le) ee ‘3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of 2 court, and acting as such without authority; 6. Failure to obey subpoena duly served; 7. The rescue, or attempted rescue, of @ person oF property in the custody of an officer by virtue of an order or process of a court held by bir, Section 4, How proceedings commenced 1. An order or formal charge by the court requiring the respondent to show cause why he should ‘not be punished for contempt; or 2. A verified petition charging, indirect contempt ‘Contempt consists in: | May also be ordered to 1. Wolation of awrit of | make complete restitution injunction; to the party injured by such 2 TRO; violation of the property involved or such amount as ‘may be alleged and proved 3. Status quo order ‘The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing 2 fine unless the court otherwise provides. Section 8. Imprisonment until order obeyed Section 9. Proceedings when porty released on bail fails to answer When a respondent released on bal fails to appear on the day fixed for the hearing, the court may sue another with supporting particulars and cert of arest or may order the bond for his appearance copies ofthe necessary documents anéffiapers. Seated ard confetti, te Boek Section 5. Where charge to be fled Where the" charge for indirect Contempt has. 2 commie sai » Renal Til Cou. o°§ St etuvalent or higher rank, o gait a ic: vic the charge may be ld with ul ei ek ‘Where such contempt has been cirwmiél against @ £ ¥' fower court, the charge may be filed with the ‘Trial Court of the place in which the lower court iss but the proceedings may also be instituted in such Vower- court subject to appeal to the Regional TrialCourt of such {? place in the same manner as provided in Rule. Section 6. Hearing, release on bait Section 7. Punishment for indirect contempt -njured. if there és no aggrieved party, the bond shall be esp indirect contempt Fine not exceeding thirty committed against R1Cora | thousand pesos or court of equivalent or imprisonment not higher rank ‘exceeding six (6) months, or both [Cbrlcnipt committed — | Fine not emceading five against a tower court ‘thousand pesos or i ‘imprisonment not ‘exceeding one (2) month, © acboth: w be practeded against the measure of damages shal be {xen the sorry sitaned bythe aereved of the miscondet for which he contempt apes with the cots ofthe proceing, chal he forthe Benet ofthe pory fable and disposed of asin criminal cases. Section 10. Court may release respondent SELL OBB "10 SStion Review of inl Judgment or final order; judgment against the person adjudged to be in Contempt fs immediately executory and can be stopped ‘only by fling a bond. Section 12. Contempt against quasi-judicial entities evar Aity. Arroyo Aty. Salvador ty Viniuan Judge Boilaci; Heads: Caisse Faylona, Maria Kristina San Understudy: Rexamne Tadique, Alexis Gmagala; Volunteers: Grace Escosia, na Blanka Si, Nash Marchomsalc Suarez 229CENTRAL BAR OPERATIONS 2010 pas ees NOTE: (5) and (6) are repealed by @ special law. The Philippines now follow the rules in Inter-Country Adoption. ‘SPECIAL PROCEEDING (10) is repealed by Sec. 119 of the Corporation Code. (11) This is a remedy by which 2 paty seeks to extabish aay voptated by the laws here Ko mone eamckon status, aight oa particular fact. Rue, Sc. 3) between legate children, (12) was superseded by Art 1 of the Family Code. To protect or enforce a To establish a status, right, | OTHERSPECIAL PROCEEDINGS Night, oF to prevent or | oraporteular fact 1. Uuidation proceedings redress wrong aa 2. Imra-corpocate controversies Governed by ord ves 3. Corporate rebabttaton ‘ipplemented by, pecial| supplemented by ofdinary ] 4. ‘Recogniton and. enforcement of arbitration inated by Compan 5. Vocation, setting aside, corection or modiition of Based ona cause of actin anarbiral award ; 6. Ay aplication with a cour for arbitration assistance rae ard supervision Definite Parties 1 Writ of Amparo mea TE Heard. by courts of general Séétion 2:Applicability of rules of civil actions hurtin es aerial [A the shuence of special provisions, the rules provided fr eva terest GE" it ordinary agjions shall be, as far as practicable, ‘Biids other parties applicable in spetial proceedings. Statute... oF Limitations i applies + in the determination of the nature of an action or 5-day appeal paved proceeding, the averments and the character of the Single appeal hig sought in the complaint/petton shall be RULE 72 SUBJECT MATTER AND APPLICABILITY OF (OF SETTLEMENT OF ESTATE OF DECEASED (GENERAL RULES ae I: 1, Bitrajutical Settlement of Estate (Rule 74, Sec. 2) ‘Section 1. Subject matter of special proceedings iL Extract partion 1 Setfadjudication 1. Settlement of estate of deceased persons 2. Summary Settlement of Estate of Small Vale (rule 2. escheat 74, Sec.2) 3. Guardianship and custody of children 3. _udicial Settlement of Estate 4. Trustees 1 Partition (Rue 69) 5. Adoption |L_ Probate of Wil (Rule 75 to 79) 6. _Rescission and revocation of adoption 4. Petition for Letters of Administration in case of 7. Hospitalization of insane patient Intestay (Rule 79) 8, Habeas corpus 9. Change of name 10. Voluntary dissolution of corporations 11. Judical approval of voluntary recognition of minor natural childeen; 12. Constitution of family hone 13, Declaration of absence and death 14. Cancellation of correction of entries in civil registry 1 nce ty Gussie Ay Arye Atty. Salvador Ay, Wiuar Underside Roxanne Tdique AlenisCimagal; Volurtears: Grace Escola, a Banka Siva, Nash Marchomsaic KSuaret = iuan Judge Bonifecio; Heads: Garissa Faylona, Maria Kristina Santos; 130CENTRAL BAR OPERATIONS 2010 ‘+ Place where person alleged to be insane is RULE 73, rman VENUE AND PROCESS acieeeea LSC (orignal, concurrent with RTC) JURISDICTION AND VENUE ii CA original, concurrent with RTC) 1 ta of dace s i, RIC (within ts respective region) See ae cele ee IN. MTC (inabsence of RC judges in province/city) 300,000/200,000 (Manila) 9. Change of name ii, MTC Gross value ofthe estate does not exceed i. Judicial (Rules of Court): RTC in place where 'P300,000/P400,000 (Manila) petitioner resides: ‘+ If resident ~ place where deceased resided Fi. Administrative (RA 9048): attime of death Gall registar where entry & located or if ‘+f non-resident ~ place where deceased had applicant migrated: civil regstar in place estate where he resides * NOTE: MTC jurisdiction is exclusive of © — Consul General: if applicant resides abroad Interest, damages of whatever kind, 10. Yoluntary dissolution of corporations: SEC attomey’s fees, litigation expenses and 31. Constitution of family home: under the Family Code, costs. 2. Escheat ie Ordinary escheat proceedings: RTC gts | oi resident ~ pce where eased lst j teslded Constitution / Laws: RTC where land ies orin [eon Wi, Uncamed_deposts he st I8E of. province where bank s le Erect ae ne a Hoonesidentplace here he had estate _ 4, ‘tis deemed constituted on a house and lot from the time itis occupied as a family residence ration of abser RTC Se Place where absentee resided before his sp: apiearance Cantiation of correction of entries in cil registry i uel (Rules of Court): RTC ‘= Place where the chil registry is located ji. Administrative (RA 1948): + Gl registar where entry is located or if applicant migrated: civil registar in place ‘+ all banks located in i pebince where courte «0 ‘Where he resides is located may be made parties defendant. ©" © Consul General: if epplicant resides abroad int action Ce ee f 3. Grcular No. 21-99 (15 April 1999), the new ‘amounts 0s adjudged under RA 7691 will be place where minor/incompetent has property 4. Trustees RTC ~ Gross value of the’ estate exceeds #300,000/°400,000 4. MTC ~ Gross value of the estate does exceed '300,000/"400,000 + Iwill alowed ia the Philippines — court where will was allowed ‘+ If will allowed outside the Philippines ~ court in place where property is situated 5. Adoption: RTC ‘* tf domestic adoption ~ place where adapter resides ‘+f inter-country adoption — court who has jurisdiction over the adoptee 6. Rescission and revocation of adoption: RTC ‘¢ Place where adoptee resides ‘Outside | REMEDIAL LAW REVIEWER ‘3 ‘An administrator is deemed unsuitable and should be removed where his personal interests conflict with his official duties, by vite of the equally established principle that an administrator is quasi trustee, disqualified from ‘acquiring properties of the estate, and who should be Indifferent between the estate and claimants of the Property except to preserve it for due administration, and Who should be removed when his interest conflicts with such right and duty. (Medina vs. Court of Appeals, 53 SCRA 206 (1973)) Nominated by the testator ‘and appointed by the court ‘Appointed by the court in ‘case the testator gid not appoint and executor or if the eiecutor refused of the will was disallowed or We present wil oe court within 20 days after ‘knowledge of death oF at Stich appointment, unless the wil has reached: the ‘court in any manner “Testator may provide that | Must always post band'”2 ©) he ay seve water 3 | eee Rane ond {court may stn] | require but condtioned _onty in payment of debts} et eT SU Ee there sno wil (intesiaay TON: [ No such-duty Pe ing spouse o¢ ‘Compensation may Be Drovided “(or by. testator ‘Otherwise; compensation, suider Rule, See: 7 sas Section 2. Executor of executor not to administer estate Section 3. Married women may serve Section 4, Letters testamentary issued when will allowed REQUISITES FOR A PERSON TO BE APPOINTED EXECUTOR OR ADMINISTRATOR: 1. Accepts the trust 2. Givesa bond 3. Competent Section 5. Where some co-executors disqualified others may act Section 6. When and to whom letters of ‘administration granted LETTERS TESTAMENTARY Its the authorty issued to an executor named in the will to administer the estate. LETTERS OF ADMINISTRATION It is the authority issued by the court to a competent person to administer the estate of the deceased who died intestate, LETTERS OF ADMINISTRATION WITH A WILL ANNEXED {tis the authority issued by the court to a competent person to administer the estate if the executor named in ‘the will refused to accept the office. ORDER OF PREFERENCE IN GRANTING LETTERS OF for nominee a Nestothitior “ik Both in the discretion ofthe court oF re W. Such person as such surviving spouse or next of € kin request to have appointed, if competent and 5 wilingto serve 2. Principal creditors ‘* IF(2) be incompetent or unwiling or they neglect for 30 days after death to apply for administration ‘Midst be competent and willing to serve {2% (2) be incompetent or uniting 2” Granted to such other person athe court may select NEXT OF KIN ‘Those who are entitled under the statute of distribution to the decedent's property. In resolving the issue of whather ‘an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of fliation, (Angeles ws ‘Maglaya 459 SCRA 364 (2005)) ‘+ The undertying assumption is that those who will reap the benefits of 2 wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or ‘mismanagement, have the higher interest and most Influential motive to administer the estate corcectly, (Gonzales vs. Aguinaldo, 190 SCRA 112 (1990))‘© The preference is nat absolute if there are strong reasons justifying the appointment of persons other than the surviving spouse, of If there Is another person faving more interest than the surviving spouse. (Guzman vs. Lumcalioc, 67 Phil. 404 (1933)) RULE 79 OPPOSING ISSUANCE OF LETTERS ‘TESTAMENTAY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION Section 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration ‘Any person interested in a will may state in writing the sufficiency of such grounds. A petition may, atthe same time, be filed for ‘administration mn he J LZ Section 2. Contents of petition administration 4. Jurisdictional facts; i Peon on wos et tg re ee A resident of a Scere rl in fact dead, a Athen fhe dnt be Wg the country wherein letters ace 2. Names, ages and residences of heirs, and creditors: 3. Probable value and character of property of estate; AND 4. Name of person for whom leters are prayed. No defect on the petition shall render void the issuance of letters of administration, NOTE: Essentially the same as contents of petition for probate, except: (1) latter has an additional requirement (the last; see Rule 76); and (2) in the latter, no need to ‘name creditors in the petition Section 3. Court to set time for hearing. Notice thereof se et OPERATIONS 2010 [REQUIRED BEFORE HEARING: 1. Publication for 3 weeks 2. Notice to heirs, creditors and other persons believed ‘tohave an interest inthe estate These twin requirements ae jurisdictional Section 4. Opposition to petition for administration ‘Any interested person may, by filing @ written opposition, contest the petition on the ground of: 3. Incompetency of the person for whom letters are ‘prayed therein, or 4. Contestant's own right to the administration, and ‘may pray that letters Issue to himself, or to any Competent person or persons named in the ‘opposition, "= 19fprn GROUNDS FOR OPPOSITION: ‘grounds why letters testamentary should not issue ta Persons named therein executors, of any of hf and the court, after hearing upon notice, shall-B8ss upon the 40 Letters Testamentary: 1 Incompetence 2. InLetters of Adtoinistration: L it. Preferential right of the heir under Rule 78 ‘Section 5. Hearing and order for letters to issue WHEN LETTERS OF ADMINISTRATION SHALL ISSUE : GC 1 Powedienatce sree ex. 3 was gen, va Prove le decedent eft no wil there tsvo “competent and wiling executor. fect en kets of adenine Aetters can be granted to any person or any other applicant even if other competent persons are present If the Istter fail to claim their leters when notified by the court. RULE 80 ‘SPECIAL ADMINISTRATOR SPECIAL ADMINISTRATOR He is appointed when there is a delay in granting letters testamentary or of administration by any cause, including ‘an appeal from the allowance or disallowance of the wil, ~Aakisrs: Ay. Guevara Ay. Aroqe Ay. Shoda Ay. Vinua judge Bonifacio; Hea: Gara Foylona, Mara Wine Sant Understudy: Rexanne Tadique, Alexis Cimagala; Volunteers: Grace Escosa, Ina Blanka Silva, Nash Marohomsali,K Suarez 140‘Section 1. Appointment of special administrator WHEN MAY A PROBATE COURT APPOINT A SPECIAL ADMINISTRATOR: 1. Delay in granting of letters by any cause including, appeal in the probate ofthe will 2. Executor is a claimant of the estate he represents (Sec.8, Rule 86) ‘+ Prior to the publication of the notice of hearing on the petition for settlement of the estate of the decedent, the probate court cannot appoint a special administrator because the court has not acquired Jurisdiction over persons interested in the estate. (De (Guzman vs. Angeles, 162 SCRA 247 (1988) + The preference accorded by Sec. 6, Rule 78 to surviving spouse refers to the appointment of a regular administrator, NOT to that of, administrator, and that the order a latter les within the discretion of the’ probate court, CENTRAL BAR OPERATIONS 2010 died intestate or did not appoint an executor in the will oF will was disallowed EFFECT OF THE APPOINTMENT OF A SPECIAL ‘ADMINISTRATOR: It means or implies a denial of the power to appoint a regular administrator during the pendency of the appeal (De ta Cavada vs. Butte) GENERAL RULE: Only one special administrator may be appointed to administer an estate temporarily. EXCEPTION: If there are two factions among the heirs and the court deems it best to appoint mare than one special administrator, justice and equity demand that both factions be represented in the management of the estate of the deceased. (Matias vs. Gonzoles, 101 Phil. 852 (1957) - Section 2 Powers and duties of special i 1. Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased 2. Preserve the same for the executor or administrator afterwards appointed 3. Commence and maintain suit for the estate 4. Sell ONLY: i. Perishable property, and Other property ordered sold by the court 5. Pay debts ONLY as may be ordered by the court. Section 3. When powers of special administrator ‘cease; Transfer of effects; Pending suits WHEN DOES THE POWER OF A SPECIAL ADMINISTRATOR, CEASE: the questions causing the delay are resolved and re granted to regular executor or administrator. for the executor or administrator whose i challenged by appeal to be appointed also : peso Sunsorprcegsch oppo : RULESL Before and executor or administrator enters pofithe execution of his trust “AMOUNT: To be fred by the court CONDITIONS OF THE BOND TO BE GIVEN BEFORE {ISSUANCE OF LETTERS: 1, Make and return 2 complete inventory of the property of the estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months; 2. Administer the property of the estate according to ‘the Rules (if administrator) or according to the will (iF executor}; and pay and discharge all debts, legacies, ‘and charges on the same, or such dividend thereon as shall be decreed by the court; 3. Render an account within 1 year and at any other time required by the court; AND 4. Pesform all orders of the court. ~ Advisers: Atty. Guevara Aity. Arroyo Alty. Salvador Aly. Vinkian Judge Bonifacio; Heads: Carissa Faylona, Marka Kristina Santos; Understudy: Roxanne Tadique, Alexis Cimagala; Vlunters: Grace Escosi, Ina Bianka Siva, Nash Marchornsalic, K Suarer sat© Aslong as the probate court retains jurisdiction of the estate, the tond contemplates a continuing lability. (Luzon Surety vs. Quebrol, 127 SCRA 295 (1984) Section 2. Bond of executor where directed in will. When further bond required If the testator in his will directs that the executor serve without bond, or with only his individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts ofthe testator. But the court may require of the executor a further bond Jn case a change in his circumstances, or for other sufficient cause, with the conditions narned in the last receding section. ‘against the administrator but he may be allowed to intervene if he asks for leave to do so in due time. (Phil Trust Co. vs. Luzon Surety Co) RULE 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Section 1. Administration revoked ff will discovered; Proceedings thereupon WHEN LETTERS REVOKED AND POWERS CEASE: When the decedent’s will is allowed and proved by the court after the issuance of letters of administration . TD es eT ag ~Adhisers: Aly. Guevarra Aly. Arroyo Atty. Salvador At. Vinluan judge Bonifacio: Heads: Gavia DUTY OF ADMINISTRATOR UPON REVOCATION OF THE LETTERS: 1. Surrender the letters to the court, and 2. Render his account within such time 2s the court may direct. EFFECTS OF THE REVOCATION OF LETTERS OF ADMINISTRATION: 1. Allpowers of administration shall cease. 2. Exercise of the duties of administrator upon revocation ofthe letters. 3. Proceedings for the issuance of letters testamentary (or of administration under the will shall be had. Section 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removat $5. Arcnty or eapabiiy to decharge the st + Tempura bene the at ons no sy dit RAL BAA oe @ ofin nivuanoe Ste coe es soli, 190 SCRA 112 (1990)) gence and act in entire goods faith in the performance of that trust. Section 3. Acts before revocation, resignation, or removal to be valid Lawful acts of an administrator or executor before the revocation, resignation or removal are valid unless proven, otherwise, Section 4. Powers of new executor or administrator 1. Collect and sete the estate not administered 2. Prosecute or defend actions commenced by or ‘against the former executor or administrator 3. Have execution on judgments recovered in the name of former executor or administrator ‘Authority to sell previously given to the former executor or ‘administrator may be renewed without notice or hearing, Eee ‘Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escasia, Ina Blanka Siva, Nash Marohomsalic,K Suarez — 102RULE 83, INVENTORY AND APPRAISAL; PROVISION FOR ‘SUPPORT OF FAMILY Section 1. inventory and appraisal to be retumed within three months Inventory and appraisal must be made within 3 months From the grant of letters. + Approval of an inventory is not a conclusive determination of what assets constituted the decedent's estate and of the valuation thereof. Such ‘determination is only provisional and a prima facie finding ofthe issue of ownership. (Garcia vs. Martin) + The--momh pred not mandy. The tran ‘an inventory was fled after the 31 ‘would ft deprive the probate court, conto approvelit: However, an administrdfor’s unexplained del ting he etary mayb 3 oud for Ns remove: Scblal,Sbb 04 SERA 385 (1973) eT aT ee ee Wesritig™ appare! of survivi sone ‘and grinon RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS: 1, Have access to partnership books and property; 2. Gxamine and make invoices of partnership property; 3. Maintain in tenantable repair the houses and other structures and fences belonging to the estate and deliver the same to the heirs and devisees when directed to do so by the court; 4. Make improvements on the properties under ‘administration with the necessary court approval EXCEPT for necessary repairs; AND 5. Right to the possession and management of the real and personal estate so long as itis necessary: Forthe payment of debt and "Stall. For payment expenses of administration, Se «ee ‘administrator {Court having jurisdiction ofthe estate may.~-+ hited Order fh such surviving partner or partners to: 2. Manage bed and being; AND Ts, uae ome permite urea cf theres 3. Provisions and articles which wil ily bee it _gP xb the books, papers, and property consumed in the subsistence of théideceased’s ‘ay aso punish any partner fing to do so for farniy. “Recess contengt Section 3. Allowance to widow and family ‘ALLOWANCE Refers to the monetary advances which are subject of collation and are likewise deductible from their share in the estate of the decedent. WHO ARE ENTITLED TO ALLOWANCE DURING PROCEEDINGS? 1. Legitimate surviving spouse 2. Children of the decedent (need not be minors) NOTE: Grandchildren are excluded from receiving the same benefit. Section 2. Executor or administrator to keep ‘buildings in repair Section 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed —Aalisers: ity. Guevara Atty. Airoy Ay. Sehador Atty, Vina judge Bonlaco; Heads: Gavia Faylona; Maria Wisina Santos Understudy: Roxanne Tadique, Ales Cimagala; Volunteers: Grace Escosia, Ina Bianka Siva, Nash Marohomsalc, K Suarez — 143a REMEDIAL LAW REVIEWER RULE 85, ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS, ACCOUNTABILTIES OF AN EXECUTOR OR ADMINISTRATOR: 1. Accountable for the whole estate of the deceased which has come into his possession 2. Not profit by the increase or lose by the decrease in value, without his fauit, of any partof the estate ‘Account for the excess when he sells any part of the estate for more than its appraisemment, he i not liable for the loss f the sale has been justy made 4. if he settles any claim against the estate for less than ‘ts nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement, 5. Rotor aroma for debts dete dere" remain uncollected without his fault 6. Accountfr.the income from the really used by him 7. Accountable for waste ate Section 1. Executor or administrator ith ol estate and income accountableforthe whole estate ofthe deceased. 1. rovamuncenee Pen: never came this possession. EXCEPTION TO EXCEPTION: When the 10 the trust or his own faut or for lack the executor or administrator failed to estate which came to his knowledge. Section 2. Not to profit by increase or lose by decrease in value Section 3. When not accountable for debts due estate Section 4, Accountable for income from realty used by him Section 5. Accountable if he neglects or delays to ‘aise or pay money WHEN ACCOUNTABLE: 1, fam executor or administrator |. Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or fi, Neglects to pay over the money he has in his hand, and es a) OPERATIONS 2010 so 2 AR employed or 2. Value ofthe estate is lessened, oF 3. Unnecessary cost or interest accrues, or 4. Persons interested suffer loss Section 6. When allowed money poid as costs Section 7. What expenses and fees allowed ‘executor or administrator [EXPENSES OF ADMINISTRATION Refers to those necessary for the management of the Property, for protecting it against destruction or Aeterioration, and possibly for the production of fruits [NOT PROPER EXPENSES OF ADMINISTRATION WHICH ARE [NOT CHARGEABLE TO ESTATE: 1. Services rendered by administrator which are not beneficial to the estate in favor of an heir 2 prem emiums for her/his bond 29 apes fore of prop of thet ing | sed and ecupied by him 4. Eapenset for keeping ordinary records.and receipts involved it.his administration © Age ‘Losses incurred in conduct of business with use of funds oF te estate ‘COMPENSATION IF THERE 1S NO PROVISION in THE WILL: 4 doy for the time actualy andsnecessaciy =e Bn a ae Des OO sit we ee = i. Settlement has required a high degree of ‘capacity of the executor or administrator. OPTIONS OF ATTORNEY TO COLLECT ATTORNEY'S FEES FROM ESTATE: 1. Sue administrator/executor in the latter's personal ‘apacty {who may then include any fees so paid in his, account}; OR 2. File a petition in the testate/intestate proceedings asking the court, after notice to all interested persons: LToallow his elaim and fi. To direct the executor/administrator to pay it as ‘an expense of administration. GENERAL RULE: The attomey cannot hold the estate direct lable for his fees. The liabilty for the payment rests on the executor or administrator, —Aalvisers: Atty. GuevarraAity. ArOyO Att. SivadorAlty Vnkan Judge Bonifaco: Heads: Garssa Faylona, Marla Kista Understudy: Rexanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, ina Blanka Siva, Nash Marohomesalic, K Suarez — 14aEXCEPTION: If the fees paid are beneficial to the estate and reasonable, he is entitled to the reimbursement from the estate. (Tioco vs. Imperial) Section 8 When executor or administrator to render account GENERAL RULE: Executor/administrator must render an ‘account within 1 year from the time of receiving the letters testamentary or letters of administration. EXCEPTION: An extension of time is allowed by the court for presenting claims against, or paying the debts of the estate, oF for disposing of the estate; and he shall render such further accounts as the court may require until the ‘estate is wholly settled. The fact that the final accounts had been aj not divest the court of jurisdiction to require WHEN EXAMINATION MAY BE: 1. Nocbjection is made tothe ‘and = Ec, © st ins 9 competent rook. Section 10. Account to be settled of ‘+ The fact that the final account had does not divest the court of jurisdiction to supplemental accounting. (Tumang vs, Laguio, 96 SCRA 124 (1980)) ‘Section 11, Surety on bond may be party to ‘accounting RULE 86 CLAIMS AGAINST ESTATE Section 1. Notice to creditors to be issued by court cam le refers to any debt or pecuniary demand against the decedent's estate. le) OPERATIONS 2010 WHEN TO ISSUE NOTICE Immediately after granting letters testamentary or of administration. (GENERAL RULE: Claims arising after his death cannot be presented in the form ofa claim. EXCEPTIONS: 1. Funeral expenses 2. Expenses forthe last sickness of the decedent [NOTICE FOR FILING OF CLAIMS: 1. Published once 2 week for 3 successive week in newspaper of general circulation; 2. Posted: iL In public places in PROVINCE of ast residence of decedent; tn 2. public places ir MUNICIPALITY of decedent’ last residence. _ STATUTE OF NON SOT pa Gey the ads for he ng ofthe dans {ZMeanst the estate. It supersedes the Statue of Limitations 0 Ee 5.7 ° , REMEDIAL LAW REVIEWER ‘embezzled, or fraudulently conveyed PURPOSE: To elicit information or to secure evidence from those persons suspected as having possessed or having knowledge of properties belonging to deceased, or of hhaving concealed, embezzled or conveyed away any properties ofthe deceased. GENERAL RULE: The probate court fas no authority to decide whether or not the properties belong to the estate or to the person being examined since probate courts are ‘courts of limited jurisdiction. EXCEPTIONS: 1. Provisional determination of ownership for inclusion inthe inventory; or 2. When the pitas are all heirs and they sae sires noche gute determination of which will not prejiice the rights ag paid in fu if fi of ,2%t.person. (Bernardo ws. CA, GR. No. 82483 (2990))- y é oo debs. Cour ist ORDER THE SALE OR MORTAGE of the properties of decedent, the proceeds of which will satisfy Te esate peso shal be aio anon le ed ae OPERATIONS 2010 law the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime; 4. The executor or administrator has shown NO DESIRE TO FILE action the action or failed to institute the same within a reasonable time; 5. LEAVE is granted by the court to the creditor to file the action; 6. BOND is filed by the creditor; ‘The action by the creditor is in the NAME of the ‘executor or administrator. [NOTE: The last three requisites are unnecessary where the Grantee isthe executor or administrator himself, in which ‘event the action should be ia the name ofall creditors. RULE 88 pp PAYMENT OF THE DEBTS OF THE ESTATE Writ of execution is mot the proper procedure to satisfy the debts and expenses. AIF ee GENERAL RULES A probate court cannot issue a writ of 27 execution. ohn of the executor or administrator of the estate for double! 