption, including Rescission & Custody of
Children, these Rules are no longer applied because of the adoption of the Child
& Youth Welfare Code.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

SETTLEMENT OF ESTATE OF DECEASED PERSONS
When you speak of Settlement of Estate, immediately what comes to your mind
is that someone died (and that’s the beauty in law…men live forever in law…they
continue in their estate…There are those who want someone dead because of
his estate. there are also those who want somebody alive because he has no
estate…but actually, even if you are a pauper or a millionaire, you always have
an estate. So you live forever through your estate. That estate must be settled).
Q: There are two ways to Settle an Estate:
A: Extrajudicial Settlement and Judicial Settlement of Estate. In, extrajudicial
settlement, the rules speak of settlement through Affidavit of Self Adjudication
and the other way to settle it is by extrajudicial partition. Those are the
extrajudicial manner of settling the estate. Extrajudicial settlement proper is by
agreement of the parties.. extrajudicial settlement is distinct from partition. When
you go to judicial settlement, you have the first which is Summary Settlement
Sec. 2, Rule 74, which is very practical and then judicial partition under Rule 61,
that is a mode of settlement and then you have the conventional mode of
settlement of estate. We can even add a fourth kind, whish is also a mode of
settlement of estate…Escheat proceedings under Rule 91.
The conventional mode settlement is either testate or intestate. The testate can
either be with the will annexed or without the will annexed. The intestate, of
course, there is no will. But both testate and intestate may also be done either in
the Philippines or outside the Philippines.
Q:
A:
1.
2.
3.

What are the requirements for an Affidavit of Self Adjudication?
There is a will
No debts;
Only one heir.

Q: Suppose Mr. X, who died, was known to everyone to have one child but later
on, it was found out that he had other illegitimate children. What will happen to
the affidavit of self adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still
subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?
A: The word suggests already that it is an affidavit…so, how do you formulate an
affidavit? You simply state in your affidavit that your father or your mother died;
and that he/she left the following properties; and that you are the only heir of your
parent; and that the estate are such and such, valued accordingly; and that they
are found there (location of property)..you simply submit that to the Register of
Deeds and the Register of Deeds will act on it only after you comply with the
requirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register
ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

under the directive of the President of the Philippines. IRVIN BAUTISTA. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. . This form of extrajudicial settlement is similar to Partition…there is really no distinguishing feature between extrajudicial partition and extrajudicial settlement.. you ask the court for the appointment of a guardian ad litem. after the hearing. In affidavit of self adjudication. the parties agreed. ubos na yung ten thousand mo). will file an Escheat Proceeding. a will pops up.. Jurisprudence tells us that any act between and among persons that would lead to the division of property is a form of partition or settlement…any act that would terminate indivision would be division. and no debts. but take note that there is also no will and there are also no debts and even if there are debts. then the proceeding may be suspended and establish your right…otherwise. the property will go to the government. Summary Settlement of Estate is very impractical because up to now the value of the estate is still P10T (P10. there is sufficient money to answer for those debts which are reserved…the money is reserved to answer for debts…so you can partition among and between yourselves these properties. of course you have to support your allegations with documentary evidence (like for example.that is not under Rule 69 because under Rule 69 is judicial partition…here. he is duly represented…ordinarily. ANGELO NIÑO SANTOS. without an heir. CRESENTE BERNADOS. (extrajudicial ha…the court has no participation whatsoever here) You simply submit to the Register of Deeds.of Deeds. this can be proven through your birth certificate and also the marriage contract and the properties you wish to adjudicate unto yourself should be established by Titles or muniments of titles). provided all of you are of age. The other mode of extrajudicial settlement is extrajudicial partition. once a week for 3 consecutive weeks in a newspaper of general circulation. Judicial Settlement refers to Conventional: Rules 73-90. the property belonging to the estate will go to the city or municipality where it is found. RULE 91 ESCHEAT Is another form of Judicial Settlement. If an heir pops up. then the Office of the Solicitor General will file. that you are the only heir.000) but you will note that there is still a requirement for publication (so if you have it published once a week for 3 consecutive weeks. But if it happens that during the pendency of the proceeding. Escheat tells us that if a person dies without a will. If one is a minor. the Register of Deeds will simply transfer the title in favor of the affiant. then the proceeding is discontinued. This escheat proceeding is founded on the theory that all lands belong to the State…the Regalian Doctrine that you studied under LTD (Land Titles & Deeds)… all lands belong to the State and he who claims otherwise has the burden of proof so after the escheat proceedings. the Register of Deeds acts on it and if there is already publication.

Under Rule 91. whether testate or intestate. exclusively…hindi na yun. depending on the gross value (hindi assessed). IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. This speaks of REVERSION. the property was acquired by an individual in violation of the Constitution. less that P300T and within Metro Manila. even foreigners who were former Filipinos. so on and so forth. IRVIN BAUTISTA. Sec. whether testate or intestate. The same thing with personal property…where it may be found and the Rule is very specific that the property will be spent for charitable purposes. can now acquire property in the Philippines and that was given more strength because of the Dual Citizenship Law. the basis of which is the “assessed value”…dito. Under the Constitution. CRESENTE BERNADOS. In other words. may be taken cognizance of by inferior courts. any person. Q: Which court has jurisdiction over Petitions for Settlement of Estate? A: Under RA 7691.So if the proceeding is in Manila. gross value of the estate and the location is determinative somehow of jurisdiction because if it is outside Metro Manila. So that is Rule 91. P400T…so suppletory character lang yun. but the property escheated is in Calamba. for educational purposes. inferior courts now have jurisdiction over settlement of estate. The old books speak of Courts of First Instance (RTC). . RULE 73 VENUE AND PROCESS. Remember. So it is not under the provision which speaks of actions involving title to or any interest in property but it is a direct provision of the law that settlement of estate.5 is another form of escheat because that was given in the BAR 5 years ago (sa dami daming pwedeng ibigay sa Special Proceedings. there is another provision under BP 129. ANGELO NIÑO SANTOS. yun lang ang binigay). the property escheated located in Calamba will go to the City of Calamba and not to the City of Manila.

