BEDAN RED BOO Contempt against Quas/- Judicial Bodies : May contempt be committed against quasi-judicial bodies? ‘ANS: Yes, Rule 71 applies to conterapt committed against persons or entities exercising ‘quasi-judicial functions or in case there are rules for contempt adopted for such bodies of eniities pursuant tv law, the Rules shall apply suppletoriy. The RTC of the place Where the contempt was committed shall have jurisdicticn over such charges as may be filed therefor (RULES OF COURT, Rule 71, Sec. 12). These quasi-judicial bodies include the: 1, Securities and Exchange Commission ~ The chairman and commissioners of the SEC must exercise the power of contempt judiciously and sparingly with lulmost self-restraint (SEC v. Recto, G.R. No. 129521, September 7, 1999); and 2. National Labor Relations Commission ~ Article 225 (d) of the Labor Code provides for the rules on direct contempt. The Labor Code, however, requires the labor arbiter or the Commission to deal with indirect contempt in the manner prescribed under Rule 71 of the Rules of Court (Robosa v. NLRC, GR. No, 176085, February 8, 2072), Q: Where should contempt charges made before persons, entities, bodies, and agencies exercising quasi-judicial functions against the parties charged, be fled? (2013 Bar) ee ay ‘ANS: The RTC of the place where contempt has been comimitted shall have jurisdiction ‘over such charges as may be fied therefor (RULES OF COURT, Rules 71, Sec. 12). “Vi. SPECIAL PROCEEDINGS \ A SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS of Setil of a Q: What are the modes of settlement of estate of a deceased person? ANS: They are the following: Banana 1. Extrajudicial Settlement of Estate (RULES OF COURT, Rule 74, Soo. 1): ‘a. Extraudicial partion b. Self-adjudication: ‘Summary Settlement of Estate of Small Value (RULES OF COURT, Rule 74, Sec. 2): Judicial Settlement of Estate; Partition (RULES OF COURT, Rule 63): Probate of Will (RULES OF COURT, Rules 75-79); and Pattion for Letters of Administration in case of Intestacy (RULES OF COURT, Rule 79) Which Court has Jurisdiction Q: Which court has jurisdiction over the settlement of estate of a deceased person? ANS: it depends on the gross value of the estate. ‘1. In the settlement of estate, the MTC shall have jurisdiction when the gross value of the estate does not exceed PhP300,000 (outside Metro Manila), oF does not exceed PhP400,000 (in Metro Manila) 2. Ifthe gross value of the estate exceeds the above mentioned amounts the action falls within the jurisdiction of the RTC (B.P. 129, as amended by. RA. 7691) 563BEDAN REDBOOK Jen tle In what court may settlement of estate of a deceased person be filed? ANS: It depends: Ifthe decedent is an inhabitant of the Philippines (whether a citizen or alien) at the time of his death, the venue of the action shall be the court of the province or city where he resides atthe lime of his death; I the decedent is an inhabitant of a foreign country at the time of his death, the venue of the action shall be in the court of any province in which he had estate (RULES OF COURT, Rule 73, Sec. 4) Extent of Jurisdiction of Probate Court : State the nature of the jurisdiction of the trial court in settlement proceedings ANS: The trial court, siting as a probate cour, is primarily concerned with the: ‘Administration; Liquidation; and Distribution of the estate (Union Bank’ of the Philippines v Santibafez., G.R. No. 149926, Fobruary 23,2005). ‘The general rule is that the jurisdiction of the trial court either as'@ probate court or an. intestate court, relates only to matters having to do with the probate of the will and/or settlement of the estalé-of deceased persons, but does not extend to the determination ‘of questions of ownership that arise during the proceedings. The patent rationale for this tule is that such-couft merely exercises special and limited jursdicion (Aranas v. Mercado, G.R. No. 156407, January 12, 2014) : Are there instances when the probate court can, as an exception, determine questions of ownership? ‘ANS: The probate cour is authorized to determine the issue of ownership of properties for purposes of their inclusion or exclusion from the inventory to be submitted by the ‘administrator, but its determination shall only de provisional unless the interested parties