715! icepTions: ‘the value of the property sold, oF bbe recovered for the benefit of the estate. c Section 9. Property fraudulently conveyed deceased may be recovered; When executor or ‘administrator must bring action This provision applies when there is @ deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administration. Section 10. When creditor may bring actions; Lien for costs REQUISITES BEFORE ACTION MAY BE FILED BY CREDITORS 1, There is a DEFICIENCY of assats in the hands of an executor or administrator for the payment of debts and expenses of administration; 2. The deceased in his Ifetime had made or attempted to make a FRAUDULENT CONVEYANCE of his, Property or had so conveyed such property that by fenated, to: 7 roe 1 To satisfy the contributive shares of devisees, legatces and bets in possession of dacedent’s assets; «Te enforce payment of the expenses of partition; 3. To satisfy the costs whom a person is ctted for ‘examination in probate proceedings. Section 2. Part of estate from which debt paid when Provision made by will Ifthe testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that willbe followed, But if its no sufficient, such part of the estate as is not disposed of by will if any, shall be appropriated for that purpose, Section 3. Personalty first chargeable for debts, then realty Advisers: ty. GuevarraAity Aroyo Atty. Salvador Ait. Vinhar Judge Bonifacio; Heads: Gavssa Faylona, Marla Understudy: Roxanne Tadique, Alexis Cimagala; Volunters: Grace Escosia, Ina Bianka Silva, Nash Marohornsali, k Suared 148ea REMEDIAL LAW REVIEWER. EN Te) 1. When the personal estate of the decedent is not sufficient for that purpose: 2. Where the sale of such personalty would be to the detriment ofthe participants of the estate. i ENE ‘ORDER OF PAYMENT OF DEBTS: 1. From portion of property designated in the will 2. From personal property nat disposed of by wil; 3. From real property not disposed of by wil. Section 4. Estate to be retained to meet contingent aims If the court is satisfied that contingent claim duly filed Is valid it may order the executor or administrator to retain in his hands sufficient estate to pay a portion equal to the dividend of the creditors. requistres: 1, Contingent claim s duly filed, A 2. Court satisfied that the cami wet 3. The lar has become absolute!” Section 5. How contingent. in two: years alowed and distributes Jater 6 f 1 such contingent cam beconies absélute aki! @ resented to the court orto the: of adeinistrator): 5 ‘within two years from the time limited foe other creditors: = to present their claims, it may be allowed bythe court. + tthe contingent claim matures after the exiratsrtapoee =the the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them. (loucian vs. (Querol,L-11307, October 5, 1918) + Ithas been ruled that the only instance wherein a creditor can file an action against a distributee of the debtor's assets is under $5, Rule 88 of the Rules of Court. The contingent claiens must first have been established and allowed in the probate court before the creditors can fie an action directly against the distributees. (De Bautista vs. De Guzman, 125 SCRA (682 (1983) Section 6. Court to fix contributive shares where devisees, legates, or heirs have been in possession . Dad OPERATIONS 2010 Pe, Section 7. Order of payment if estate is insolvent Sec. 7 in relation to Arts, 1059 and 2239 to 2251 of the Civil Code (Concurrence and Preference of Credits) must apa. Section 8. Dividends to be paid in proportion to dlaims Section 9. Estate of insoWent nonresident, how disposed of 4. Administrations taken inthe Philippines 2. Atthe time of fis deb, the person ‘= Aninhabitant of another country, and + Insolvent 3. His estat in the Philippines is disposed ofthat; ‘His creitor in and outside the Pitppines may receive an equal share f,_ I Popeton tothe especie res ‘Seétion 70. Whitn ond how claim proved outside the Philipices apoinst insolvent resident's estate paid 1. Claims proyen ouside the Philippines; 2. Executor had knowledge and opportunity to contest isallowance therein: 3. May be added tthe fist of cms in the Philippines "against the estate of an INSOLVENT RESIDENT; and 4. Estate dstbuted equally among those credits Prana OF RECPROCTY ‘The benefits of Section 9 and 10 cannot be extended to the creditors in another country if the property of such ed person there found is not equally apportioned to editors residing in the Philippines. ‘Section 11. Order for payment of debts Before the expiration of the time limited for the payment of the debts, the court shal: 4. Order the payment thereof, and 2. Distribution of the assets received by the executor or administrator for that purpose among the creditors © Asthe circumstances ofthe estate require, and '* In accordance with the provisions of tis rule. Section 12. Orders relating to payment of debts where appeal is taken tf an appeat has been taken from a decision of the court conceming a claim, the court may: 1. Suspend the order for the payment of the debts, oF 2. Order the distribution among the creditors. whose clalins are definitely allowed, ~Adkisers: Atty. Guevarra.Aty. Arroye Ay. Salvador Aty Vniuan judge Bonifacio; Heads: GarssaFaylona, Mi Fisting Santos; Understudy: Roxanne Tadique, Alexis Cimagata; Volintoers: Grace Escosa, Ina Blanka Siva, Nash Marchomsalic K Suave? = 149all k/ 3 Opeienoyen Sufficient assets must be left in the hands of the executor ‘or administrator to pay the claim disputed and appealed. When a disputed claim is finally settled, the court having jurisdiction of the estate shall order the same to be paid ‘out of the assets retained to the same extent and in the ‘same proportion withthe claims of other creditors. ‘Section 13. When subsequent distribution of assets ordered ‘coNDImons: 1L. Whole of the debts are not paid; 2. Whole assets are not distributed, or other assets afterwards come to the hands of the executor or administrator. rea nn na seman terms of order Section 25-Thue for poying co ome teaces a ‘xed, oF extended after notice, kth what Neednot enced yearn the tt stay : es But court i¥ extend onthe co < 1. Application of executor or ad 2. Hearing and notice; 3 re ctci ne trtee acl 4. Whole petiod allowed to the orginal execulb? of ‘administrator shall pt exceed 2 years. Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies though personality not exhausted 1. If personal estate is NOT SUFRGENT to pay debts, ‘expenses of administration and legacies; 2. sale of personal estate may injure the business or Interest of those interested inthe estate; 3. If testator has NOT made sufficient provision for payment of such debts, expenses and legacies; 4. fdeceased was in his lifetime under contract, binding {inlaw to deed real property to beneficiary (Sec. 8}; 5. the deceased during his Hfetime held real property In trust for another person (Sec. 9). ‘REQUISITES: 1. Application of executor or administrator; 2 Wetton orice to person eterstd and ~Seargsmencs £89, “the authority to sell, the sale itself and the order pproving i will be mull and void ab inti.” Clearly, an ‘of Rule 89 are mandatory, and _fallure to give notice to the heirs would invalidate the ‘authority gtanted by the intestate/ probate court to ‘mortgage of sell estate assets. (Pahamotang vs. PNB, (454 SCRA 6B, (2005) The reason behind this requirement is that the heirs ate the presumptive owner. Since they succeed to all | the rights and obligation of the deceased from the momen of the latter’s death, they are the person affected by the sale or morgage and fore cannot be deprived of the property, except Section 16. Successor of dead a in the manner provided by aw. (Manecang vs. Boun, Gdministrator may have time extended on notice within certain period Succesior of deceased executor or administrator may be given an extension not to exceed 6 months, RULE 89 SALES, MORTGAGES, ANG OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT Section 1. Order of sale of personalty ‘The court may order the whole or part of the PERSONAL estate to be sold if necessary: 1. To pay debts and expenses of administration; 2. Topay legacies; or 3. Tocover expenses forthe preservation of the estate. hubs Ay: Guevara ity. Arroyo Aiy. Savador Ay Vinloa fu ‘Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: 208 SCRA 179 (1992) ‘Section 3. Persons interested may prevent such sale, etc,, by giving bond ‘CONDITIONS OF BOND: 1. Give bond ina sum to be fixed by the court; 2 Conditioned to pay the debts, expenses of ‘administration, and legacies within such time as the court directs; 3. Such bond shall be for the security of the creditors, aS well as ofthe executor or administrator; and 4. May be prosecuted for the benefit of either. ‘+ Ifthe opposition to the sale is based on the fact that ‘oppositor claims title to the property to be sold, the ‘court will hold in abeyance the authority to sell such property until the issue of ownership has been settled in an ordinary action. (Pio Barreto Realty Dev. Inc. vs A GR Nos. 62431-33, August 31, 1984) jue Bonifaci; Heads: Carissa Faylona, Maria Kristina Santos; Grace Escosia, ina Blanka Siva, Nash Marohomsalic,K Suarez —ge REMEDIAL LAW REVIEWER ~ ATENEO“™ BAR Nal OPERATIONS 2010 Section 4. When court may authorize sale of estate as beneficial to interested person; Disposal of proceeds ‘The court may authorize the sale of whole or part of the estate if it appears beneficial to the heirs, devisees, legatees, and other interested persons. REQUIREMENTS: 1. Application ofthe executor or administrator, and 2. Waltten notice to the heirs, devisees and legatees ‘who are interested in the estate to be sold. 3. Not granted if inconsistent with the provisions of wil 4. Proceeds shall be assigned to the persons entitled to the estate inthe proper proportions. Section 5. When court may Section 8. When a court may authorize conveyance or realty which deceased contracted to convey; Notice; Effect of deed ‘Section 9. When court may authorize conveyance of lands which deceased held in trust RULE SO DISTRIBUTION AND PARTITION OF THE ESTATE QuIDATION ‘This means the determination of all assets of the estate ‘and payment of all debts and expenses. ‘Section 1. When order for distribution of residue authorize mode morgoge, or other coammbronve of estenss6 "BEE debts and legacies in other countries When it appears from records and’ proceedings of = brobatecour of another county thatthe exate deceased in Toei eouty i not ident to andexperses ae Application for authority to sell, mortgage, or Property ofthe estate may be denied by the court if: 11. The disposition isnot for any of the reasons specified by the rules; OR 2. Any person interested in the estate gives @ bond conditioned to pay the debts, expenses of administration and legacies. (Sec. 3, Rule 89) ‘+ In the case of sale of estate property on the ground that it is necessary to pay estate debts, the notice ‘need be only to those residing in the Philippines, unlike where the sale is authorized on the ground that itis beneficial to the heirs in which case notice should be given to the heirs whether residing in the Philippines or not. (Bonaga vs. Soler, 2 SCRA 755 (2961) . «, PAYMENTS of alldebts, ete. RULE: ORDER OF DISTRIBUTION shall be made AFTER PAYMENTS of all debts, funeral expenses, expenses ‘of administration, allowance of widow and inheritance tax for the payment of said obligation, the IUTION may be made even BEFORE ‘A separate action for the declaration of felts is not necessary. (WHEN is TITLE VESTED. From FINALITY of order of distribution. An order which determined the distributive shares of heirs 'Sappealable. If not appeated, it becomes final, ©The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and remaining estate delivered to the heirs entitled to receive the same. The firality of the approval of the project partition by itself does not ‘terminate the proceedings. (Gulls vs. Judge of CF, 43, ‘SCRA 121 (1972)) — Advisors ity. Guevarra Atty. Avoy,Alty. Salvador Ait Vinluan, Judge Boniiado; Heads: Clarissa Faylona, Marla Kitna Seaiow, Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia na Blanka Silva, Nash Marohomsalc, k Suarez asieLearn CONDITIONS PRECEDENT TO BE COMPLIED WITH FOR ‘THE ISSUANCE OF AN ORDER OF DISTRIBUTION. Showing that the executor, administrator or person Interested in the estate applied for such; and 2. The requirements as to notice and hearing upon such application have been fulfiled. PROHIBITION AGAINST INTERFERENCE BY OTHER COURTS In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal cour. REMEDY OF HEIR WHO HAS NOT RECEIVED His SHARE OF ‘THE ESTATE: f excluded from the proceedings: move for reopening of the proceedings before the order decaring the same closed has become final and executory (after 30 deys}; sesame 2. If not excluded, but only has not yet sectited his distributive share under the project6f partition: remedy i not to move for feopening (since proceedings are only deemed tlosed upon actual. ston), bao he aman fer eeatin wi ot sherman ped Sve + Before the lags share of « Sat al can Be determined, the net estate ofthe deceased must frst: be ascertained ter i iG Section 3. By whom expenses of 1. By the executor or administrator if he has effects in his hands and when equitable and not inconsistent with the testator's intention 2. By the parties in proportion to their respective shares or interest in the premises. paid NOTE: This is one of the instances where writ of execution ‘may be issued. ‘Section 4. Recording the order of partition of estate RULE 91 ESCHEATS ESCHEAT This is @ proceeding whereby the real and personal property of a deceased person in the Philippines, who dies without leaving any will or legal heirs, become the property ofthe State upon his death, . Section 1. When and by whom petition filed [REQUISITES FOR PETITION FOR ESCHEAT 1. Person died intestate or testate but only when will was not allowed to probate; 2. Person died leaving no heirs; AND 3. Person died leaving properties in the Philippines INSTANCES OF ESCHEATS: 1. When 2 person dies intestate leaving no heir but leaving property inthe Philippines (Sec. 1); 2 Reversion Proceedings — Sale in violation of the Constitutional provision; and 3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated), [BASIS OF THE STATE'S RIGHT TO RECEIVE PROPERTY IN ESCHEAT ‘of succession under the Civil Code, the STATE is the of the decedent. 4 Mio marmae ® = Sobator General or his representative in beta of the oe WnenE TO FE [RIC of last residence or of location of estate in the Philippines fa an-resident. an ORDER OF HEARING — hearing shall not be ‘more than 6 MONTHS AFTER ENTRY OF ORDER; 2. Direct the publication of 2 copy of the order ~ at least once a week for 6 CONSECUTIVE WEEKS. REQUISITES: 1. Publication ofthe order; 2. Person died intestate; 3. He is seized of real or personal property in the Philippines; 4. Heleftno hei or person entitled to such property: 5. There is no sufficient cause to the contrary. Section 3. Hearing and judgment DISPOSITION OF ESCHEATED PROPERTY: 1. Wreal property —to municipalities or cities located; 2. tf personal property — 4. To city or municipality where decedent last resided in Pi i. Mf decedent never resided in Phils, then to ‘municipality or city where located. —Aabisers: ty. Guevarre Atty. Arroyo Aly. Salvador Atty. iniuar judge Bonifacio; Heads: GerissaFaylona, Maria Kistina Santos; Understudy: Roxanne Tadique, Alexs Cimagala; Volunteers: Grace Escosa, ina Bianka Sia, Nash Marchomsalc,K Suarez — 182ene The court, atthe instance of an interested party, or on its ‘own motion, may order the establishment of 3 PERMANENT TRUST, so that only the income from the property shall be used. ‘The right to escheat may be waived. Section 4. When and by whom claim to estate filed WHO MAY FILE ‘Any devisee, legatee, heir, widow/er, or other person entitled to the estate WHEN TO FILE WITHIN 5 YEARS FROM DATE OF JUDGMENT, otherwise forever barred. Section 5. Other actions for escheot ‘Actions for reversion of property at Constitution or any statute. ‘These shall be govemed by Rule 91: However, the Affe rs be hte nthe vce where ‘whole orin part. ae € PERIOD: within 5 years trom be“Bate of (under Art. 1014 of the Civil Code, THE RECKONED FROM THE DATE THE PROPERTY" WAS DELIVERED TO THE STATE and further property had been sold, the mur ‘accountable only for such part of the have been lawully spent.) BY WHOM: Person with interest NOTES: Proceedings in escheat cannot be converted into settlement of estate. This Is not allowed for the two actions have different requirements in acquiring jurisdiction. In special proceedings, publication is once a week for 3 weeks while In escheat, once a week for 6 weeks. Escheat under the Unclaimed Balance Law must be filed in RTC of the place where the dormant deposits ae found. “Ee ‘S-YEAR PERIOD 15’ GUARDIANSHIP Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM. No. 03-02-05C) which took effect on May 1, 2003. While, guardianship of Incompetents who are not minor Is stl governed by the provisions of the Rules of Court on Guardianship (Rule 92 ‘to Rule 97) ‘GUARDIAN Its the power of protective authorty given by law and “Imposed on an individual who is free and in enjoyment of his rights over one whose weakness on account of his age ‘or other infirmity renders him unable to protect himself. GUARDIANSHIP It refers to a person in whom the law has entrusted the ‘custody and control of the person or estate or both of an a oF other person incapable of managing his cot MINDS oF GuaRDuis: oe oe, & Rezoning to scope: 1. GENERAL - over the person of the ward or over his “Property 2, LIMITED over the property only. B. ‘According to\Constitution: 1. LEGAL GUARDIAN — without judicial appointment, Pg cetrag! = men by tw at the ce oF te 2 Pare over the persons ofthe minor chen, |AD LITEM — appointed by courts of justice fr defend a minor, insane or person to be incompetent, in an action in court. 