. there is no question as to the petition filed by anybody for the settlement of the estate of Mr. Q: If an American was in the Philippines because he was a member of the Armed Forces. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. including special proceedings. then the petition for settlement must continue. Let me emphasize to you that in civil cases. what happens to the case? A: The settlement must continue because venue is not jurisdictional. which can either be the MTC or the RTC. the word jurisdiction is mentioned three (3) times. the issue is not jurisdiction but only of venue. But considering that there was no opposition. Quezon City. Luke’s Hospital. X who is a resident of Cebu. Q: So. who joined the Balikatan Forces in Mindanao and he died here. unlike in criminal cases. is the last residence of the decedent a matter of jurisdiction or a matter of venue? A: It is a matter of venue so you cannot question it. Q: What is Residence? ANGELO NIÑO SANTOS. Jurisdiction here is conferred by law and RA 7691 confers that depending on the value of the gross estate. On the other hand. venue is not jurisdictional. the petition is filed in Quezon City. Q: Suppose Mr. Sec. Q: So. if there is no opposition. IRVIN BAUTISTA. is the venue properly laid? A: No. venue may be waived. 1 there does not speak of jurisdiction. So. where should the settlement of estate be done? Is it the place of one’s death which is determinative of the venue? Suppose one had 5 residences because he had 5 wives? A: This is a very confusing provision because the title is “Venue & Process” but the word ‘venue’ is never mentioned. venue is jurisdictional and from what we have learned under Rule 4 of the Rules of Court. X. Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City. where should his estate be settled? A: In Cebu because it is the place of the final residence of the decedent. a Filipino citizen residing in Cebu City died at St.Q: Is settlement of estate limited to the estate of Filipino Citizen? A: No. CRESENTE BERNADOS.

which court has jurisdiction? Both courts have jurisdiction actually. The first family with his first wife. But Fule. When he died. He was a resident of Cebu but also had a house in Qezon City because he was a member the Senate. Eusebio. ANGELO NIÑO SANTOS. In Fule it has been settled that the residence is the actual place of habitation. In one of the Bar Exams using Cuenco vs. takes it to the exclusion of all other courts. Sec. His second wife. this was treated by the examiner saying that a motion to dismiss was filed with the Cebu Court and the Cebu Court granted it. so he had two families. Cuenco. CRESENTE BERNADOS. That Cuenco Street in Quezin City. Cuenco. CA. And so. cited in your book (it has to cited in your book) because that is a very leading case. CA. he was already a widower at the time. that is also cited in your book… These are questions about the conflicting rules on venue and jurisdiction. these are the cases about venue and jurisdiction…emphasizes these cases cited in all books. but because of the Rule. Philippine reports pa ito. and the second family with his second wife. a 1975 case. Court on its own (motu propio) said “we are going to give way to the court in Cebu to settle the estate. IRVIN BAUTISTA. his residence was in Cebu. also the case of Fule. After the 9. Eusebio and finally settled in the case of Fule vs. vs. to the exclusion of all other courts. including the Cebu Court. filed a petition for the settlement of his estate in the RTC (Then CFI) of Q. Why? Because the Cebu court did not acquire jurisdiction because the petition was first filed in Q.) A: It is now settled (because of there cases) that residence is only a matter of venue. you find it already in the SCRA.C. It is not a matter of jurisdiction. that is wrong. It is not a matter of jurisdiction but only of venue. et al.C. Is that clear? Take note of that doctrine because that is very basic in Settlement of Estate. This case of Cuenco is about Senator Cuenco.day novena for his demise. The issue was in fact wrong: Which court has jurisdiction? Mali. If you want to read it. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. the court which first takes cognizance of a petition for settlement of estate. Eusebio vs. parallel to España or Quezon Blvd. Why? Because the Q. filed a petition for settlement of his estate in Cebu. When he died in Quezon City. It should have been correct if anybody interested in the petition files a motion to dismiss on the ground of improper venue but there was none. the heirs of Senator Cuenco. This reached the SC. Court. et. Wrong. al vs.C. C. 1 of the Rule there does not speak of jurisdiction but only of venue. This case was followed by the case of Eusebio vs. That is why if ever the court cedes its authority in favor of the Cebu Court. since it was first filed with the Q. Cuenco. you can find it in the Philippine Reports.” That cannot be done because under the Rule. it was already taken cognizance of by said court in Q. and there can be no dual jurisdiction here because the Rule says: the court acquires jurisdiction to the exclusion of all other courts. staying with him in Quezon City. . way back in 1992. But the greater error here is not the error of the petitioners but the error of the Court.(You must have come across the leading case.C.

anim. the residence is that of the original. hindi lang two. Regular Administrator Q: In what instances may the court appoint a special administrator? A: 1. in other words.) Fule settled that residence is the place of actual habitation or it may not be the place of actual habitation. Manila. regarding these two will give you also the distinction between an executor and an administrator. Delay in granting of Letters of Administration. the executor refuses to accept the trust or fails to put up a bond… These are the requirements: He is either not qualified. Why? Because there is animus manendi and animus revertendi. why is it here that they are of two kinds: with the will or without a will annexed? How would you explain that? Kailan nangyayari ito? If you are a custodian of a will of the decedent. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. mayron pang kerida. CRESENTE BERNADOS.. . lima. 2. what are they? A: Rule 80 1. or if there is a will but does not designate an executor. he fails to accept the trust. marami. what is your obligation? A: To deliver to the court the will within 20 days after the death. Intestate. in different houses. there is a will. Rule 75) Q: Are you bound to file a petition? ANGELO NIÑO SANTOS. or even if there is an executor. But if only Pacquiao studied law. Let us go now regarding these two: It can be testate or intestate. IRVIN BAUTISTA. (Sec. Q: What is the distinction between an executor and an administrator? A: The executor is the one appointed by the decedent as embodied in the will. The distinction. there is no will. provided there is animus manendi (intent to remain) and animus revertendi (intent to return). Gensan. hindi na malaman. Special Administrator ( also of two kinds): With the will or Without a will annexed. 8. there is only animus amare (intent to love)… so that is regarding this Section 1. mayron legal na asawa. he would not have run for any position in the first place… had he studied law. he would not be a millionaire in the first place. Rule 86: The executor is a claimant of the estate he represents. apat. Q: An administrator is of two kinds.. In all other residences.. Kaya pag yung isang lalaki.So that if a person has two (well nagayon. when you go to testate. Q: So. or he fails to put up a bond so an administrator may be appointed. hindi na malaman kung saan sya resident. The administrator is the one appointed by the court if there in no will. 2.tingnan nyo si Pacquiao. Sec. 2. You know testate. mayron pang kabit. at mayron ding scholar.

So when the Rule says that the probate court is a court of limited jurisdiction. because you are the custodian of the will. The court now is no longer of limited jurisdiction because it is no longer a probate court. Why? Once a will has been probated. The probate court ceases to be a probate court upon allowance or disallowance of a will but it remains to be a court no longer of limited jurisdiction. It is only the first stage in the testate proceedings. Q: Ano ba ang end of settlement of estate? ANGELO NIÑO SANTOS. if you are an heir. Even lawyers do not realize this. Sabi nila probate court yan so you cannot question. a legatee. and you filed a petition for settlement of estate. approval of the accounting. Under this lesson on a probate of a will. that’s the end of it? No. you simply file a petition without the will annexed. and with more reason. I was telling you that settlement of estate is the best example of multiple appeals. The obligation there is only to deliver the will. IRVIN BAUTISTA. That is why I was emphasizing on the petition as settlement of estate and not as a petition for the probate of a will. what is the first stage? A: Probate of a will. after the will has been allowed or disallowed which is a final resolution which is a final order or resolution of the court which is appealable. Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction? A: A probate court can only rule on the due execution of the will and not as to its intrinsic validity... there is this general proposition that the probate court (the court probating a will) either the MTC or the RTC. You may either be the named administrator. But the appeal here is by record on appeal because it is multiple appeal. If you are in the custody of the will. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.A: No. In many instances. . you have an interest. But if you are not in custody of the will and you are interested in the settlement of the estate. Pagkatapos nun. you have to attach the will in your petition. but you do not transfer courts after the will has been probated. diba? Because in the settlement of estate there are several stages. So as a probate court.papaano limited pa yun? No longer. Q: If it is a testate proceeding. This is what you have to understand. the court is no longer of limited jurisdiction because it has to go…appointment of the administrator or executor. only as far as the probate of a will is concerned. a devisee. or a creditor. the court is limited to the issue of authenticity and due execution. you cannot raise the issue of ownership. approval of the inventory. is a court of limited jurisdiction. But if you do file a petition. then payment of debts. CRESENTE BERNADOS. you must have an interest in the estate.