are all heirs of the decedent.or the question is one of collation or advancement, or the Parties consent to the. assumption of jurisdiction by the probate court and the rights of third parties are not impaired (Id). All that the sald court: could do as regards said properties is to determine whether or not they. should be included in the inventory of properties to be administered by the administralor. If there is no dispute, there poses no problem, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action before a court exercising general jurisdiction for a final determination of the conficing claims of ttle (I.) Powers and Duties of Probate Court Q: State the powers and duties of a probate court ANS: The powers and duties of a probate court are the following (LAPIS-ISPADA) 1. To grant Leuiers of administration to the party best entitled thereto or to any Quaitied applicant (RULES OF COURT, Rule 79, Sec. 5), 2. To issue warrants and process necessary to compel the Attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law (RULES OF COURT, Rule 73, Sec 3) 3. To order the Probate of the will of the decedent (RULES OF COURT, Rule 76, Sec. 13); 4. To issue a warrant for the apprehension and Imprisonment of 2 person who oes not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, until he performs such order or judgment, or is released (RULES OF COURT, Rule 76, Sec. 13) 564BEDAN RED BOOK | f/f 5. To Supervise and conto all acts of administration; 6. Matters Incidental or coliateral to the settlement and distribution of the estate, such a8 the determination of the status of each heir and whether property included in the inventory isthe conjugal or exclusive property of the deceased spouse (Aranas v. Mercado, supra). 7. To approve the Sale of properties of a deceased person by his prospective heirs Before final adjucication; to determine who are the heirs of the decedent; the recognition of a natural child; the status of a woman claiming to be the legal wife of the decedent; the legality of disinhertance of an heir by the testator; and to pass upon the validity of a waiver of hereditary rights (Romero v.CA, G. R. No. 188921, April 18, 2012); 8, Tocorder the Payment of lawful debts (RULES OF COURT, Rule 68, Sec. 11); 9. To hear and Approve claims against the estate of the deceased (RULES OF COURT, Rule 86, Sec. 11) 10. To Direct the delivery of the estate to those enitled thereto (RULES OF COURT, Rule 90, Sec. 1); and x. 11. To Authorize the sale, mortgage or any encumbrance of real estate (RULES OF COURT, Rule 89, Sec. 2). > ‘Siena: *Estatel Exteajudiciol Settlement by Agreement between the Hels! When Allowed Q: How may the estate of a decedent ba settled if he leit n9\will and no debts? ANS: If the decedent left no will and no debts and the heirs are'all of age, or the minors ‘are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without Securing letters of administration: 1. Divide the estata among themselves as they See ft by, means of a public instrument fied in the office ofthe fegister of deeds; and , 2. Should they disagree, they may do so inienvordina (RULES OF COURT, Rule 74, Sea, 1). faction of partition Q: What are the requirements in order that the heirs may avail of extrajudicial settlement of estate? ace ANS: The requirements for extrajudicial setiement offéstates are the following Decedent died intestate; There are no oustanding debis at the time of the settlement; Heirs are all of age or minors are represented by judicial guardians or legal representatives; 4. The settlement is made in a public instrument or by means of affidavit in case ofa sole heir, duly filed with the Register of Deeds; 5. Publication of the extrajudicial settlement in a newspaper of general circulation in the province once a week for three consecutive weeks; and 6. Filing of a bond equivalent to value of personal property posted with Register of Deeds (DE LEON & WILWAYCO, Special Proceedings Essentials for Bench and Bar, (2018), pp. 30-31 [hereinafier DE LEON & WILWAYGO, Special Proceedings) Note: With respect to real estate, there shall be a lien on the rez! estate in favor of the Creditors, heirs, or other persons for two (2) years after the distribution. This lien shall continue notwithstanding any transfer of real estate (Id) Q: Upon publication, is the extrajudicial settlement binding upon all persons? ANS: No. The extrajudicial settlement shall not be binding upon any person who has not participated therein or had no notice thereof (RULES OF COURT, Rule 74, Sec.1). 