2 Genes GUARDIAN RULE 92 ‘VENUE Section 1. Where to institute proceedings INCOMPETENTS — RTC of his residence or where bis property is located in case of non-residents (Sec. 1} MINORS - Family Court of his residence or where his property is located in case of non-resident (Sec. 3, AM. No. 03-02.05-5c) “Residence” means “domicile” ~ Advisers: Atty. GuevarraAtiy. Arroyo Ally. Salvador Ay. Vtiuan Judge Bonifacio; Heads: GarssaFaylona, Maria Kristina Santon; Uncerstudy: Roxanne Tadique, Alexis Cimagala; Velunters: Grace Escosia Ina Bianka Siva, Nash Marohomsall,X Suaret — 153ATENEO L. Those suffering from penalty of chil interdiction; 2. Hospitalized lepers; 3. Prodigal; 4. Deaf and dumb who are unable to read and write; 5. Those of unsound mind though they have lucid intervals; 6. Persons not of unsound mind but by reason of age, disease, weak mind, and other similar causes cannot, without outside aid, take care of themselves oF ‘manage their property. Section 3. Transfer of Venue RULE 93, APPOINTMENT OF GUARDIANS Section 1. wre my retin oremepile Jurisdictional facts; | Jurisdictional facts, ‘Name, age and residence of | Incompetency rendering the prospective ward; ‘the appointment necessary ‘of convenient Ground rendering the | Names, ages, and appointment necessary or | residences of the relatives convenient; of the incompetent, and of the persons having him in thelr care; + CENTRAL BAR OPERATIONS 2010 Advisers: Atty. Guevarra Atty. Arrayo,Atty. Salvador Aty. Vinluan,udge Bonifacio; Heads: Garissa Faylona, Maria Kristina Santos; guardianship are prayed. (Section 2 of Rule 93) or tion rolng MINORS rogue to be VERIFIED "Reomparied by CERTIACATION AGAMST FORUM "SHOPPING while that involving INCOMPETENT must be © MERIFED only. However, no defect in the petition or verification shall render void the issuance of letters of #0 emdinstie. | Section . chart ost time for heoring: Notice es NOTICE is SERVED: All persons named in the petition residing in the province, and Minor himself if over 14 (NOTE: not “14 or over") Director of Hospital where insane is hospitalized There is NO requirement for PUBLICATION only NOTICE ‘except incase of non-resident minor or incompetent. However, service of NOTICE upon minor if above 14 years ‘of age or upon incompetent is mandatory and Jurisdictional ‘Section 4. Opposition to petition Grounps: 1. Majority of alleged minor; 2. Competency of alleged incompetent; 3. Unsultabilty of the persons for whom letters are prayed. Understudy: Roxanne Tadique, Alexis Cimagata; Volunteers: Grace Escosia, ina Bianka Siva, Nash Merohomsalic,K Suarez — ase=>, _ REMEDIAL LAW REVIEWER. Section 5. Hearing and order for letters to issue 1. Alleged incompetent must be present if able to attend; 2. Show that required notice has been given. Section 6. When and how guardian for nonresident ‘appointed; Notice ‘Any relative, friend or anyone interested in the estate of a person liable to be put under guardianship may fle 2 Petition for guardianship over the property of such person. Notice shall be given through publication or otherwise. ANCILLARY GUARDIANSHIP. ‘trefers to the guardianship in a state other than that in ‘which guardianship is originally granted, PROCEDURE OF GUARDIANSHIP: 1. Filing of petition; 2. Court shall set the case for heart; a aie noice tobe served to he prcons mental a ithe peti, ncn the ino, abe age of age; ees es £ Goats rece criens| GueT 5. Declaration of the propriety fe pon, 6. Issuers of guardianship. 92 Section 7. Parents as Guardians Guardianstip. Section 8. Service of Judgment CChilregistrar of the place where the minor or incompetent resides or where the property is situated shall be served with a copy of the judgment, RULE 94 BONDS OF GUARDIAN Section 1. Bond to be given before Issuance of letters; Amounts; Conditions Before an appointed guardian enters upon the execution of his trust, he shall give a BOND. CENTRAL BAR OPERATIONS 2010 ‘coNomions: 1. To make and return to the court, within three (3) ‘months, a true and complete INVENTORY of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the ‘possession or knowledge of any other person for him; 2. To faithfully EXECUTE 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 ofthe ward; 3. To renders true and just ACCOUNT of al the estote of the ward in his hands, and of all proceeds or interest derived therefrom, and ofthe management and disposition of the same, at the time designated by these rules and such other times as the court drects; and atthe expiration of his trust t settle his nts with the court and ever ard pay overall estate, effects, and moneys remaining in his -o¢ die from him on such settlement, tothe ‘person Lewy etided thereto, 2 To PERFORM all orders of the court by him to be Bond may be proceeded against in the same or separate Proceeding for the use and benefit of the ward, or of any ‘other person legally interested inthe estate, ‘© The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulllled. (Guerrero vs. Teron, 13 Phil. 212(1909)) + — Advisers: Atty. Guevarra,Atty. Arroyo, Atty. Salvador Atty. Viniuan Judge Borifadio; Heads: Garissa Faylona, Maria Kristina Santos Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, Ina Blanka Silva, Nash Marohomnsalic,K Suarez —RULE 95 ‘SELLING AND ENCUMBERING PROPERTY OF WARD ‘Section 1. Petition of guardian for leave to sell or ‘encumber estate ‘GROUNDS: 1. When income of estate is insufficient to maintain the ward and his family; or 2. When income of estate is insufficient to maintain and educate ward when a minor; or 3. When it appears that its for the benefit of the ward. REQUIREMENTS: 1. Petition must be verified; 2. Notice must be give to the next of kin; and should not be granted. se OPERATIONS 2010 ‘action to avoid or rescind the sale on the grounds specified by law should have been filed. (Margate vs. ‘Robocal, {-14302, April 30, 1963) '¢ Sale of the ward's realty by the guardian without authority from the court is VOID. Under the law, 2 parent acting merely as legat administrator of the property of his/her children, does NOT have the power to dispose, or alienate, the property of said ‘minor without judicial approve. (Lindain vs. CA, GR ‘No, 95305, August 20, 1992) Section 5. Court may order investment of proceeds ‘and direct management of estate RULE 96 ‘GUARDIANS 3 a ey eee i pate, (GENERAL POWERS AND DUTIES OF Section 2. Order to show couse NEXT OF KIN f Pe This pertains to those relatives whg are Neoshaie tn the estate of the ward under, the, eon, teste Succession including those who inp oF by Fight of representation. Len ot se avs Notice to next of kin and sere eB BE BL JURISDICTIONAL, ‘Section 3. Hearing on retum of order Section 4, Contents of order for sale of ‘encumbrance, and how long effective The Order of Sale must specify the grounds. DURATION OF THE ORDER FOR SALE AND ENCUMBRANCE OF PROPERTY: Within 1 year from the granting of the ‘order. It is presumed that if the property was not sold ‘within 2 year, the ward has sufficient income. The authority to sell or encumber shall not extend beyond ‘Lyearuniess renewed by the court. Appeal is the proper remedy against an order of the court authorizing the sale of the ward's property. (Lopez vs. Teodoro, 86 Phil. 499 (1950) ©The sale of the ward's estate cannot be attacked collaterally in the registration proceedings. A separate x2 Section 2 To tit qvardionship shall extend oe 4 Conflicts trearding the ownership or title to the ‘Property int the hands of the guardian in his capacity as such should be litigated in a separate proceeding, vythe court in guardianship proceeding being solely concerned with the ward's care and custody and proper adgpnistraton of his properties. (Vlora v5 © Administhator of Veteran Affairs, {-9620, June 28, 1957) . Guardian to pay debts of ward ORDER OF LABILITY OF WARD'S PROPERTY: 1. Personal estate and income of real estate; 2 Realestate ‘Section 3. Guardian to settle accounts, collect debts ‘and appear in actions for ward Section 4. Estate to be managed frugally and proceeds applied to maintenance of ward Section 5. Guardian may be authorized to join in Partition proceedings after hearing REQUISITES: Hearing: 2, Notice to relatives of the ward; and 3. Careful investigation as tothe necessity and propriety of the proposed action, ~Advisers: Atty. Guevarra Atty. Arroyo Atty, Salvador Atty. Vinluan jude Bonifacio; Heads: Carica Maria Kristina Santos; Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, Ia Blanka Silva, Nash Marchomsalic Suarez — 156Nee Section 6. Proceeding when persons suspected of embezzling or concealing property of ward The ward has come of age; or ‘+The court cannot actualy order the delivery of the : ward's property found to be embezzled, concealed oF ‘The wanda ded of conveyed except when the ttle of the ward to the i same is clear and indisputable. (Cu vs. Peco, 513%, ‘Death of guardian (See. 25, July 21, 1952) AM, No. 03-02-05-5C} Section 7. inventories and accounts of guardians, and appraisement of estate WHO MaY OPPOSE: 1. Guardien; 2 Relative ofthe ward; or oe el usd oo 3. Any other person, in the discretion of the court. settlement, expenses and compensation allowed Every guardian, other than the ward's parents, shall be ae a eee ore aoe towed the amount of his eaonat eel Asma compensation which shall not exceed 15% “ income ofthe estate, NDS FO REMOVAL OF A GUARDIAN: (GENERAL POWERS AND DUTIES OF GUARDIANS: Fi inaany oct ttn; 1 Mave the cre and custody ofthe person of SASS pr mismanagement ofthe property of te sod he management of he eae ony may be; (Sec. 1) eK 2. Pay the debts ofthe ware Sex. 28" 2 3. Sette accounts, collect debts ‘for ward: Sec. 3} 4 aa hee ewan py ‘proceeds to maintenance of the ward; (Sec. 4) 5. Render verified inventory within’. months after higt! | allure to fender an account or make a retum within 30 days after twas due. Sato ae ae "the glmedy ofa guardian from the order of removal appointment and annually fter port! | application of interested persons (Sec. Fizand Jan appeal. (Olarte vs. Enriquer, -16098, October 6. Render to court for its approval an 2H, 1960} property for 3 year from his appointment and every year thereafter. (Sec. 8) Section 3. Other termination of guardianship RULE 97 Section 4, Record to be kept by Justice of the Peace ‘TERMINATION OF GUARDIANSHIP oF Municipal tudge Section 5, Service of Judgment ‘Section 1. Petition that competency of ward be feet pe Preceeaanes omrmenoe! Chil Registrar of municipality or city where incompetent resides or where property or part thereof is stuated WHO May Fite: 1. Person who has been declared incompetent; 2. His guardian; 3. Relative; or 4 Friend, Petition shall be verified by oath and shall state that such person is then competent. — Advisers: Atty, Guevara Atty. AroyO,Atty. Salvador Ay. Vian Judge Bonifacio; Heads: GarissaFaylona, wat Kristina’ Understudy: Roxanne Tadique, Alexis Cimagala; Volunters: Grace Escosi, Ina Bianka Siva, Nash Marohomsali,K Suarez — 157REMEDIAL LAW REVIEWER ATENEO The father and the mother shall jointly exercise legal {guardianship over the person and property of theic minor without the necessity of a court appointment. In such ase, this Rule shall be suppletory to the provisions of the Family Code on Guardianship. (Sec. 1, AM 03-02-05-SC) A. Grounds for Petition (Sec. 4) 1. Continued absence, or incapacity or death of his parents; 2. Suspension, termination or deprivation of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental author 4. When the bestinterest ofthe minor so requites. 2 Phys mera and yen a OPERATIONS 2010 E. Bond of parents as guardian of property of minor (Sec. 16) Hf the market value of the property oF the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond: 1. Insuch amount as the court may determine; 2. Not less than 10% of the value of such property or income, WHERE TO FILE VERIFIED PETITION FOR APPROVAL OF ‘THE BOND: 1. Family Court of the place where the child resides or, 2. Family Court of the place where the property or any part thereof is situated (if the child resides in a foreign country) Jean, Te petition shall be docketed as a summary special geeding in wiich all incidents and issues regarding the of the obligations of a general guardian shall resolved. 'F, Removal of Resignation of Guardian (Sec. 24) 3 Finis me : 4. Relationship of tt with the ain; &F «5 28s 2" No mation for temoval or resignation sal be granted 5) Ralauiy to exe the ‘tia ote sharon tore poad ol gages eee 6. Uactoreonme of inert wit be acrrond 7. Abilityto manage the propery Of the minor. ‘less the euardian has submited the proper accounting of the proporty bf the ward and the court has approved yeg thesame. 6. Grounds Sor termination of Guardianship (ec. 24) Who may be appointed guard of the pert lof?! 111K. Becomes insane or otherwise incapable of discharging In deta of parents or 2 cout appointed posite as ‘court may appoint a guardian of a minor, observing 2s far 25 practicable, the following ORDER OF PREFERENCE: 11. the SURVIVING GRANDPARENT and tn case several grandparents survive, the court shall select any of ‘them taking into account all relevant considerations; 2. the OLDEST BROTHER OR SISTER of the minor over ‘twenty-one years of age, unless unfit or disqualified; 3. the ACTUAL CUSTODIAN of the minor over twenty: fone years of age, unless unfit or disqualified; and 4. any OTHER PERSON, who in the sound discretion of the court, would serve the best interests of the ‘minor. D. Case Study Report (See. 9) ‘The court shall order a social worker to conduct @ case study of the minor and all prospective guardians and submit report and recommendation to the court for its ‘guidance before the scheduled hearing. re 2. agfdiind to be unsuitable; Has wasted or mismanaged the property of the ward; 4. Has fated to render an account or make a return 30 days after it was due. ‘The court motu proprio or upon verified motion of ary person allowed to file 2 petition for guardianship may terminate the guardianship, ‘The guardian shall notty the court of such fact within 10 days ofits occurrence. H. Service of final and executor judgment or order (Sec. 26) 1. Local Cuil Registrar of the municipality or city where minor resides; and 2 Register of Deeds of province or city where his property or any part thereof is situated. — Advisers: Atty. Guevarra, Atty, Arroyo Atty Salvador ity Vniuan Judge Bonifacio; Heads: Garksa Faylona, Mara Kristina Santo; Understudy: Roxanne Tadique, Alexis Clmagata; Veunteers: Grace Escoca, na Blanka Silva, Nash Marchomsalle, K Suarez 18‘Accounts are not under oath and ‘except for intiat and final submission of ‘accounts, they shall be filed only at such times as may be required by the court. REMEDIAL LAW REVIEWER enue) es ee OPERATIONS 2010 | Court that juriedition ‘may be MIC oF RTC. ‘May sell, encumber or ‘mortgage Property if itis necessary for the purpose of paying debts, expenses of ‘administration or legacies, or for the preservation or property or # sale wil be beneficial to the heirs, legatees or devisees. ) Coure wach | ca [as jurisdiction 5 arc (incompetent) [or Famify Court (minor): benefit of ward upon order of the court. ‘Order of sale has no time fit Order of sales ‘aiid for only 1 year after ‘erent of the sane. ‘Appointed by the court to settle estate of decedent. ‘Appointed a5 guardian. tmustee Is necessary to camry into effect the provisions of a will, then in the RTC in which the will was allowed (assuming allowed in the Philippines}; Otherwise, then in the RTC of any province in which some property affected by the trust is stated [A TRUSTEE IS NECESSARY TO CARRY INTO EFFECT: 1. A.will where the testator omitted to appoint a trustee inthe Ptilippines (Testamentary Trust); and 2. Other written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust (Contractual Trust) Section 2. Appointment and powers of trustee under will, executor or former trustee need not administer trust No persons succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust. Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, ina Blanka Siva, Nash Marohomsalic, K Suarez —REMEDIAL LAW REVIEWER eens ‘Section 3. Appointment and powers of new trustee under written instrument Section 4. Proceedings where trustee appointed abrood When land in the Philippines is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the RTC where the fand is situated, ‘otherwise, the trust will be vacant and a new trustee will be appointed. When a trust Is created abroad for property in the Philippines, judicial approval is stil needed though trustor Isalive. Section 5. Trustee must file bond [Neglect of wustees to file a bond willbe interpre Court as resignation or decine to accept the HOWEVER, HE MAY BE EXEMPTED FRGM BOND WHEN REQUESTED BY: 1. Testator: 2 A penn ret itera the tn. 2 iS 3 tne ct ranch inal? Section 6. Conditions incladed ia pS ‘THE FOLLOWING CONDITIONS SHALL BE DEEMED PART OF THE BOND WHETHER WRITTEN THE Not: 4. That the trustee will make and return t3 such time as it may order, 3 true inventory ‘eal and personal estate belonging to him 25 trustee, Which at the time of the making of such inventory shall have come this possession or knowledge; 2. That he will manage and dispose of all such estate, and faithfully discharge his tust in elation thereto, according to law and the will ofthe testator or the provisions ofthe instrument or order under which he is appointed; 3. That he will render upon ath at least once a year until his trust is fulfiled, unless he is excused ‘therefrom in any year by the court, a true account of the property i his hands and ofthe management and disposition thereof, and will render such other accounts asthe court may order; 4. That at the expiration of his ust he wil settle his accounts in court and pay over and deliver all the estate remaining in his hands, or éue from him on such settlement, to the person oF persons entitled thereto rt, at 2 been Dad inter ctntry Adoption Act of 1995. Sec. 6a Rule 99 Te OPERATIONS 2010 Section 7. Appraisal; Compensation of trustee ‘Section 8. Removal or resignation of trustee REQUISITES: 11. Petition fled by partes beneficially interested; 2. Notice totrustee; and 3. Hearing ‘WHO MAY FILE THE PETITION: Parties beneficially interested. GROUNDS: 1. Removal appears essential in the interest of petitioners; 2 tncanity: 3. Incapabity of discharging trust: 4. Unsuitabilty. 9. Proceedings for sale or encumbrance of «Rees Sole and Encubrance of Trust Estate shall dele: ialrelegenea aaaeaialaaia ¥ ADOPTION ‘The provisions of the Rules of Court on Adoption have bby the Domestic Adoption Act of 1998 was bby Administrative Circular No. 03-04-04 7 of Rule 99 was amended by Administrative ‘No. @2-1-19-SC. Effective August 22, 2002, there ‘is anew Rule on Adoption. [NATURE AND CONCEPT OF ADOPTION, = Adoption is 2 juridical act, a proceeding IN REM, which creates between two persons a relationship similar to that which results from legitimate paternity and fllation Lazotin vs. Campos, 92 SCRA 250 (1979}) ‘+ Adoption is strictly personal between the adopter and the adopted. (Teodico vs. Del Val, -18753 (1956)) ‘+ The main purpose of adoption isthe promotion of the welfare of the child. Accordingly, faw shoud be construed liberally in a manner that will sustain the purpose. (Republic vs. Vergara, 270 SCRA 206 (1997) WHAT DOES THE COURT DETERMINE IN ADOPTION CASES: 1. Capacity of the adopters; 2. Whether the adoption would be for the best interest of the chile — Advisers tty. Guevarra Atty. Arroyo Ati. Salvador Aty Viniva,udge Bola, Heads: Garis Faylona, Maria Kristina Santos; Understudy: Roxanne Tadique, Alexis imagale; Volunteers: Grace Escosia, na Binks Siva, Nash Marohomsalc,K Suarez — 160Bo Under the jurdiction of | Under the jurediction of the the Family Court (where | Inter-Country Adoption adopter resides). Board (but a petition may REMEDIAL LAW REVIEWER y Via N E panlbecianala Proper in inter-country | WHO MAY ADOPT: (Sec. 4) 1. Any Flipino Citizen ~ OF legal age; hts; ato be fled withthe Fait Wf ood moral charac; 5 ¢ resides). which will ten it i {ene moral turpitude; Trial custody is in the | Trial custody is in the Philippines for 6 months | country of adopter and is (but court may reduce | mandatory before a decree Period or exempt parties | of adoption is issued from trial custody). (expenses are borne by the cating for children; and adopter). + chil. gut Legitimate or legitimate child of @ spouse or even @ person who is of legal age Petition must be published for 3 successive weeks in a } requirement. newspaper of general Circulation in the province for city where court is situated. ‘Application & through a Decree of adoption issued by Family Coure which hes jurisdiction over the case. Petition for adoption only. ig provided: th the Philippines; the application for adoption; hisfher country, and GRE féaughter. ncial accountabilities. “are required to be'annexed inthe petition. ‘sthe: 1. Biological parent of the adoptee; 2. Spouse ofthe adoptee's parents. consanguinity or affinity; Decree of adoption issued bya foreign court. of his/her Filipino spouse; Filipino spouse. Advisers: Atty. Guevarra,Atty. Arroyo Atty. Salvador Aty. Vinksan,kudge Bonifacio Clarissa Faylona, Maria In possession of full evil capacity and legal '. Has not been convicted of any crime involving ¥. Emotionally and psychologically capable of ‘vi. Im a position to support and care for his/her children in keeping, with the means of the far, vviL_Atleast 16 years older that the adoptee. 2. Any alien possessing the same qualifications above; ‘Raa, That his/her country has diplomatic relations fi, _That he/she has been living in the Philipines for ‘at feast 3 continuous years prior to the filing of Ti. Mainiains residence until the adoption decree Is ‘lv. Certified to have legal capacity to adopt; by Bas ¥, That his/her government allows the adoptee to i fisfher country as his/her adopted 3. The jfiardian with respect to the ward after the ‘of the guardianship and clearance of his ‘The requirement of 16 YEARS DIFFERENCE between the adopter and the adoptee is NOT applicable ifthe adopter ‘The requirement on residency and certification of alien's qualification to adopt may be WAIVED for the following: Petition with the Family | ‘through agency in foreign 1. Adopter 1s a former Filipino citizen who seeks to Court: ‘country and then submit to ‘adopt a relative within the ath chil degree of 2. One who seeks to adopt the legitimate son/daughter 3. One who is married to a Filipino citizen and seeks to ‘adopt jointiy with his/her spouse a relative within the 2° chil degree of consanguinity or affinity or the Santos, Understudy: Roxanne Tadique, Alexis Cimagata; Volunteers: Grace Escasi, ina Bianka Silva, Nash Marohomsalc,K Suarez — 161ATENEO Lt one spouse seeks to adopt the legitimate son or daughter of the other; or 2. Hone spouse seeks to adopt his/her own illegitimate son/daughter provided however that the other spouse has signified his/her consent thereto; or 3. Ifthe spouses are legally separated from each other. WHO MAY BE ADOPTED: (Sec. 5) 1L.__Any person below eighteen (18) years of age who has ‘been judicially declared available for adoption OR voluntarily committed to DSWD; 2 The legitimate child of one spouse by the other spouse; 3. An illegitimate child by a qualified adopter to raise the status of the former to that of legitimacy; 4. Aperson of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as chidance morn one 5. A child whose adoption has bed” previously rescinded; 6. A child whose bilogeal or adofnive parents have die 2 ee Oe 7 A child not otherwise disquaed by tog Hhesks™ — < rules. Bee eke “ACHLD LEGALLY AVAILABLE FOR aDOPTIoN Refers to a child who has been vol cotmmitted to: the DSWO or to a duly licensed and accredited, piecing or child caring agency, freed of the ij authority of his biological parents, : WAYS TO COMMIT A CHILD: % 1. Administrative/Voluntary — In this case, the parent, ‘or guardian of the child voluntarily committed him to the DSWO or any duly licensed child placement or Child caring agency. The child must be surrendered in writing. Such written instrument must be notarized ‘and signed in the presence of an authorized representative of the department after counseling has been made to encourage the parents to keep the child. (Sec. 5, AM. No. 02-1-19:5C) 2. Judicial/Involuntary ~ Procedure is AM. No. 02-1-19- Sc. + ed eT Dd OPERATIONS 2010 WHO MAY FILE: (Sec. 43) 1. The Sectetary of the DSWD; 2.. His authorized representative; 3. Any child placement or child caring agencies ‘VENUE: Family Court of the province or city in which the parent or guardian resides or where the child (s found (sec. 46) ‘WHO SHALL BE SUMMONED: (Sec. 4c) 1. Parent or guardian of the child; 2. Office ofthe public prosecutor. WHEN MAY SUMMONS NOT BE ISSUED: Sec. 4d) "imeff it appears from the petition that both parents of ‘the child are dead; or 2. That neither parent can be found in the province or ‘ety. where the court is located and the child has no (guordianfesiding therein. + Incase no summons i sued the court has the dty of sppointig 3 guardian ad item and sal proceed “with the hearing of the case with due notice to the provincial ty prosecutor. There nb answer here. Only heating reauire ‘TO COUNSEL (Sec. 4g) The Jn request ofthe child capable of forming his 739 oint a lawyer to represent him in the proceedings. sss rion ee of i 9 By Sl DUTY OF THE PUBLIC PROSECUTOR (Sec. 4h) ‘The provincial or city prosecutor shall appear for the State and ascertain if there has been due notice to all partes concerned and that there is justification for the declaration of dependency, abandonment or neglect. JUDGMENT (Sec. 4) Mf, after hearing, the court shall find the child to be ependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of the DSWO or any child placement or child caring agency. However, if the court finds, that the abandonment or neglect of the child may be remedied, the child may be allowed to stay in his home under the care and custody of his parent, subject tothe supervision ofthe DSWD. " ~kevisers: Atty. Guevara Aity. Arroye ty Sobodor Atty Viniian Judge Bonfdo; Head ‘Garissa Faytona, tr Understudy: Roxanne Tadique, Alexis Cimagats; Volunteers: Grace Escosia Ina Bionka Silva, Nash Marohomisake K Suarer = 162End of A.M. No, 02-1-19-5¢ VENUE: Family Court where the prospective adoptive parents reside. Sec. 6) ‘CONTENTS OF THE PETITION: (Sec. 7) 1. If the adopter is a Filipino citizen, the petition shall allege the following: i The juricdietional fa il. That the petitioner is of legal age, in possession of full cil capacity and legal rights; is of good ‘moral character; has not been convicted of any ‘rime involving moral turpitude; fs emotionally and psychologically capable of caring for children; is at least 16 years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the ‘adoptee's parent; and is in a position to s ‘and care for his children in ‘means of the family and has adoption services as required, 8552 2. tthe adopter isan aben, the fetion shat tis Beat tee following: f i The jurisdictional facts; | li. Sub-paragraph 1(b) above Ui, That his country has di the Republic ofthe Philipines: jv. That he has been certiied:by hid’diploniac'of consular offs or any appropriate governtiont ‘agency to have the legal adopt in his ‘country and his government alouabe adoptee to enter his country as his ado reside there permanently as an adopted child; and v. That he has been living in the Phifipines for at least 3 continuous years prior to the filing of the Petition and he maintains such residence until the adoption decree is entered. sment of certification of the aien’s qualification to adopt in his country and his residency may be waived if the alien: (1) Former Fiipino citizen who seeks to adopt a relative within the 4" degree of consanguinity or affinity; ot (2) Seeks to adopt the legitimate child of his Filipino spouse; or (3) Married to a Filipina citizen and seeks to adopt jointly with his spouse a relative within the 4" degree of consanguinity or affinity ofthe Filpine spouse. . oT eT ee aes 3. Ifthe 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. 4. ifthe adopter is married, the spouse shall be a co- petitioner for joint adoption except if: |. One spouse seeks to adopt the legitimate child of the other; or Ti. fone spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or i If the spouses are legally separated from each other. 5. tthe adoptee is 2 founding, the petition shall allege the entries which should appear in his birth Certificate, such as name of child, date of birth, place ‘of birth, Hf known; sex, name and citizenship of mother and father, and the date and place ofthe maroge. ee ee _ate the aus or eason forthe change of name. 4 _The first name, surname or names, age and residence Yof the adoptee as shown by his record of birth, baptismal ar foundling certificate and school records; 2p, That the adoptee is not disqualified by law to be first name, sumame or names by which the ‘adoptee & to be known and registered in the Chil Registry. Petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition ‘contains an application for a change of name, rectification of simulated birth, voluntary or involuntary commitment ‘of children, or declaration of child as abandoned, dependent or neglected. A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure, ANNEXES TO THE PETITION: (See. 11) 1. Birth, baptismal or founding. certificate, as the case ‘may be, and school records showing the name, age ‘and residence of the adoptee; Affidavit of consent of the following: |The adoptee, if ten (10) years of age or over; —Advisers: Atty. Guevara Aty ATOVO,AtYy. Salvador Atty, Vnluan Judge Borfeco; Heads: Carissa Faylona, Maria Reena Santos; Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosla, Ina Bianka Sia, Nash Marchomnsale, K Suarer 163al N ee kemren L — The biological parents of the child, if known, or the legal guardian, or the child-replacement agency, child-caring agency, or the proper government instrumentality which has legal custody ofthe child; i, The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; Wv. The illegitimate children of the adopter living with him who are ten (LOlyears of age oF over; and v.