must be decided. It is only provisional and it can be contested in other proceedings and the rule on res judicata will not apply. Limited jurisdiction applies only to the authenticity and due execution of the will. but what is stated in the petition do not belong to the estate. The first stage of settlement of estate. much later. the nature of the court as a probate court ceases. The objective of the settlement of the estate is the distribution of the estate among the heirs or those entitled thereto. in the very petition. ANGELO NIÑO SANTOS.A: Distribution under Rule 90. CRESENTE BERNADOS. Once the court allows or disallows a will. that was also the issue involved. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. But if the probate court cannot continue without deciding the issue of ownership. but also settlement of the estate. as the case may be. Q: If an oppositor enters the picture. In the case of Balaraw which was assigned to you. The oppositor is not only opposing the probate of the will. Q: Once the will is allowed. although not heirs (those persons named in the will). Q: Why is this so? Why does this issue pop up here? A: This is because during probate of the will. the jurisdictional requirement is that you have to state what constitutes the estate and the value of the estate. there is no defendant. A is accused of a crime of falsification of documents by forging the signature allegedly of a testator and during the pendency of the criminal action. It cannot because the court has only the duty of discussing whether the will has been duly executed so this is only as to the extrinsic validity of a will. What does it mean? A: Rule 76: Allowance of the Will If Mr. can the court decide the ownership of those properties? A: No. That is where the limited jurisdiction comes into the picture. That is where the court has limited jurisdiction. the issue of ownership being incidental (intimately related to the issue of probate) to the probate of the will. if it is a testate proceeding is the probate of the will. the issue of limited jurisdiction no longer applies. The issue of ownership is outside the jurisdiction of the probate court. the disposition of the will. now. IRVIN BAUTISTA. The equivalent of a defendant in a probate proceeding is the oppositor. Jurisdictional facts. The intrinsic will come much. but the decision here is not final. Therefore. for one reason or another. In the beginning. . the oppositor says mali yan because what constitutes the estate are these properties.

Q: Suppose a will was executed and allowed (probated) outside the Philippines. Should that will be also allowed in the Philippines? A: No. the court should appoint an administrator. That is how to re-probate a will which has already been allowed. These are mandatory requirements. . Wala na yung forgery because the probate of a will only avows the fact that the signature there is authentic. (So kita nyo ang correlations. That the testator had his domicile in the foreign country and not in the Philippines. Q: What are you supposed to establish or prove in the re-probate of a will? A: 1. Thereafter. Q: Who may petition for the allowance of the will or who may oppose thereto? ANGELO NIÑO SANTOS.for restraining his liberty no longer exists. These must all be established in the Philippine courts. 3. Supposing he is not released. 2. what happens? A: Go to the next Rule. A was probated and allowed. Suppose he has been convicted.S. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. IRVIN BAUTISTA. he shall be released. that there was due execution of the will. 4. 48. Rule 77: Allowance of Will proved Outside of the Philippines and Administration of Estate thereunder. That the laws of a foreign country on procedure and allowance of wills. Rule 39: Foreign Judgment.the will allegedly forged by Mr. Once it is probated in the Philippines. This rule shall be read in conjunction with Sec. The case against A for falsification should be dismissed. The fact of death (jurisdictional fact) of the testator in a place within the territorial jurisdiction of the court. The foreign allowance of a will leads to the appointment of a domiciliary administrator. 5. CRESENTE BERNADOS. your remedy is to file a petition for habeas corpus because the basis . his will was probated in the county state of San Bernardino. the court appoints an ancillary administrator. The due execution of the will in accordance with the foreign law. That the will has been admitted to probate in such country. That will has been allowed in the U. Q: What should anyone interested in the allowance of the will in the Philippines do because the deceased had property in the Philippines? A: It should be re-probated here and the venue is in the proper court of any province where the decedent had property. Q: An American citizen residing in California died in California. 6.) We are talking here of allowance of the will within the Philippines. the criminal case should be dismissed because the probate of the court is final and if not appealed becomes conclusive. The fat that the foreign tribunal is a probate court.

insanity or incapability or unsuitability to discharge the trust. 2. Q: Suppose in the very will. absconding. Rule 82: Revocation of Administration. is incompetent. can he be appointed as administrator? A: Yes. neglect to render accounts within 1 year or when the court directs. can he be removed? On what grounds? A: Yes. or 5. when such person: 1. may the court appoint another one other than the one named in the will? A: Yes. He is incompetent if: 1. Death. 3. conviction for an offense involving moral turpitude. . CRESENTE BERNADOS. Sec. 2. what happens to the regular administrator? A: The regular administrator is not removed by the appointment of the special administrator because the regular administrator has a claim under Sec. Resignation and Removal of Executor or Administrator. The special administrator only has a specific function which is only to work on the claim of the regular administrator. a minor 2. one who in the opinion of the court is unfit to exercise the duties of the trust by reason of : a. drunkenness b. want of understanding and integrity d. neglect to perform an order or judgment of the court or a duty expressly provided by these rule. Grounds: 1. when one has already be appointed. neglect to settle the estate according to the Rules. improvidence c. ANGELO NIÑO SANTOS. Q: In the course of the administratorship. and 3. a non-resident 3. 4. the testator named an executor of his estate. 2. He is not a drunkard. IRVIN BAUTISTA. fails to give a bond. Q: If a special administrator is appointed because the regular administrator has a claim against the estate. refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is candy flavored). Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep.A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent Q: What are the qualifications for one to be appointed as administrator of the estate? A: Any competent person may serve as executor or administrator. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. 8 of Rule 86.