565, e =< ei = = fa) w b> La 3Affidavit of Setf-Adjudication by Heir : What may a sole heir do if his predecessor-in-interest left no will? ANS: If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds (RULES OF COURT, Rule 74, See. 1). ‘Summary Settlement of Estates of Small Value: When Allowed @: When may an estate be summarily settled? ‘ANS: Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed Php10,000, the court may summarily settle the estate, provided the following requirements are met: 1.” The application must contain an allegation of the gross value of the estate Which does not exceed Php10,000; 2. Adate of hearing shall be set by the court not less than 1 month nor more than. 3:months from the date of last publication of the notice of such hearin 3. There shall be an order of hearing published once a week for 3 consecutive ‘weeks in a newspaper of, general circulation in the province; 4. Notice shall be served upon such interested persons as the court may direct; and 5. If personal property s to be distributed; a bond in an amount fixed by the court shall be/exeouted conditioned upon the payment of any just claims (RULES (OF COURT, Rule 74, Sec. 2) Q: What are the instances when an heir may be compelled to settle the decedent's estate in court? ANS: The following, gre the instances when an heir may be| compelled to settle the decedent estat cour: ‘An heir or other perso has been unduly deprived of his jawful participation in the estate; 2. Ifit Shall appear that there are debis ou:-tanding against the estate which have not been paid: or 3. Am heir of other person has béen unduly deprived of his lawful participation payable in money (RULES OF COURT, Rule 74, Sec.4). Q: What is the prescriptive period within which to question the settlement and distribution of the estate? ANS: The rules are as follows: 1. Ifitshall appear, at any time within 2 years after the settlement and distribution of an estate in accordance with either extrajudicial settlement by agreement between heirs or summary settlement of estate of small value, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the Courts in the manner hereinalter provided for the purpose of satisfying such lavtul participation (RULES OF COURT, Rule 74, Sec. 4); 2. Wit shall appear, within the same time of 2 years, that there are debis ‘outstanding against the estate which have not been paid, of that an heir or other person has been unduly deprived ot his lawful participation payable in ‘money, the court having jurisdiction of the estate may, by order for that Purpose, after hearing, setile the amount of such debis oF lawful participation and order how much and in what manner each distribute shall contribute in ‘ne payment thereof (RULES OF COURT, Rule 74, Sec. 4); and 3. fon the date of the expiration of the Same period of 2 years the person Buthorizes to fle a claim is a minor or mentally incapacitated, oris in prison or ‘ulside the Philippines, he may present his claim within 1 year after such abilly is removed (RULES OF COURT, Rule 74, Sec. 5). 566EDAN RED BOOK Q: To whom does the two-year prescriptive period apply? ANS: The two-year prescriptive period appl 4. to persons who have participated or taken part or had notice of the extrajudicial partition, and 2. when the provisions of Section 1 of Rule 74 have been strilly complied with, ie., that all the persons or heirs of the decedent have ‘aken part in the extrajudicial settlement or are represented by themselves or through guardians (Pedrosa v. CA, G. R. No. 118680, March 5, 2001) Remedios of Agerieved Parties after Extrajudicial Settlement of Estate Q: State the remedies of parties aggrieved by an extrajudicial settlement of estate after the lapse of the 2-year prescriptive period. ANS: The remedies are: +. An heir may fle an action for reconveyance within 10 years, which is based on an implied of constructive trust pursuant to Article 1456 of the Civil Code (Tevez v. CA, GR. No, 109963, Oclober 13, 1999); except when the property has passed to an innocent purchaser for value, in which case the aggrieved