__ The spouse, if any, ofthe adopter or adoptes. Child study seport on the adoptee and his biological parents; 4. If 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 to his country and thet his government. allows the adoptee to enter his country as his own. a. Ghd nies exempted under Seton pear 5. Home study report on the adopters. Afthe adopter is an alien or residing abroad but qualified to adopt, the week for three successive weeks in 2 newspaper of general circulation in the province or city where the court is stated; Provided, that in case of application for change of name, the date set for hearing shall aot be within four (4) months after the last publication ofthe notice nor within thirty (30) days prior to_an election. The newspaper shall be selected by raffle under the supervision of the Execute judge. 5. A directive tO the socal worker of the court, the social service office ofthe local government unit oF any chilé-placing or child-caring agency, or the Department to prepare and subrit child and home study reports before the hearing if such reports thad rot been attached to the petiton due to unavailability at the time ofthe filing ofthe latter; and 6. A directive to the socal worker of the court to conduct counseling sesions with the biological on the matter of adoption of the adoptee and bgt her reportbeforethe date of hearing, home study report by the Ine Country Adoption ni GMD WOME STUDY REPORTS (Sc.13) Board; and 6. Decree’ of annulment, the adopter as wel 2s that ofthe biokbwical fe. of, *" the adoptee, if any. be Pr get tome | eo PROCEDURE: 4 oe eo se ‘A. ORDER OF HEARING (Sec 12) ‘Must be published at least once CONSECUTIVE WEEKS, 7 ‘At the discretion of the court, copies of the order hearing shall be furnished to the office of the SolGen. ‘through the provincial or ety prosecutor, the DSWD and the biological parents ofthe adoptee, IF KNOWN. Ifa change in the name of the adoptee is prayed for in the petition, notice to the Sol.Gen. shall be MANDATORY. ‘CONTENTS OF ORDER: 1. The registered name of the adoptee in the bicth certificate and the names by which the adoptee has been known which shall be stated in the caption; 2. The purpose of the petition: 3. The complete name which the adoptee will usein the petition is granted 4. The date and place of hearing which shall be set within sic (6) months from the date of issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a Advisers: Atty. Guevarra Atty. Arroyo Atty. Salvador Atty, Vinkwgn Judes & ot rly or leat seniStfa gi «Social worker Yeies with the Chil Regktiy the rel Adentity and the'name of adoptee and the fact that he is, legally available for adoption Soll water gy make recommerdtins othe court If insane ound ey the eon EXCEPTIONS: in case of APPLICATION FOR CHANGE OF [NAME which hearing must not be within 4 MONTHS after LAST PUBLICATION nor within 30 DAYS prior to election, ‘The petitioner and the adoptee must personally appear and the former must testify incourt. D, SUPERVISED TRIAL CUSTODY (STC) (sec:15) Before issuance of the decree of adoption, the court shall Live the adopter trial custody of the adoptee for @ period ‘of atleast six (6) months. REASON: so the parties will adjust psychologically and emotionally to each other and establish a bonding relationship, Faylona, Maia Kitna Santas; ‘Understudy: Roxanne Tadique, Alexis Cnagata; Vourteers: Grace Escnsia, ina Blanka Siva, Nash Marohomsalic, K Suarez —enue ‘The tral custody shall be monitored by the social worker Of the court, the Department, or the social service of the local government unit, or the chil-placement. or child. caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter. NOTE: Court _may reduce or exempt parties from Supervised Trial Custody. GENERAL RULE: Alien adopter must complete 6 MONTHS ste. EXCEPTIONS: Same as Exemptions from requirements of ‘residency and certification E, DECREE OF ADOFTON eon sues thie wit ake tect ote gle ing the overelanan In cae f change of nme, the dee shall sia {0 the Gl Regittr where the cour Siuated ‘An amended bith certificate shal be 6G. the origina: birth certificate shall be stamped “cancelled” and sallbe. sealed inthe Gd Regsry rer, FT NOTE: The new bith cartifcate to be issued to the i) Adoni salnat ea any oan ta agree EFFECTS OF ADOPTION: 1. Adopter will exercise parental authority; 2. All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter; 3. Adoptee shall be considered legitimate child of adopter forall intents and purposes; 4. Adopters shall have reciprocal rights of succession without distinction from legitimate fillation, All earings and records are confidential. (Sec. 18) te eee WHERE TO FILE PETITION: (See. 28) 1. A verified petition to adopt a Flipina child may be fled by a foreign national or Flipino citizen permanently residing abroad with the FAMILY COURT having jurisdiction over the place where the child ‘resides or may be found. 2. It may be filed directly with the INTER COUNTRY ADOPTION BOARD. ‘wito may ADOPT 1. Any alien or Filipino citizen permanently residing ‘abroad whois atleast twenty-seven (27}years of age; 2. Other requiements same as with RASS52 WHO MAY BE ADOPTED: (Sec. 29) (Only chic legally avaltable for domestic adoption may be eo ‘A child Ginger the inter-Country Adoption Act is defined as ‘any person below fifteen (35) years of age. “1. His age and the age of the child to be adopted, \yShowing that he is at least twenty-seven (27) years of “age and af least sixteen (16) years older than the child to be adopted at the time of application, unless 48 the petioner is the parent by nature of the child to bee ied or the spouse of such parent, in which -age difference does not apply; 2 tf fared the name of the spouse who must be ined as co-petitioner except when the adoptee is a legitimate child of his spouse; 3. That he has the capacity to act and assume all ights and responsibilities of parental authority under his rational laws, and has undergone the appropriate counseling from an accredited counselor in his country; 4, That he has not been convicted of a crime involving moral turpitude, ‘That he is eligible to adopt under his national law, That he can provide the proper care and support and instil the necessary moral values and example to all his children, including the child to be adopted, 7. That he agrees to uphold the basic rights of the child, 2 embodied under Philippine laws and the UN. Convention on the Rights of the Chil, and to abide by the rules and regulations issued to implement the Provisions of Republic Act No. 8043, 8. That he comes from a country with which the Philippines has diplomatic relations and whose ~Adhviaars Atty. Guevorra,Aity. Nroy0 Atty. Salvador Ay, Vniian hdge Bonifacio; Heads: Gasca Rayon, Maria Kitna Santos; Understudy: Roxanne Tadique, Alexis Cimagala;Volunters: Grace Escosia, ina Bianka Silva, Nash Marchomsalle,K Suarer — 165government maintains a simllary authorized and accredited agency and that adoption of a Filipino allowed under his nationa! laws; and ‘That he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic ‘Act. No. 8043 and in all other applicable Philippine laws. RC i z Birth certificate of petitioner; Marriage contract, if married, and, if applicable, the divorce decree, or Judgment dissolving the marriage; eh aL eT eeu GROUNDS: (Sec. 19) 1. Repeated physical and verbal maltreatment by the adopter despite having undergone counseling: 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. ‘Abandonment or failure to comply with parentat ‘obligations VENUE: FAMILY COURT of the city or province where the adoptee resides. (Sec. 20) 3. Sworn statement of consent of petitioners biological PERIOD WITHIN WHICH TO FILE VERIFED PETITION: (Sec. or adopted children above ten (10) years of age; 2) 4A. Physica, medical and psychological evaluation of the ‘Within 5 YEARS from reaching age of majority oF after petitioner certified by 2 duly licensed physician and recovery from incompetency. psychologist; ‘S. Income tax returns or any authentic document ‘Adverse party shall file his ANSWER within 15 days from showing the current financial capability feceiot of order of court requiring him to answer. (Sec. petitioner; $ * 6. Police clearance of petitioner is in sx (6) ‘months before the filing of the on EFFECTS OF JUDGMENT OF RESCISSION: 7. Character reference from the local church/minster, :% 1. Paretital authority of biological. parent or legal the petitioner's employer anda member of7thé!o% _eustedy of DSWD willbe restored; immediate community have, kei tie ‘Reciprocal rights of adoptee and adopter will be Petitioner for at lest five (5) yearse: 37° Fee x extinguished; 8. Full body postcard-size peturendtig ‘nd -3. _Vested rights acquired prior to judicial rescission shall his immediate family taken at dest ate sits respected; before the fing ofthe petition Successional rights shall revert to ts status prior to adoption, 2 of the date of judgment: of judicial [RESCISSION OF ADOPTION. rescission; & 1355 Adoptee shall use the name stated in his original birth Under the Domestic Adoption of 1998, ing certificate; INO LONGER RESCIND the adoption, he ca ‘adoptee in accordance with the provisions Code. RESCISSION relates only as to the date of judgment. Hence, vested rights prior to rescission should be registrar will reinstate his original bith or founding certificate, Unlike in revocation of guardianship, revocation of adoption i a separate proceeding from the adoption. respected, RULE 101 PROCEEDINGS FOR HOSPITALIZATION OF Who FILEs: (Sec. 19) aT aGoene INSANE PERSONS i. Over 18 years of age or tf minor with assistance of OSWD (GUARDIAN or COUNSEL, ifover 18 but incapacitated. ‘The new law withdrew the right of the adopter to rescind the adoption decree and gave the adopted chifd the sole right to sever the legal ties created by adoption. (Lohom vs. Sibulo, GR No, 143989 (2003) INSANITY It is @ condition of the mind which is so impaired in function or 30 deranged as to induce a deviation from ‘normal conduct on the person so afflicted. ‘Section 1. Venue; Petition for commitment VENUE: RTC of province where the person alleged to be insane in found. Advisers: ty. Guevara Atty. ArfoyO Ay. Salvador Ay. Vinluan Judge Bonifacio; Heads: Qarissa Faylone, Mari Kristina Santos Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosa, ina Blanka Silva, Nash Marohomsale,K Suarez — 16Ps ATENE Director of Health with assistance of city or provincial fiscal REQuisiTes: 1. Director of Health is of the opinion that the ‘commitment of the person alleged to be insane is for public welfare or for the welfare of said person; 2. Such person or the one having charge of his is ‘opposed to his being taken to a hospital or asylum. ‘CASES PETITION SHOULD BE FILED: mall cases where in the opinion of the secretary of health, such confinement is: 1. Forthe pubile welfare 2. For the welfare of a person who in the Secretary's Judgment is insane, and such person or the one having charge of him is opposed to his being taken to 2 hospital or other placed for the insane, Section 2. Order for hearing Section 3. Hearing and judgment BURDEN OF PROOF: On the plaintiff who alleged where itis set up as an alternative defense, ‘ests on the defendant Boe oe fon id 7 f EK gee Section 4. Dischorge of nsene | «i6®™* Seton 5 Asstanc of fl nthe proces ‘ordered the commitment, when he is the person is permanently or temporarily | released without danger. RULE 102 HABEAS ‘Special chil action under Rule 65. 2 OPERATIONS 2010 Saree | i ea ‘concemed with eros committed by cour: Direct attack. Failure of respondent to file comment will not be Punished by contempt and | fisdirect), will not even be declared is default. Court and prevailing party are named as respondents. (WRIT OF HABEAS CORPUS. It a writ directed to the person detaining another, ‘commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his ‘aption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf Section 1. To what habeas corpus extends ‘THE WRIT’ OF HABEAS CORPUS MAY BE OBTAINED IN ‘TWO INSTANCES: Cases of illegal confinement or detention by which a person is deprived of his liberty; and 2. Cases by which the rightful custody of the person is ‘withheld from the person enttied thereto. © Actual physical restraint is not required: any restraint careers which wil prejudice freedom of action Sint "cin vale, 415A 235, 188) aN wilien The Whit MAY BE AVAILED OF AS A CONSEQUENCE OF JUDICIAL PROCEEDING: qe There has been a deprivation of a constitutional right 6° resulting in'restraint of person; 2.” The court had no jurisdiction to impose the sentence; | _ An excessive penalty has been imposed, the sentence “ving void as to the excess; Where the law is amended, as when the penaty is Petifion for habeas corpus is LIKE A PROCEEDING IN because itis an inquisition by the government, at the suggestion and instance of an individual, most probably, but stil in the name and capacity of the sovereign. It is also instituted for the purpose of fixing the status of a person and that there can be no. judgment entered against anybody since there is ro real plaintiff and defendant (Alimpoos vs. CA, 106 ‘SCRA 159 (1982)) PURPOSE ‘+The essential object and purpose of the wit of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, ‘and to relieve a person therefrom is such restraint is ‘egal (Moncupa vs. Enril, supra) + Any further rights of the parties are left untouched by decision on the writ, whose principal purposed is to set the individual at iberty. (Mlavicenco vs. Lukban, 39 Phil. 778 2919)) "Advisers: ity. Guevarra Ay. Artoyo Aly. Salvador Ay, Vniuan,udge Bonitai| Carissa Faylona, Maria Kristina Santos; Understudy: Roxanne Tadique, AlerisCimagata; Volunteers: Grace Escosia, ina Bianka Siva, Nash Marehomsail K Suarer 167‘L._Invasion, when public safety requires; 2. Rebellion, when public safety requires. |N CASES OF ILLEGAL CONFINEMENT OR DETENTION GENERAL RULE: The release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. EXCEPTIONS: When there are restraints attached to his ‘release which precludes freedom of action, in which case the court can stil inquie into the nature of his involuntary restraint. (Villavicencio vs, Lukban, supra) CENTRAL BAR ee ee ‘Section 2. Who may grant the writ ‘The ATC, CA and SC have concurent jurisdiction to sue writs of habeas corpus. The MTC can issue the writ in case there fs no available RTC judge. Hierarchy of courts is not observed, Sandiganbayan may issue writs of habeas corpus only if it {s inaid of its appellate jurisdiction. ‘Enforceable throughout the | Enforceable only within Phitippines. their respective judicial JURISDICITON IN CASES OF HABEAS CORPUS WITH VOLUNTARY RESTRAINT sodmamans seem keri ag fae eee EXCEPTIONS: Wr wit eto enable the pare for person tehsil ors rt cong ne me aay at . ‘of minors, the ‘Gout and the Of 2 mcr ch athough she fe toy 3 tl EEE GPRS van ete ccs of sah pt Berson on her own i 29 PE, net tat Wan be eforceable wit the Piippnes Yeti ows ter of ra se fe person ented to custody. WHEN PETTTION FOR HABEAS CORPUS NOT PROPER: eth 1. Forassrtng or vindicating dena of right to 2 For correcting errors in appreci facts/appreciation of law. Habeas Corpus can never be a substitute for’ +The writs of habeas corpus and certiorari may be _ancilary to each other where necessary to give effect to the supervisory powers ofthe higher courts. A writ ‘of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of ‘certiorari reaches the record but nat the body. Hence, a writ of habeas corpus may be used with the ‘writ of certiorari for the purpose of review. However, hhabeas corpus does not lie where the petitioner has the remedy of appeal or certiorari 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 @ court having jurisdiction over the person and the subject matter. (Galvez vs. A, 237 SCRA 685 (2994) The person on bail is not entitled