Magkaka halo halo). What are the duties of a special administrator? Sec. Q: Can he encumber the property of the estate through lease? A: It depends. sell only: a. Reason: An executor takes charge of the estate. there will be no end to the settlement of the estate. Later on Piolo died. Example: Richard is the testator. Can the court nonetheless require a bond? A: Yes. CRESENTE BERNADOS. If you are an executor and you died and you have an own estate and the executor of your own estate will now execute the estate of your testator that appointed you. 2. pay debts only as may be ordered by the court. he can because it would fall under acts of administration. In the will of Piolo. there will be conflict of interest (Magkakaroon ng sama sama yung estate. the continuation of the duties and functions of a special administrator will now reside in the special administrator. Rule 80: possession and charge of the properties. he appointed Sam as his executor. It is only interlocutory and unappealable because if you appeal the appointment of a special administrator. Sam cannot be the executor of the estate of Richard. . those ordered by the court 5. He appointed Piolo as his executor. X as special administrator. 2. perishable property. But always remember that if it is an act of disposition or conveyance. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. and b. Beyond that. it is already an act of disposition Q: If the court appoints Mr. The special administrator is likewise required to put up a bond. Q: Suppose the testator in naming an executor of his estate specifically states there that he should serve as administrator without a bond. Once a regular administrator is appointed. 3. preserve the properties.The executor of an executor cannot be appointed as executor of the principal testator. which ANGELO NIÑO SANTOS. The court has a very wide discretion. IRVIN BAUTISTA. To avoid possible corruption in the administration of one’s estate. 4. is the order final and appealable? A: No. Q: A: 1. commence and maintain a suit for the estate. If the lease is not for more than one (1) year.

. His first duty is to prepare an inventory within three (3) months from appointment and within one (1) year. IRVIN BAUTISTA. CRESENTE BERNADOS. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. You always file a motion for leave of court to sell a specific property and this is part of your accounting one year after.cannot be done by an appointed executor or administrator without permission of the court. Accounting is one of the principal duties of an administrator. prepare an accounting of his administratorship and the bond that he put up is precisely to answer for the misadministration . RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY ANGELO NIÑO SANTOS.

Family Code: entitled to support from the estate. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. CRESENTE BERNADOS. even if 18 years of age are still Read Ruiz Case RULE 86 CLAIMS AGAINST ESTATE Q: What may be claimed against the estate? ANGELO NIÑO SANTOS. legitimate surviving spouse. children of the decedent (legitimate & illegitimate children) Relate to Art. IRVIN BAUTISTA. Children. .Q: Who are entitled to allowance during proceedings? A: 1. 194. and 2.

Q: Suppose they are not yet due? A: Yes…whether due. Q. Contractual money claims. . ANGELO NIÑO SANTOS. Whether or not the extra judicial partition bet among the heirs were valid 3. Can prospective heirs whether under the testate or intestate enter into a partition over the properties belonging to the estate? A. Testate Proceeding. Was it really a partition? A: According to the SC they may act to put an end in any indivision is considered and deemed to be a partition. Bec it is partition. Whether or not estoppel applies 2. 4.CLAIMS) STATUTE OF LIMITATIONS: prescriptive period in the Civil Code. expenses for the last illness. and judgments for money. There can be no partition until and unless the will is allowed or probated. Whether or not it is necessary for a partition to be approved by the probate court 4. funeral expenses. IRVIN BAUTISTA. 3. Provisions on a holographic will. Q: Suppose they are not due yet. not yet due. Q: When do you file it? A: Not more than 12 months nor less than 6 months after the date of first publication. There can be no partition in a testate proceeding before the will is allowed. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. it amounts to distribution. Otherwise it is deemed waived. Whether or not the respondent could be held jointly liable with Santibanez. Q: What is the rationale behind that? A: Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the property partition. CRESENTE BERNADOS. or contingent. you can file against the estate. 2. The parties entered into an agreement. FCC vs Santibanez Q: What were the issues assigned as errors before the CA? A: Issues 1. can they be filed against the estate? A: Yes.A: 1. Q. (STATUTE OF NON. It wasn’t clearly stated in this case.

. The court looks into it as an act of divesting of its jurisdiction.Distribution is the final stage in a settlement proceeding and there will be no distribution of the estate until and unless all debts has been paid.after all the debts has been paid. estoppel will not arise therefrom. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. What is a statute of non-claims? A. if the claim is due. Extrajudicial foreclosure . it must be accompanied by affidavit stating the particulars Sec 10 Answer of executor or administrator 1. IRVIN BAUTISTA. Serve a copy on the executor or administrator 3. you don’t get any deficiency judgement Q: Sec 9 How to file a claim A: In form of a simple application form 1. Q.you solely rely on his mortgage.deficiency judgement – by motion only in the same action 3. If the act is null and void. Foreclose the mortgage . Executor may file answer within 15 days from the service of claim 2. A claim against the estate shall be filed within a period of not less than 6 mos and not more than 12mos from the date of first publication. if the claim is not due or contingent. a void act of declaration or omission of a party cannot be used as evidence against the party. Settlement of Estate Sec 7. CRESENTE BERNADOS. Deliver the claim to the clerk of court 2. it must be supported by affidavit stating the amount due and the fact that there has been no effects. Answer must set forth claims which decedent has against claimant or else it will be barred forever. 4. Q: Are the heirs liable? A: The SC said he did not even established the fact that you are the proper party in interest because Union Bank did not show any evidence to prove that you are really the affiny. Q: Can principle of estoppel be applied? A: The SC said the principle of estoppel will not apply because the basis which is the extra judicial partition is in fact void. ANGELO NIÑO SANTOS. Mortgage debt due from estate Remedy 1. Claim against the estate .judicial . upon distribution 2.

So. (yung owner ng bus. What is the relationship bet a statute of non-claims and limitations? A. Q: Suppose Mr. That is the meaning of the “statute of non-claims supersedes the statute of limitations. A file a case against Mr. However. if B died in 1999 of December. That is the date of the accrual of the cause of action (Jan. B died in 1995.claims will not apply if there is no settlement proceedings. 1990). RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS We have limited claims against the estate to the following: ANGELO NIÑO SANTOS. So you have 6 months and it was published March 20. B. 1990. The statute of non-claims prevails over the statute of limitations. B to Baguio. Q: Mr. Otherwise the statute of non-claims will not apply. . An ordinary prescriptive period in a civil case is 10 years from accrual. nor more than up to the 19th of March 1996. you can no longer file it because it is beyond the statute of non-claims. the ordinary action. and not more than 12mos from the date of first publication. you have not less than 6 months from March 20. Can Mr. Mr. IRVIN BAUTISTA. Even if it is within the statute of limitations. Q: Suppose notice was given on March 1.” On the other hand. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. 5. He never reached his destination because the bus fell over a ravine on January 5. the presumption here is that there is a settlement of the estate of B. not Mr. the statute of non. Philippine Rabbit. you have only have up to January of 2000 because the action has already prescribed.Q. owned by Mr. The statute of limitation is a period provided for in the Civil Code where actions prescribe. 1995. B on March 2001? A: No because the action is barred by the statute of limitations. CRESENTE BERNADOS. Can you file it in 1998? A: No because it is beyond the statute of non-claims. Bean) What should A do? A: File a claim against the estate within a period of not less than 6 mos. A took the bus. A statute of non claims supersedes a statute of limitations.