heirs may sue for damages against their co-heirs who have perpetrated the fraud (PEZA v. Femandez, G.R. No, 138971, June 6, 2001); 2. Hels excluded or who had no knowledge of the extrajudicial settlement may fle an annulment of the Deed of Extrajudicial Setlement of Estate, which is imorescrptible (Rello v. San Jose, G.R. No. 166393, June 18, 2009; Bautista v. Bautista, GAR. No. 160556, August 9, 2007; Ma¢ababbad, Jr. v- Masirag, GR, No, 161237, January 14, 2009); 3. Incase of pretertion of a compulsory heir in a pation with bad faith, he may ask for the rescission of such patttion (CIVIL CODE, Art. 1104); and 4. Petition for reliaf on grounds of fraud, accident, mistake, and excusable negligence (RULES OF COURT, Rule 28). Allowance or Disallowance of Wils Nature of Probate Proceedings tate the nature of probate proceedings. ANS: Probate proceedings are: 1. Inrem (Alaban v. CA, G.R. No. 156021, September 29, 2005); Mandatory (Id.; RULES OF COURT, Rule 75, Sec. 1): 3. Estoppel is inapplicable (Femandez v. Dimagiba, G.R. No. L-23638, October 2, 1967); and 4. impresctiptible (Guevara v. Guevara, GR No. L-5405, January 31, 1956; ALBANO, Remedial Law Reviewer, Volume 2, (2016), (hereinarter 2 ALBANO, Remedial Law supra at 18 citing Guevara v. Guevara, G.R. No. L-5405, (1956); Mirasol v. Magsusi, G.R. No. L-12166 (1959); RULES OF COURT, Rule 75, Sec. 1; CIVKi. CODE. Art. 838; Solivio v. CA (1999) Q: May the probate court pass upon the intrinsic validity of the will? ANS: The general rule is that the probate court's authority is limited only to the extrinsic validity of the wil, the due execution thereof, the testator’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally come only after the Court has deciared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Acain v. IAC, GR. No. 72706, October 27, 1987). 567BEDAN RED BOO ‘As an exception, it is well within the jurisdiction of the probate court to pass upon the rinsic validity ofthe will if probate proceedings might become an idle ceremony due to the nullity of the will (Morales v. Olondres, G.R. No, 198994, February 3, 2016). Who may Petition for Probate; Persons Entitled to Notice @: Who may file a petition for the allowance of a will? ANS: The following persons may file a petition for the allowance of a wil 4. The executor named in the will 2. The devisee or legatee named in the wil 3, Any other person interested in the estate: or 4, The testator himself during his lifetime (RULES OF COURT, Rule 76, Sec. 1). Q: Who are entitled to notice of the probate proceedings? ANS: The designated or known heirs, legatees and devisees, and the executor or co- executor shall be entitled to nctice of probate. If the notice is sent by mail, it must be ‘made 20 days before the hearing. IF thé ridce ts by personal service, it must be made 10 days before the hearing. Ifthe testator asks for the allowance of his own wil, notice shall be sent only to his compulsory heirs (RULES OF COURT, Rule 76, Sec. 4) Contents of Petition for: wi. : state the contents of petition forthe allowance ofa wil. ANS petition for the-allowance of a will must show, so far as known to the petitioner: vutiedetonal facts: The james, Ages, and restences ofthe ners, legatees and devisees; Probate vale and charactor of th property the eda The fame ol he person for whom leters are prayed: dna) | Ith thane been delivered tothe court the name ofthe person having custody oft RULES OF COURT, Rub 76Sec. 2). 1 2 3 4, 5. wired for: / Q: Where the will is uncontested, what is the required proof for the purpose of probate? ANS: The following rules shall be observed ifthe wil is uncdntested: 1. In case of a notarial will, the courtymay grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law. 2. In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicilly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to (RULES OF COURT, Rule 76, See.§) Q: Where the will is contested, what is the required proof for the purpose of probate? ANS: The folowing ules shal be observed i the wil contested In case of a notarial will, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death absence, or insarity of any of them must be satisfactorily shown to the cour. {Wall or some of such witnesses are presert in the Philippines but outside the Province where the will has been filed, their deposition must be taken. 