to habeas corpus because his detention is legal and technical qo r the return can be heard inthe FC/RTC (if there is “RO FC in the judicial region) and there is no need to fle a ‘epgfate petition for custody because the issue can be ‘ventilated in the petition for writ. {MERunoes pe THE ISSUANCE OF THE WRIT IN CASES (CUSTODY OVER THE PERSON OF A has the right to the custody over the 2. Rightful custody of the minor is being withheld from the petitioner by the respondent; 3. tis to the best interest of the minor concerned to be in the custody of the petitioner and not that of respondent. (Sombong vs. CA, January 31, 1996) Section 3. Requisites of application therefor VERIFIED PETITION MUST SET FORTH: 1. That the person in whose behalf the application is made is imprisoned or restrainad of his liberty; 2. The officer or name of the person by whom he is imprisoned or restraint 3. Place where he is imprisoned or restrained, if known; 4. Copy of the commitment or cause of the detention, if it can be procured without impairing the eficiency of the remedy (iF no legal authority for imprisonment, such fact shall appear) —Achisers: Atl. Guevara Aty. Arroyo Aty. Salvador Aty.Viniuan Judge Boifaci: Heads: GaviceaFaylona, Maria Kristina Understudy: Roxanne Tadique, Alexis Cimagela; Volunteers: Grace Escosa, na Bianka Sia, Nash Marohomsalic,K Suarez — 168REMEDIAL LAW REVIEWER ‘Section 4. When writ not allowed or discharge authorized 1. if the person is in custody of an officer under process issued by a court or by virtue of a judgment Or order of a court of record which has jurisdiction to issue the process, render the judgment or make the order 2. jurisdiction appears after the wrt is allowed; 3. tthe person is charged with or convicted of an offense in the Philippines. svc eroms at RAE ei tear ot peso He sence sr may tr ant ods ot east Wat stobeheurea note ene cone ror tie nt en eset Stet tate coma Webs Ok yy +1995). SO + Te wnt nt aa to compl Sane oe we so nase (2000) oi Section 5. When the writ must be: fated tuued Teagan | gos eet preuminarveranion | © gat ‘ Where a person detained under governmental authority ©!" Petition for the writ, the court may ise a citation’td thé! 1's government office having the person in fer /bis custody to 3.3 ‘show cause why the writ should not issue. PEREMPTORY WRIT ronan 1 sued when the cause of detention appears to patently Wlegal and the non-compliance therewith is punishable ‘© An appeal in Habeas Corpus proceedings should be perfected (Le. by filing Notice of Appeal) within 48 hours, compliance with which is mandatory and jurisdictional. In counting the 48 hours, the date on which the decision was promulgated is not counted, ‘and the period starts to run the following day. (clepante vs. Madoyag, 196 SCRA 399 (1991) CONFINEMENT OF ALIENS ‘+ 5.37 (a) of the Philippine Immigration Act of 1940, as amended, provides: “The following aliens shall be arrested upon the warrant of the Commissioner of {Immigration or of another officer designated by him for the purpose and deported upon the warrant of CENTRAL BAR yl TE N E O EU eg the Commissioner of Immigration after a ‘determination by the Board of Commissioners of the ‘existence of the ground for deportation as charged against the alien: x (7) Any alien who remains in ‘the Philippines ia. violation of any limitation or condition under which he was admitted as a non- Immigrant. (Tung Chin Hut vs. Rodriquez, Gi. No. 141767 (2001)) Section 6. To whom writ directed, and what to require IMPRISONMENT OR RESTRAINT BY OFFICER: 1. Directed to officer and 2 Command him to have the body of the person restrained of his liberty. IMPRISONMENT OR RESTRAINT BY NON-OFFICER: Directed to officer P™Command him to take and have the body of the Detson restrained of tis iberty and 3. Suminon the gerson by whom he i restrained then ‘and thereto appear before the court or judge. ‘Section 7. How prisoner designated and writ served ‘WOW SERVICE IS MADE: 1. By leaving the original of the writ with the person to whom itis dicted oF to any person having custody ifthe ‘fogner cannot’ be found oF has not the person in his ipeenang” "2. By preserving 2 copy on which to make return of 8 How writ executed and retumed CConvey the person so Imprisoned before the judge, Unless from sickness or infirmity such person cannot, without danger brought before the court. 2. Make the return of the writ together withthe day and the cause of caption or restraint. Section 9. Defect of form NNO WRIT CAN BE DISOBEYED FOR DEFECT IN FORM IF IT ‘SUFFICIENTLY STATES: 1. Person in whose custody or under whose restraint is held; and 2. Court or judge before whom he is tobe brought. — Advisers: Atty. Guevara, Aty. Arroyo Atty. Salvador Ay, Vinluan Judge Gonifeco; Heads: Garssa Faylona, Moria Kitna Understudy: Roxanne Tadique, Alexis Cimagals; Volunteers: Grace Escosa, Ina Bianka Silva, Nash Marohomsalle,K Suater 169REMEDIAL LAW REVIEWER EN epson PERIOD OF APPEAL nee Within 48 hours from notice of the judgment or inal order FA aro oie eee Eee appealed from (Section 39 BP 129). Form of appeal is PA ted tie sa ck NOTICE OF APPEAL. 2 eis the pay nis stay or pomer or under ‘estraint, the authority and the true and who ‘CAUSE thereof, st forth at large, with a copy of the Section 16. Penalty for refusing to issue weit, or for wit, order, execution or other process if any, upon disobeying the same which the party is he: | 3. Ifthe partyin is custody or power or Is restraint by Section 17. Person discharged not to be again him, and isnot produced, particularly the nature and imprisoned sravity ofthe SICKNESS or infirmity of such party by ‘reason of which he cannot, without danger, be We hold that such a reservation is repugnant to the brought before the courtor judge: government of laws and not of men principle. Under ths 4. I? he has had the partyin his custody or power, or Principe, the moment 2 person is acquitted on a criminal ‘under restraint, and has TRANSFERRED: such ‘charge e can no longer be detained oF rearrested for the custody or restraint to another, particularly to Same offense (Moncipa vs. Enril, supra) whom, at what time, for what ease , and by what authority such transferwasmade. git section 18. When prisoner may be removed from s Bayne ‘Section 11. Return to be signed and to. ‘one Gigody to onothe: 7 By legal process; Section 12. Hearing on return: Aejournments Prisoner & delivered to a inferior offcer to cary to Ef ah ow Gnd: By order of proper court or judge directing that he be ook If detention i eum, rian ein considered prima facie evidence of the aly of the restrain ad petitioner has burden of proof to shéw tha the restraint was illegal j |f the detention is by reason of PRIVATE AUTHORITY, the return is considered only a plea of the facts therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and justified Section 14. When person ‘awfully imprisoned recommitted, and when let to boil Habeas Corpus would not lie after the Warrant of Commitment was issued by the Court on the basis of the information filed against the accused. fllagan vs. Envile, 139 SCRA 349 (1985) ‘Section 15. When prisoner discharged if no oppeal Hf one is unlawfully imprisoned, court shall order his discharge but such discharge shall not be effective until a ‘copy of the order has been served on the officer or person, detaining the prisoner. If person detaining him does not ‘appeal, the prisoner shall be released. + ‘Advisers: Aity. Guevarra ity. Arroyo Ay. Salvador Ay. Vinluan Judge Bon emoved fom one place to another within the ‘Philippines for trial; In case of fire, epidemic, insurrection or other The writ itself plays the role of summons in ordinary ‘actions; court acquires jurisdiction over the person of the respondent BY MERE SERVICE OF WRIT, Heads: Garissa Faylons, Maria Kristina Santos; Understudy: Rexanne Tadique, Alexis Cimagata; Volunteers: Grace Escosia, Ina Bianka Siva, Nash Marohomsalc,K Suarez — 170a enn ae 5 CORPUS IN RELATION TO THE WHO MAY FILE PETMION (Sec. 2} ‘A verified petition forthe rightful custody of a minor may be filed by any person claiming such right. WHERE TO FILE PETTON (Sec. 3) Family courts in the province or city where the petitioner resides or where the minor may be found. ‘CONTENTS OF A VERIFIED PETITION (Sec. 4) 1. Personal circumstances of the petitioner and respondent; 2. Name, age and present whereabouts of the minor es ea) OPERATIONS 2010 6 Any other person or institution the court may deem suitable to provide proper care and guidance for the TEMPORARY VISITATION RIGHTS (Sec. 15) The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodian| parent or parents unless the court finds said parent or parents unfit or disqualified. HOLD DEPARTURE ORDER (Sec. 15) The minor child subject ofthe petition shall not be brought ‘out of the country without prior order fram the court wile the petition is pending. The Court, motu provio or upon application under oath, ‘may issue an ex parte hold departure order. ‘and his or her relationship to the APPEAL (Sec. 19) respondent; of appeal within 15 days from notice of denial of 3. Material operative facts constitutings@eprivation of ‘econsideration or new trial. eustody;, 4 Such other matters which are relevant tothe custody. of minor. Respondent must fle veried anu wits day itm fervce of summons and copy fp Pre-trial is mandatory. (Sec. 9} PROVISIONAL ORDER AWARDING CUSTODY (Sec. 13) AAs far a5 practicable, the following order of preference shall be observed in the award of custody: 1. Both parents jointy; 2 Either parent, taking into account all_relevant Considerations, especially the choice of the minor lover seven years of age and of sufficient discernment tunfess the parent chosen is unfit; 3. The grandparent or if there are several grandparents, {grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the _Brandparent chosen is unfit or disqualified; 4. The eldest brother or sister over twenty one (21) years of age unless he or she is unfit or disqualified; 5. The actual custodian of the minor over twenty one (21) years of age unless former is unfit or disqualified; or “the grthe a a Hein "—Aébisers: Atty. Guevarra Ait. Arroyo Atty Salvador Atty, Vian judge Bonifacio; Heads: Garssa Faviona, PETITION OF WRT OF HABEAS CORPUS (Sec. 20] ‘The petition shall be fled where the Family Court where ig etoner resides or where the minor may be found ‘The petition shall be enforceable within its judicial region 10 which the Family Court belongs. petition my however be filed with the regular court f of the presiding judge of the Family Court, that the regular court shall refer the Family Court as soon as its presiding judge ‘The petition may also be filed with the SC, CA or with any ‘of its members and, if so granted the writ may be made ‘returnable to a Family Court 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. RULE 103 CHANGE OF NAME Section 1. Venue RICof the province where the petitioner has been residing for 3 years prior to the fing ofthe petition Section 2. Contents of petition Santor; Understudy: Roxanne Tadique, Alexis Gmagala; Volunteers: Grace Escosia, Ina Bianka Silva, Nash Marohorsalc,XSuarer — amed aD ed 1. Petitioner is a bona fide resident of the province for at least 3 years prior to the date of the fling of the petition 2. Cause for which the change of name is sought 3. Name asked for (62) 4. Allnames and aliases of petitioner (Republic vs. asa) Petition shall be signed and verified by person desiring the hnamne change or some person in his behalf Requirements of verification are formal, NOT jurisdictional ‘requisite, and not a ground for dismissing petition. “Judicial (RTC) change of fest name or sickrame Z ‘+ The change of name is a mére resto ho: ee 22.SCRA 2801960) +A change of name may patemity and fitation. (Republic vs SCRA 442 (1985)) Section 3. Order for hearing NOTICE OF HEARING Notice of hearing published once 2 week for 3 consecutive weeks. DATE OF HEARING Cannot be held within 30 days before an election, o within 4 months after last publication, tast Amores publication Hearing | 50d er Hearing cannot be scheduled wit + ‘ME OF PETTION ‘Must include name, aliases, and name asked for. Example: “in Re: Petition for Change of Name of X, alias ¥, to Z. X, Petitioner. PUBLICATION Must reproduce title of the petition (see above), and ‘contain correct information as to: 1. Name or names of petitioner; 2. Cause for the change of name; 3. Name asked for. Fallure to comply with above requirements renders proceedings null and void Section 4. Hearing ‘OF CORPORATIONS Section 1. Wire, by whom ond on wet showing © application made thereupon for filing objections ‘Hearing, dissolution, and disposition of assets; Section 4. What shall constitute record NOTE: Repealed by Sections 118 and 119 of the Corporation Code RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN. Section 1 Venue Section 2. Contents of petition Section 3. Order for heoring Section 4. ppostion Advisers: Aty. Guevarra Ay. Arroyo, Aty. Salvador Atty. Vinluan judge Bonifacio; Heads: Kristina Santos; Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, ina Blanka Siva, Nash Marohomsali K Suarer mye) es ee Section 6. Service of judgment upon civil registrar RECOGNITION OF NATURAL CHILDREN (Art. 278, NCC) Only evidence accepted: 1. Record of birth 2. Witt 3. Statement before court of record 4. Any authentic writing NOTE: Matters of Filation of llegtimate Children and proof thereof are now governed by Aticles 172, 173 and 1175 ofthe Family Code. ‘Art, 172. The filition of legitimate children is established by any ofthe following: ‘Act. 176 is amended a¢ follows: ‘Article 176. Mlegitimate children sholl use the surname and shall be under the parental authority of their mother, and ‘hall be entitled to support in conformity with this Code. However, legitimate children may use the surname of their father if their fillation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action “The record of bth appearing inthe the regular courts to prove nonfiction dating his 2. An aren of leit sr public Se sotaee cero "document or a private Handwrtedinstrument Leer te ini signed by the parent concerned. # In the absence of the foregoing efidence, ¢ filation shall be proved by: wks, 1. The onen and continaous poised esi legitimate child; or 2p other means alowed by shes of four apd special ws. (265a, 2660, 267a) fut 178. he acento cin gta be the child during his or her Wifetime and shall be transmitted: to the heirs should the child die during mifiegty or in 2 state of insanity. tn these cases, the heirs shal Period of five years within which to institute the action. Art. 175. Illegitimate children may establish their llegitimate filation in the same way and on the same ‘evidence as legitimate children. ‘The action must be brought within the same period specified in Article 173, except when the action i based on the second paragraph of Article 172, in which case the ‘action may be brought during the ifetime of the alleged rent. (2893) ee before or "after the: Of RA. $255 which covers unregistered public or private, wherein the child is 25 such by the father: ‘Affidavit found at the back of the certificate of Live Birth (COLB); © A separate public document executed by the father, or * A private handwritten instrument made by the father expressly recognizing the child as his, The instrument must be in the handwriting of the father and signed by him. 2. The Aifidavit to Use the Sumame of the Father (AUSF is ‘sed where: © Recognition is made through a handwritten instrument, oF + When the birth has already been registered under the mother's surname with or without father’s recognition. 