There can be an administrator even if there is no estate proceeding because you can even undertake extrajudicial settlement of the estate. Contractual money claims.. Kung walang executor. it is already through. tapos na yan. you always file it against the executor or administrator. the estate cannot sue and be sued. Meron bang testate or intestate proceeding? Not necessarily. 2. funeral expenses. it is an independent action. you are also limited to the following claims or actions: 1. In guardianship over the ward. you cannot file any claim.1. So contractual money claims. You mean to say that there can be no administrator without an estate proceeding? No. That is why you file against the executor or administrator. whether testate or intestate… without that . and judgments for money. In 87. Iba yun sa Guardian ha? A guardian can be a juridical person. bakit executor. You might say. hindi. ano gagawin mo? Iinitiate the testate or intestate proceeding so that you file a claim. These are considered as contractual money claims under Rule 86. It cannot be sued because under Sec. But in 87. it is a separate and distinct action. It is only an entity authorized by law in special cases. 2. Hence. bakit against the executor or administrator? A: Rule 86 is not an action… tapos na dyan yung action. dahil tapos na. expenses for the last illness. it is urgent… urgency of the subject matter… so the presumption in 86. As a general rule. . the guardian cannot be an artificial being or corporation. it is only an entity authorized by law. In extrajudicial settlement there can be an agreement by and between the parties as to the administrator of the estate. The estate does not have a separate and distinct personality. meron yan. only guardianship over the property of the ward. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. 3. where will the executor or administrator get his money to satisfy your prayer in your action? Hindi ba from the estate? So why not against the estate. CRESENTE BERNADOS. 4. that there must an estate proceeding. so that if it is a complaint. Suppose wala. administrator? Kaya nga ‘or’ because when you say executor. you will note that you cannot file a claim against the estate if it is claimable under Rule 86. Recovery of real or personal property. administrator. IRVIN BAUTISTA. When you go to Rule 87. It can only be sued in certain instances. ANGELO NIÑO SANTOS. It is not an independent action here. Rule 3 (Who may be parties). Pero dito. Judgment arising from injuries Q: In actions by and against executors and administrators. Recovery of interest or lien therein. 3. Remember that an executor or administrator is a natural person.1. That is why in Rule 87.

Is there an exception? What did you Labor Law teacher teach you about that? A: PNB vs. taxation is the lifeblood of the government. devisees and legatees. Rule 86? A: NO. Sabi nga sa mga Reviewers. Rule 86 ( Mortgage debt due from estate) with Sec. A should receive P500T. B. E. 4. How much is left for distribution? A: Only P500T. how will you distribute the estate? A: Distribute the estate by ratio and proportion. even taxes give way to unpaid salaries and wages. Rule 87 allowed the alternative remedies in Sec 7. Q: Is the estate. Q: Under the rules on preference of credit. 7. D. What are these debts? There are only 5 specific kinds of debts. Funeral expenses. Pag hindi mo mabayaran avail of Rule 89: Sales. palaging ang gobyerno ang uunahin. The creditors may have affirmative remedies as to their claims against the decedent such as going after his estate. CRESENTE BERNADOS. This is the last stage. As compared to Sec. pag wala ka na daw maisasagot sa question sa taxation. NLRC case (March 1990): In case of liquidation of the assets of the corporation. C. Q: A: 1. 5. 5. But in the distribution of the estate. A. D and E. mortgages. what Rule should be followed? First. and under the will. Mortgages. Q: If there are 5 compulsory heirs. The estate is the debtor. After all these claims have been settled. 7. there shall be payment of debts. IRVIN BAUTISTA. and other Encumbrances of the Property of the Deceased. 5. under Sec. Q: The estate is worth one million (P1M).P50T each and what remains is only P500T. He is only allowed one remedy which is foreclosure. After payment of debts. the mortgagor (‘mortgage due from the estate’). C. Expenses for administration. all debts have been paid.Q: Compare Sec. B. 5. taxes are given priority. . The fundamental reason for sales. before distribution. But in all other instances. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. Rule 86 are the estate of the decedent and the creditor. A: The parties under Sec. you go now to distribution. Allowance for the widow.P100T. Rule 87. 3. 2.P100T. all that had been paid amounted to P500T. and Taxes. ANGELO NIÑO SANTOS. the estate is the mortgagee. Debts of the decedent. Rule 87 (Mortgage due estate may be foreclosed). and other encumbrances is to pay off debts.

4. . such as real property. under Sec. Rule 74 ( Liability of Distributees and Etate). the subject matter is already dead. wala nang babayaran. P100T. P100T and P50T to the last two. A: Remember we are talking here of the remainder. IRVIN BAUTISTA.Q: Suppose the asset was P10M gross value and the obligation was only P1M. CRESENTE BERNADOS. then you give the asset. Exception: Assets may be distributed even prior to payment of debts provided the distributee first gives a bond. (that goes to the pocket of the lawyer?) it should be distributed in accordance with intestate succession but also pro rata. If the asset to be distributed is quite important. RULE 92 GUARDIANSHIP Madali lang itong guardianship. In settlement of estate. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. Q: Can the estate be distributed even before payment of debts? A: General Rule: No. may sobra ka. You have P900T left but the will says to distribute only P500T. You know why? Because the Rules are practically the same. the subject is still alive. The remedy is to give a bond. The fundamental difference is that in guardianship. ANGELO NIÑO SANTOS. the two-year lien. We have also studied the Rules on contingent claims.

take care of themselves or manage their property. You file a guardianship proceeding only on 2 grounds: 1. Persons not of unsound mind but by reason of age. However. 4. Those suffering from the penalty of civil interdiction (a penalty attached to conviction). and other similar causes. Guardian ad litem.that which is appointed by the court not necessarily in a guardianship proceeding. and 2. ANGELO NIÑO SANTOS. Legal guardian— guardian by operation of law. Judicial guardian – that appointed by the court in a judicial proceeding for legal guardianship 2. Incompetent includes: 1. The venue is the residence of the ward. cannot. CRESENTE BERNADOS. because this guardian ad litem is only on a temporary basis with a specific duty to perform. jurisdiction may be lodged in inferior courts depending on the gross value of the estate. wastes money or property on things without reserving any for himself and before you know it. IRVIN BAUTISTA. not just appointed by any court. the result is that the adoptee will become the child of the adopter for all legal intents and purposes. If the ward has no residence and the guardianship application is over the property of the ward.Three Kinds of Guardians: 1. 6. Those of unsound mind although they have lucid intervals. in settlement of estate. “incompetent” refers to: Sec. Minority. Q: Which court has jurisdiction over a petition for guardianship? A: Exclusively and originally cognizable by the Family Court (RTC specifically designated as a Family Court because of RA 8369 ). Here. Prodigals (one who is a spendthrift. But here.: parents of minor children) 3. without outside aid. Incompetency. (ex. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. Take note that the venue here is the residence of the ward as distinguished from the venue in adoption. 2. he is not only a prodigal son but also a grasa man. the venue is where the property is situated/ located. it is the guardian that goes to the ward as the relation here is only of a temporary character. Hospitalized lepers. weak mind. 3. which is the residence of the adopter. .). Bakit? Because in adoption. There is no inferior court here. Deaf and Dumb unable to read and write. Meaning of the word “incompetent”. The term “incompetent” here is different from that in settlement of estate. 5. 2. disease.

Case of Evangelista: The petition for guardianship was granted by the court and Caniza was appointed as the guardian of Evangelista. That is the doctrine laid down in this case. After trial. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.”). can manage the properties of the ward. 16 of Rule 3: Substitution of Parties (“without a need of appointing an administrator or executor of the estate in the substitution of parties. The Rule says. IRVIN BAUTISTA. Ang importante ay pag guardian ka tapos heir ka din. there will be decision either allowing or disallowing guardianship. In other word. the case must be dismissed because the party appellant is not the proper party-in-interest. or any person who has interest. Q: Who can initiate a petition for guardianship? A: Anybody who has interest in the person of or property of the ward. then they can file their opposition. the guardian can sue and be sued. Remember. As a guardian. under the age of 18. so remand of the case to the lower court would be a waste of time and more importantly. ANGELO NIÑO SANTOS. remember the rights. CRESENTE BERNADOS. it was reversed and on appeal again from the order of reversal. NOTE: Remember that you find that also in Sec. The case is already with us. it was sustained. Ledesma: In this case. If there are oppositors. you cannot file a petition for guardianship. They were both single and they were living together. the ward died. That is why it went up to the Supreme Court. friends. can collect debts. they were able to establish interest. this is a special proceeding and jurisdiction is always acquired through publication. But pending the appeal with the CA. it is contrary to the principle of equity of justice if we have to start all over again. Even if death terminates guardianship. The SC said No. they found from the record that Caniza was one of the heirs of the ward. there is no need for the settlement of the estate. can be the subject of guardianship. Q: What is the procedure? A: File a petition with a court of competent jurisdiction in the proper venue.A minor. If you cannot establish any interest in the person of or in the property of the ward. Judgment was rendered in favor of plaintiff. And the court will issue an order setting the case for hearing. Hence. but on appeal. The issue here is that considering that there is no more guardianship because death terminates guardianship. This is a case for ejectment. hence. So one of his actions here was to ask the Estradas to vacate the premises owned by the ward. You have to establish interest. relatives. . Buyena vs. there is still a party-in-interest even if there is no settlement of the estate. appointing a guardian or not appointing a guardian. in this particular case.

If they sell the property of their ward. or that he was insane. So that the trustee can negotiate and encumber the property under trust. Even in the absence of a written contract. If the ground is based on incompetency and it is established that the ward is already competent. but also notice to all interested parties. Q: Distinction between a guardian and a trustee A: The distinction between a guardian and a trustee is that the latter has the legal title while the guardian has no legal title of the property. A trust relationship can either be express if there is a trust agreement between parties or implied if it is by operation of law. In guardianship. an executor or administrator. he is no longer insane. even with permission of the court. even if they are the legal guardians. But. a petition for termination of guardianship may be filed. the absence of notice. still renders the sale void. he has to get permission from the court. which is their own children. there is a trust relationship by operation of law. Q: In what instances may guardianship be terminated? A: Death also terminates guardianship. Q: Can he sell the properties of his ward? A: Yes. Although the same trustee may either be a trustee and a beneficiary at the same time. Examples of trust by operation of law is when parents die without a will and then some children are still minors.The guardian now enters into the guardianship after he has filed the necessary bond. IRVIN BAUTISTA. the sale of the property is void. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. This is an exception regarding lack of a minor’s legal personality to sue. may not be a party to a written trust agreement but he cannot dispose the minor's property without consent of the court for the reason that he is only in trust for the ces qui trust. Only with the permission of the court will the sale of real property be considered a valid sale. if it is real property. Even without permission from the court if the property involved is personal property. CRESENTE BERNADOS. ADOPTION Background of adoption: The rule on adoption has been amended several times ANGELO NIÑO SANTOS. then guardianship ceases as well. is worth more than P50T. . The duties and responsibilities of a guardian are similar to that of an executor or administrator . just like. being the trustee. So that you will note that the guardian here. whoever is the guardian of the minor holds the property for and in behalf of the minors in trust.. Q: Should the legal guardian file guardianship proceedings over the person and property of their minor children? A: Yes if the property of the war. even the minor himself can ask for guardianship). It is not only permission of the court which is required. but the general rule is that if the ground for the appointment of the guardian ceases. but now. If the minor is already of age (remember.

is the new rule on Adoption. NOTE: Here. evaluating the prospective adoptive parents. the dependents. CRESENTE BERNADOS. Q: Who are those involuntarily committed? A: Judicially or administratively deprived. whose parents or guardians are administratively or judicially deprived of their authority over these persons. Pag placement. and preparing the adoption home study while pag caring. which you find in 99 and 100 are no longer applicable. Minors. They are involuntarily committed. As early as the mid-70s when the Child and Youth Welfare Code (PD 603) was enacted. They have been repealed expressly. orphaned. AM 02-6-02SC.and even the rules on procedure. it is to provide comprehensive child welfare services including. These are the substantive law governing adoption. neglected or voluntarily committed therein. PD 603 was also amended by the Family Code. IRVIN BAUTISTA. Who may be ANGELO NIÑO SANTOS. But all these are no longer applicable in toto because of the new laws on adoption which should be the subject matter of today's section. dated July 2002. the Domestic Adoption Law of 1998 and the Inter Country Adoption Law of 1995 (RA 8043). the meaning of residence is the actual habituation of the petitioner. Q: What is a child-placement agency as distinguished from a child-caring agency? A: The distinction is in the services that they cater. it already amended the rules on adoption. The laws applicable now is not even the Civil Code per se. Q: What is the venue? A: The place where the adoptive parents reside. Our concern is the rule on adoption. We are only going to study 2 fundamental questions on adoption. The parents or guardians of these persons have voluntarily surrendered their parental or guardianship authority to the DSWD. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. it is like Hospicio de San Jose. and neglected children. RTC is not even a totally and perfectly correct answer because it may be another RTC. but not limited to. And within that concept. but rather it should be RA 8562. Q: Who may be adopted only? A: General Rule: one who is legally available for adoption. . receiving applications for adoption. you have the abandoned. which provides 24 hour residential care services for abandoned. Q: Which court has jurisdiction over a petition for adoption? A: It is the Family Court. Q: Who are legally available for adoption? A: Those who are voluntarily committed and/or involuntarily committed.