3. For private handwritten instruments, other documents are required to be submitted to support the claim ‘made (employment records, SSS/ GSS records, Insurance, etc.) 4. Consent of the child is necessary, ifthe chil is eighteen (18) years old or more at the time of the recognition, private Rass: Atty. Gucvara At. ActoyoAty,SlvedorAtiy.Viruan judge Bonita; icads: Classe Foylona; Maria iistiaa Santon ‘Understucy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, Ina Blanka Siva, Nash Marchomsali,K suarer cygee _ REMEDIAL LAW REVIEWER WHO MAY FILE: The father, mother, child, if of the legal age, or the guardian. WHERE TO FILE THE PUBLIC DOCUMENT OR THE AUSF: 1. Ifthe child was born in the Philippines and the public document or the AUSF was executed in the Philippines, the Local Chil Registry Office (LCRO} of the place where the child is born. 2 Where the public document or the AUSF was executed outside the Philippines (regardless where ‘the child was born), the public document or the AUSF shall be registered at the LCRO of Manila, WHEN TO FILE THE PUBLIC DOCUMENT OR AUSF: Within 20 days from the date of execution. husband and the wife or by an unmarried 's the dwelling house where they and their family ‘and the land on which itis situated. (223a) ‘Art. 153. The family home is deemed constituted on 2 house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any ofits beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sele or attachment except as hereinafter provided ‘and to the extent ofthe value allowed by law. INSTANCES WHEN FAMILY HOME NOT EXEMPT FROM EXECUTION, FORCED SALE OR ATTACHMENT 4. Nonpayment of taxes 2. Debts incurred prior to the constitution of the family home 3. Debts secured by mortgages on the premises before or after such constitution; and eT Eee {25 wil Art. 152. The family home, constituted'jeinty by the iy, ~ Advisers: Atty. Guevara Aity. Arroyo Atty. Salvador Ay. Viluan Judge Bonifado; Heads: GarissaFaylona, Maria iting Santon; 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have not rendered service or furnished material for the construction ofthe building. RULE 107 ABSENTEES Section 1. Appointment of representative ‘Section 2. Declaration of absence; who may petition PERSONS WHO MAY FILE A PETITION FOR APPOINTMENT (OF ADMINISTRATOR OR TRUSTEE: 1. The spouse present; 2. The heirs instituted in a will, who may present an ‘authentic copy of the same; 3. The relatives who would succeed by the hw of "hp, intestacy; and 4. "those who have over the property of the absentee some. right subordinated to the condition of his ‘REPHIESENTATIVE, OR FOR DECLARATION OF ABSENCE ‘AND APPOINTMENT OF TRUSTEE OR ADMINISTRATOR: “a sursdictional facts; 12. Names, ages, and residences of heirs instituted in the ‘of which must be presented) and of the heirs: 3 and residences of creditors and other persons ‘with adverse interests over the properties of the absentee; 4. Probable value, location and character of the property of the absentee. ‘Section 4. Time of hearing; notice and publication thereof 1. Upon filing of the petition, the court shall fix a date and place for the hearing where all concerned may _appear to contest the petition. 2 Ten (20) days before the day ofthe hearing, copies of the notice of the time and place fixed for the hearing shall be served upon the known helis, legates, devisees, creditors and other interested persons, 3. Such notice shall be published once a week for three (3) consecutive weeks 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. ‘Understudy: Roxanne Tadique, Alexis Cimagat; Volunteers: Grace Escosa, Ina Bianka Silva, Nash Marohomsalc,K Suarez — 1741 State in writing his grounds therefore; 2. Serve a copy thereof to petitioner and other Interested parties on or before the hearing. Section 6. Proof at hearing: order Section 7. Who may be appointed 1. Spouse present (preferred); 2. Any competent person. Section 8. Termination of administration GROUNDS FOR THE ADMINISTRATION 1. Absentee appears personally or through an agent; 2. Absentee’s death is proven and heirs appear; TERMINATION OF THE el ee OPERATIONS 2010 L 2 2. Deaths; 4. Legal separations; 5. Judgments of annulments or marriage; 6. Judgments declaring marriages void from the beginnings 7. Legitimations; & Adoptions; 9. Acknowledgments of natural chikiren; 10. Naturalization; 111. Elections oss or recovery of citizenship; 12. Cuilinterdiction; 13. Judicial determination of iiation; 14. Voluntary emancipation of a minor, 25. Change of name 3. Thi person appears showing that he sensed lover the property ofthe absentee. 3. Parties registrar; RULE 108 ‘CANCELLATION OR: t Boge ‘Section 1. Who may file petition |, @ 7° ‘Any person interested in any. sc Si concerning the cl satus of persons. RIC ofthe province where cra ibs ‘slocated i ‘REQUISITES OF ADVERSARIAL PROCEEDINGS: _- 2 ipasons tha hove or dim any interest which ‘woul effected thereby. 2 $ettion &. Notice and pubication ‘Order of hearing shall be published once a week for 3 ‘consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be Eons. option 1 Sahin 35 gays from notice of the petition or from date of : es 1L terer peter cetwier ns tian nets apa all partes interested are impleaded; 2. The order of hearing must be published once a week for three consecutive weeks 3. Notice thereof must be given to the Ovil Registrar and all parties affected thereby; 4. The Civil Registrar and any person having or claiming any interest under the entry whose cancelation oF ‘correction is sought may, within 15 days from notice ‘of the petition or from the last date of publication of such notice files his opposition thereto; 5. Full blown tal, Proceedings for the correction of entries should not be considered as establishing one's status in a ‘manner conclusively beyond dispute. The status corrected would not have a superior quality for evidentiary purposes. There Is no increase or diminution of substantative right. (Chiao Ben Lim vs, 2050, {-40252, December 29, 1985) Understudy: Roxanne Tadique, Alexis Cimagals Volitsers: Grace tscost, Ina Banka Siva, Nash Marchonsebc X Somes > Expediting proceedings ‘Section 7. Order Civil registrar shall be given a copy of the judgment and annotate the same on his record Petition to be fled in the RTC where the petitioner resides. ds: Carissa Faylona, Maria Kristina’ 175REMEDIAL LAW REVIEWER Aa serene Petition & filed by person desiring to change his Petition & filed by any erson Interested in ary ‘ACT, EVENT, ORDER OR local civil registry of the place where the interested party is presently residing or domiciled 3. ff petitioner resides or domiciled in foreign countries: ‘With nearest Phil Consulate Petition may be availed of only once. (GROUNDS FOR CHANGE OF FIRST NAME: 1. Fist name is ridiculous, tainted with dishonor or ‘extremely dificult to write or pronounce 2. New first name or nickname has teen habitually and Continuously used by the petitioner and he has been publicly known by that fst name or nickname in the ‘community 3. Change willavoid confusion First name or fast name {there must be valid around with respect to the FORM AND CONTENTS OF PETITION: 1. In the form of an affidavit, subscribed and swom to 2 before any authorized person PCT "Bese forth fact nocessary to establish merits reer ial | The'partculer erroneous entry which ae sought "to betorrected The chtnge sought tobe made “5. Supported by: YA cxried ue machine copy ofthe certfcate oof the page ofthe registry Book containing the entry or erties sought 10 be coreced Or Clerical / typographical errors. Change of frst name / nickname * agi ‘Afleast 2 public or private documents showing, ib correct entry or entries upon which the CLERICALORTYPOGRAPHICALERROR “i ‘correction or change shall be based! {t is a mistake committed in the performance Other relevant documents work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as DIFFERENCES BETWEEN RA 9048 AND RULE 168 ‘misspelled name or misspelled place of birth or the like, which is visible to the eyes, or obvious to the understanding and can be corrected or changed only by Summary | posweding ‘Petition s fled Penaity dause [No penalty dause Publication” “Tequirément: | Publication requirement: 3 once a Week” for 2 | consecutive weeks conseritive weeks Posting in conspicuous roference to other existing record or records. WHO MAY FILE PETITION: Any person having direct and personal interest in the ‘correction or change (WHERE TO FILE PETMON: 1. With the local civil registry office of the city or ‘municipality where the record being sought to be corrected or changed is kept. 2. If petitioner has already migrated to another place ia the country and it would not be practical for such Party to appear before the local civil registrar keeping ‘the documents to be corrected or changed: With the ‘No postingEN eter RULE 109 APPEALS IN SPECIAL PROCEEDINGS ‘Section 1. Orders or judgments from which appeals may be taken ‘An interested person may appeal in special proceedings from such order or judgment rendered which: 1. Allows or disllows will 2. Determines who are the lawful helts of a deceased person, or the distributive share of the estate to ‘which such person is entitled; 3. Allows or disaliows, in whole or in part, any claim _against the estate of a deceased person, or any claim presented on behalf of the estate offset to a claim against it; 4. Settles the account of a executor, administrator, trustee or guardian. WRIT OF AMPARO (Sec. 1) It isa remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public Ooffcial or employee, or of a private individual or entity The writ covers extralegal tilings and enforced disappearances or threats thereof. WHO MAY FILE THE PETITION (Sec. 2) The petition may be filed by the aggrieved party or by any qualified person or entity in the following EXCLUSIVE order: 7 ‘Any member of the immediate family, namely: the 5. Constitutes, in the proceedings to the children and parents of the agerieved party; settlement of the estate of a person, or the ay descendant of collateral relative of administration of 2 trustee oF guardian, final determination of a trustee of guardian, determination in the lower cogrt ofthe party appealing, EXCEPT that no, be allowed from. the snot sie wach administrator; and 6. ‘Ste tal eae or dened en ec, and affects the substantial rights 6€ the person £ i ese et AL appealing, UNLESS it be art denying 2 mation for a \new "trial or for reconsideration. ORDERS THAT ARE NOT APPEALABLE = 1. Order directing administrator to take recover amount due to the estate; 2. Order made in administration proceedings relating to Inclusion or exclusion of items of property in the Inventory of executor or administrator; 3. Order appointing special administrator; 4. Order granting or denying a motion for new tral or for reconsideration. Section 2. Advance distribution in special proceedings Vee eed So ctizen, organization, association or BUIG the agatieved party within the fourth civil degree of place where the threat, act or omission ‘9F any of its elements occurred, or 2 £0 Sop fudgethereot zanbayan or any justice of such court Appeals or ay justice of such court Court or any justice of such court "WHERE THE WRIT IS RETURNABLE 1. When issued by a Regional Trial Court or any judge ‘thereof, the writ shall be returnable before such court or judge. 2 When issued by the Sandiganbayan or the Court of ‘Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act ‘or omission was committed or any of its elements occurred. 3. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or ‘any justice thereof, or before the Sandiganbayan or ‘the Court of Appeals or any of ther justices, orto any Regional Trial Court ofthe place where the threat, act ‘or omission was committed or any of its elements occurred. ~ Advisers: Aly. Guevarra Ay. Arroyo Atty. Savador Ay, Vian Judge Bonifacio; Heads: rissa Maria Santos; Understudy: Roxanne Tadique, Alexis Cimagala; Volunteers: Grace Escosia, ta Bianka Sita, Nash Marohomsalc,K Suarez 7el aD a Ee WHAT SHOULD THE RESPONDENT DO AFTER THE WRIT IS NOTE: The writ shall be enforceable anywhere in the Phi (See. 3) SERVED? (Sec 9) ‘The respondent shall flea verified written return together HOW MUCH IS THE DOCKET OR FILING FEES FOR THE with supporting affidavits within seventy-two (72) hours PETITION (Sec. 4) after service ofthe writ. ‘There is NO docket and other lawful fees for the petition NOTE: The period for fing a return to a petition for Writ ‘of Amparo is NOT extendible. Ths sin contrast to the Rule REQUIRED CONTENTS OF THE PETITION (See. 5) for writ of Habeas Data where the court may extend the ‘The petition shall be signed and verified and shall alege the following: 1. The personal circumstances of the petitioner; 2 The mame and personal circumstances of the respondent, or, i the name is unknown or uncertain, {an assumed appellation of the respondent, 3. The right to if, liberty and security of the aggrieved party violated or threatened, and how such threat or violation is committed; eae eg as le ate ag rela eager ), together manner and conduct of the it with any report : 5. The actions and recouses take bythe petlose determine the fate or whereabouts of their party, beget X e 6. The relief prayed for the peti 2 _general prayer for other just (WHEN ts THE WRFT OF AMPARO SUED (See-6) te period for filing a return for justifiable reasons. 1 the respondent fails to file a return, then the court, justice or judge shall proceed to hear the petition ex parte. (ec. 12) ‘A respondent who refuses to file a return or who makes 3 false return may be punished for contempt and may be {imprisoned or imposed a fine. (Sec. 16) He eet Tha werd whch sal. among other things, contain the The twfildeferses to show that the respondent cid ‘ot volt or eaten with wostion the rit oie, Nery and security ofthe aezrteved party, though _povoctor onion, 2. "he steps or actions taken by the respondent 0 determine the fate or whereabouts of the aggrieved Patty and the person or persons responsible for the Upon the fling ofthe petition, the eburt, ste objid 8 7 threat gt or omissions shall immediately order the isuance ofthe weit én (1/35 Al eigvant information ia the possession of the face tought tose. Pertaining to the teat, act of omision ggainst the aggrieved party; and tn cose of urgent necessity, the justice oF the lksue the writ under his or her own hand, and may deputize any officer or person to serve it. ‘The writ shall also set the date and time for summary hearing of the petition which shall not be tater than seven (2) days from the date of ts issuance. PENALTIES FOR REFUSAL TO ISSUE OR SERVE THE WRIT (Sec. 7) AA lerk of court or a deputized person who refuses to issue the writ after its allowance, shall be punished for contempt without prejudice to other disciplinary actions. HOW THE WRIT OF AMPARO IS SERVED (Sec. 8) ‘The writ fs served thru personal service to the respondent. by @ judicial officer or by 2 deputized person who shall retain a copy on which to make a return of service. In case ‘the writ cannot be served personally on the respondent, ‘the rules on substituted service shall apply. ote Advisers: Atty. GueversAity. Arroyo Atty. Savador Atty. Visluan Judge Bonifacio; Heads: Grace Favors, 20 the respondent is a public official or employee, the return shail further state the actions that have been (oF wil stil be taken: i. to verify the identity of the aggrieved party; ‘to recover and preserve evidence related to the

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