2. what are the qualifications? A: 1. there is no qualification as to the citizenship of the guardian. The requirement speaks of one who has not been convicted of a crime. A convicted person which has received an additional penalty of civil interdiction. Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity? A: Under the rules. Q: A person caught urinating.he must possess full civil capacity and legal rights. The only qualification is that the guardianship must have ended AND his accountability as a guardian has been completed. Once you perfect that we can go to another lesson. you can still adopt because it is not a crime of moral turpitude. which is punishable by the Revised Penal Code. NOTE: When one is of legal age. a minor cannot adopt.adopted and who may adopt. Yun lang ang qualification. Under the Rules on Evidence. recent jurisprudence say. a deaf-mute who is not able to read and write is not in possession of full civil capacity. can you not adopt? A: No.of legal age. Because it speaks of conviction.financially capable or economically capable. Q: What does possession of full civil capacity and legal rights mean? A: Give me a person who is not possessed of full civil capacity and legal right. IRVIN BAUTISTA. Q: But if you are charged of Rape. Any Filipino Citizen 2. with respect to the ward. 4. Because he must be capable of unquestionable demonstration. there must be conviction.has not been convicted of any crime involving moral turpitude. Is this not moral turpitude? A: Urinating or defecating in public is an offense and not a crime. the court can either take judicial notice of that because he is capable of unquestionable demonstration. Q: Now let's go to the Filipino. Q: Who may adopt? Or who is a qualified prospective adopter? A: 1. But if you are convicted of homicide. Any alien 3. 6.emotionally and psychologically capable of caring or children.at least 16 years older than the adoptee. thus it is incapable of contracting obligations. And remember. 5. . there must be a crime. ANGELO NIÑO SANTOS. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. CRESENTE BERNADOS. You must first be convicted. and it must be of moral turpitude. and charged of urinating in public.of good moral character. So tatlo. 3. 7. Guardian.

police. Malalaking bulas ang mga european and they seek adoption as a means of having mistresses. 2. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. etc. he must have continuously resided in the Philippines 3 years prior to the filing of the adoption. Wala namang summons sa adoption.Q: How do you establish your emotional and psychological capacity? A: Clearances to show that you have not been convicted from a crime of moral turpitude. why? What is sought to be avoided by this age gap? A: To avoid temptation. he must be of legal age. adoption is null and void. Over and above this. What I would like to emphasize is the doctrine laid down in Cang v CA. . which is that consent must be given either by the prospective adoptee. because they can be adopted. What are the requirements? A: So all the requirements applied to a Filipino prospective adopter are also required of an alien. or the DSWD. of good moral character. Q: Who may be adopted? A: General Rule: one who is legally available for adoption. barangay. CRESENTE BERNADOS. So you can adopt even your own child. Clearances from RTC. his country of origin must have diplomatic relations with our country. And these clearances will ought to show that you are of good moral character. Q: How do you establish your financial capacity? A: Certificate of employment. or guardians. Q: Another person who may adopt is a foreigner. or parents. And being of European origin. IRVIN BAUTISTA. Therefore. not convicted of a crime involving moral turpitude. You look at the history of the Civil Code of the Philippines which was adopted from the Civil Code of Spain. So that minority is not an absolute requirement to be adopted. ANGELO NIÑO SANTOS. Relationship is not even a disqualification on the part of the adoptee. Q: Who are legally available for adoption? A: There are 7. he must have a certification from his consular official that he is in possession of full civil capacity. Without that consent. if he is at least 10 years old. income tax returns. the miracle number is 16. an alien is also required: 1. in possession of full civil capacity and legal rights. You can even adopt your own grandchildren just like what Juan Ponce Enrile did to his grandchildren. as laid down in this doctrine. PNP. MTC. there is that also a 16 year old gap. 3. Q: When we speak of age gap. subject of course to presentation of evidence and cross-examination. that you are emotionally and psychologically capacitated. etc. and he may adopt under the domestic adoption law or the inter-country adoption law.

So you can now join in your prayer. Q: Where should he file this petition for adoption? (Section 28) A: 1. Q: For what purpose is this? A: One is the home study report and the other is the case study report. IRVIN BAUTISTA. legal capacity of the prospective adopter and the adoptee. This is purposely done by the law. asking for a change of name and for adoption. In fact that is only allowed if the prospective adoptee cannot be adopted by a Filipino. this doctrine does not apply anymore. Let me emphasize.4. Dati wala. It may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. the alien will come here in the Philippines and will bring the adoptee and the social worker back to his country of origin for the trial custody of 6 months will happen there. CRESENTE BERNADOS. To discourage the adoption of Filipino citizens by aliens. 2. The home study report is about assigning to the social worker of the respective ANGELO NIÑO SANTOS. So you can now have joinder of causes of action in special proceedings. In the case of Republic v. With the present rules on adoption specifically under Section 10. Filipinos have the preference of adopting. This is a good bar question. the SC said that the petition for adoption does not carry with it the change of name of the adoptee. in effect. Under present dispensation in our jurisdiction. his country of origin must allow the adoptee to become a citizen of his country. every family courts is now provided with a social worker. It may be filed directly with the Inter-Country Adoption Board. 5. Q: After you have filed a petition for adoption. where it is immediately assigned to a social worker. because there is an objective of discouragement. When an alien files a petition before the Inter-Country Adoption Board. what happens now? A: There would be a case study. Jurisdictional facts. 2. Hernandez (1997). . that his country of origin allows the adoptee to enter the country of origin of the adopter. Q: What constitutes the allegations? A: 1. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. Because a petition for adoption is exclusively cognizable by the Family Courts. it is a change of name and not a change of surname because change of surname is an automatic effect of adoption.

Q: For how long? A: General Rule: 6 months. CRESENTE BERNADOS. Q: When is the decree of adoption issued? A: After complying with the 6 month trial custody. ANGELO NIÑO SANTOS. AS simple as that. And basic requirement here is the consent given by the adoptee. the home or case study report is before the decision is rendered. but remains in the record. IRVIN BAUTISTA. NOTE: But take note that under the rule on rescission of adoption. Q: What is adoption? A: It is a judicial proceeding whereby the relationship of paternity and filiation is established. Again. But this adoption proceeding is exceptional because even the documents there are public records but are not open to the public. Q: After the decree of adoption has become final and executory. but before a decree of adoption is rendered kailangan pa ng isa pang report which is the trial custody report. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. why it is allowed under the rules. this is another undertaking of the DSWD. And this is the reason of the confidential nature of the proceedings. The general objective of adoption. Under the rules. the petition during the hearing is that the prospective adoptee is already living with the adopter. there can be no stipulation of facts here or confessions of judgment.adoptee and the case study report is about the prospective adopter. Tignan niyo. Remember that one of the rights of a party in litigation is the right to a speedy and public trial. Q: After the hearing. which means that the old birth certificate is not deleted. There must be actual presentation of evidence here. it is mandatory that the petitioner must appear and testify. may the court render judgment now? A: The judgment referred to here is not similar to the judgment that we have ordinarily because the judgment here is always subject to the issuance of another decree of adoption. . the issued certificate of the civil registrar's office is cancelled in favor of the old birth certificate. Exception: when it is in the best interest of the child. what is the next? A: There should be a new birth certificate issued. is that which leads to the benefit of the adoptee. Ang finality dito is not the finality of the judgment but rather the finality of the decree of adoption. not anybody can get it including the new birth certificate issued to the adopter. the parents or the guardians of the adoptee. Similar to an annulment of marriage case.

HABEAS CORPUS Q: What is the constitutional provision about habeas corpus? A: The privilege of the writ of habeas corpus shall not be suspended except in ANGELO NIÑO SANTOS. IRVIN BAUTISTA. the adopter cannot rescind the adoption but only disinherit the adopted child. . IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. An adopted child has all the rights of a legitimate child. when a decree of adoption is final and executory. CRESENTE BERNADOS.According to a noted professor. there is the total and absolute cut of any legal relationship between the natural parent and the child. Under the new rules.

illegal detention or confinement. the writ is available because that is the immediate remedy. illegal withholding of custody from a person entitled thereto. . Because what do you intend to annul there? wala. it is directed in two conditions. It is not the writ which is suspended but the privilege. Although you can also file certiorari but it is no longer immediate here.cases of invasion or when public safety requires it. can the parents file a petition for a writ of habeas corpus? A: It depends. Q: What is an example of the second instance? A: Malimit itong mangyari within the family. 2. Q: What is an example of the first instance? A: Violation of the constitution. or an order from an authority which has no jurisdiction. Q: If a woman leaves the parental home in order to stay with her paramour. whereby a person is deprived or restrained of his liberty or not afforded a right to due process. and then the convict has already stayed for more than that period of time. which are: A: 1. Q: Suppose a judge renders a judgment penalizing a person with imprisonment of 6 years 1 month and 1 day. is the writ available? A: Yes. the writ of habeas corpus is not available. Q: What is a writ of habeas corpus? A: It is an order or judicial process directed to the person to show cause for the reason of detention. IRVIN BAUTISTA. Q: What is a preliminary citation as compared to the writ of habeas corpus or the peremptory writ? A: Preliminary citation is a citation to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue (detention not patently illegal). a writ of habeas corpus is available. where the mother or father fights over for the custody of the child. Preemptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance wherewith is punishable. But when a child comes of age. ANGELO NIÑO SANTOS. CRESENTE BERNADOS. It is directed to someone who commits an act of either illegal detention or confinement or illegal withholding of custody from a person entitled thereto. If the child is a minor. Q: By that definition. it is not mandatory where the court may dispense with the issuance of the preliminary citation and go directly to the issuance of the writ of habeas corpus. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. In preliminary citation.

restraining the liberty of another. IRVIN BAUTISTA. But if it is only a plea of the facts stated in the return. merong desisyon ang korte that this one should be imprisoned because he was denied bail although is appeal is still pending. CRESENTE BERNADOS. must give a return upon receipt of the writ of habeas corpus. . that is not a commitment order or judicial order. When the jail warden prepares the return. Hence. the father will show that he has the right to take custody of the child and not anymore the petitioner. which is brought to the court. in the return. Therefore. They have only been amended but are not yet repealed by RA 9048. Therefore.A person in custody of another. he says that this person is under a commitment order. So a writ of habeas corpus is directed to a jail warden. that is coming from a private person. If the return contains prima facie evidence of the detention. then the one who has the custody of the person has the burden of proof. That return can either be prima facie evidence of the detention or a plea of the facts stated therein. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. an affected person can avail of Rule 103 or Rule 108 without ANGELO NIÑO SANTOS. That is prima facie evidence of the cause of his detention. it says well i am taking custody of this child because i am the father. then petitioner has the burden of proof to show that the detention is illegal. RULE 103 (CHANGE OF NAME) and 108 (CORRECTION OF ENTRIES) are still applicable. that is not prima facie evidence but only a plea of the facts stated therein. Q: Ano ang ibig sabihin nito? (Section 13) A: The content of the return as to whether it is a plea only or prima facie evidence of detention. they distinguish as to who has burden of proof. and when that is submitted to the court. But if the return. the applicant has the burden to establish that that commitment order is illegal.

That the name is ridiculous. To avoid confusion. Your name is very difficult to pronounce or write. Those which are in the custody of the register of deeds. What you have to seek is change of name because ANGELO NIÑO SANTOS. You can only avail of RA 9048 if the change sought is clerical or typographical in nature. If the change are substantial. it does not only refer to name or nick name but also to family name. If your name is Osama Bin Laden. 6. Under Rule 108. Where the registry is located in case of correction of entries. Under RA 9048. you have to correct entries in a document. Q: Venue? A: Residence in case of change of name. CRESENTE BERNADOS. you can have it changed. 4. And the enumerated public documents where entries have had are as many as possible. Therefore. Q: What are the amendments to these two rules brought about by RA 9048? A: Remember that RA 9048 speaks only of names and nickname but when Rule 103 says change of name. If your name is Lucifer. Q: Which courts have jurisdiction over Rules 103 and 108? A: RTC. 3.RA 9048 being violated. being administrative. is that typographical or clerical error? A: There is no error there. If your name is supercalifragilisticexpialidocious. So if you want to change the family name you cannot avail of RA 9048. Cecilia. specifically the Family Courts. Tainted with dishonor. Q: Name is Maria Cecilia when in her birth certificate it shows as Ma. you cannot avail RA 9048 but Rule 108. 2. 5. IRVIN BAUTISTA. . you can have it changed under Rule 103 or RA 9048. In case of Rules 103 and 108. RA 9048 is known as administrative procedure of changing one's name or nick name or administrative procedure of correcting an entry in a document. Q: What are the grounds? A: The same grounds. they are judicial processes. To avoid foreign alienage. it is extrajudicial. So the same grounds either under Rule 103 or RA 9048. That you are known by the name in the community. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. the same grounds: 1.

If there is error you can change it under Rule 108 and not RA 9048. it is a motion for reconsideration. It also can be done abroad. he has to file it in Baguio and under the rules the two civil registrar.Ma is different from Maria Cecilia. If the civil registrar affirms the denial. But that is not an appeal. CRESENTE BERNADOS. wala naman kasi appeal sa administrative remedies. Appeal under Rule 103 or 108 is ordinary/ regular appeal. and it was denied. A was born in Quezon City. Although it is not really an appeal. it is a matter of communication. you file a PETITION under Rule 108. Should he go to Quezon City in order to file under RA 9048? A: No. It is not an appeal but a motion for reconsideration. Where do you appeal or what is the remedy? A: The remedy is to go to the Civil Registrar General who is the Manager of the National Census Administrative Office. by filing the same with the Philippine Consulate. Q: Going back to RA 9048. you use the word appeal for facilitation of better understanding. that of Baguio and Quezon city will coordinate. NOTE: Appeal in RA 9048 is with the Civil Registrar General. motion for reconsideration siguro. he now resides in Baguio City. it is not really an appeal. status. In RA 9048. IRVIN BAUTISTA. ANGELO NIÑO SANTOS. There is no error there. Q: Suppose you do it under Rule 108. You cannot avail of RA 9048 if it will change sex. or nationality. IVY MINETTE MENDOZA and SARAH JANE CASAUAY UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED. .