568BEDAN RED BOOK If any of all of them testify against the due execution of the will, or do not remember having altested to it, or are otherwise of doubtful credibilty, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. 2. In case of a holographie will, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly dectare that the will and the signature are in the handwriting of the testator; in the absence of ‘any competent witnesses, and if the court deem it necessary, expert testimony ‘may be resorted to (RULES OF COURT, Rule 76, Sec.11). Q: What is the required proof where testator petitions for allowance of holo- graphic will? ANS: Where the testator himself petitions for the probate of his holographic will and no ‘contest is filed, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will s contested, the burden of disproving the genuineness land due execution thereof shall be on the contestant. The testator to rebut the evidence for the contestant (RULES OF COURT, Rule:76, Sec. 12). Grounds for the Disallowance of Will ~ 2 What are the grounds for disallowance of awl? ‘ANS: The wil shal be disallowed in ay ofthe following cases (ExITUS): 4. "ifnot Executed and attested as required bylaw 2! Ifthe testator was Insane, or otherwise mentall/incapable to make @ wi the time ofits execution: py ifit was executed unde; duress, ofthe infuencd of fear. of it itwas procured by Undue and Improper pressure and jnluence, on the part of the beneficiary, oF of some othor person for his benefit of IT the Signatur: ofthe testator was procured by fraud oF trick, and he did not intend thatthe insttument should be his wil a the time of fixing his signature thoreto (RULES OF COURT, Rule.76, See. 9). Reprobate . Requisites before a Will Proved Abroad would be allowed in the Philippines Q: May a will proved abroad be allowed in the Philippines? If YES, what are the matters that have to be proven? ANS: Yes. Where a will has been probated in a foreign country it may be reprobated in the Philippines, The following inatters have to be proven during the reprobate proceedings: (DD-APL) The Due execution of the will in accordance with foreign laws; “The testator has his Domicile in the foreign country and net in the Philippines; The will has been Admitted to probate in such country, “The fact thatthe foreign tribunal is a Probate court; and ‘The Laws of a foreign country on procedure and allowance of wills (Vda. de Perez v. Tolete, G.R. No. 76714, June 2, 1994). Effects of Probate : State the effects of the allowance of a will. ANS: Subject to the right of appeal, the allowance of the will shall be conclusive as to its ‘due execulion (RULES OF COURT, Rule 75, Sec. 1) I NRO AEDBEDAN RED BOOK 2018 What are the effects of reprobate of a will under Rule 77 if the ROC? rhe following are the effects of a reprobate of a wil: 1. The will shall be treated as if originally proved and allowed in Philippine courts (RULES OF COURT, Rule 77, Sec. 3); 2. Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines; and 3. After payment of just debts and expenses of administration, the residue, if any, of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or ‘country (RULES OF COURT, Rule 77, Sec. 4) Letters Testamentary and of Administration Q; What is meant hy letters testamentary? ‘ANS: Letters testamentary is the appointment issued by a probate court, after the will ‘has been proved and allowed, to the person named as executor therein to administer the estate of the deceased testator; provided he-is competent, accepts the trust, and ives a bond (RULES OF COURT, Rule\78,|Sec. 4). Q: What is the concept of jetters of administration? ANS: Letters of administration is the appointment issued by a,court to a competent person to administer the estate of a deceased who-died without a will provided such person accepts the trust and gives a bond (2 ALBANO, Remedial Lav, supra at 31). Whenand to Whom Letters of Administration Granted Q: When may Iétters of administration be granted? | ANS: Letters of administration may be granted when: (NIRBI) 1. No executy-"is named in the wil, or 2. The executor or executors: a. \Are Incompetent; oF EL. Refuse the trust; or ©. Fail to give Bondy or ™~ 3. The decedent died Intestate (RULES OF COURT, Rule 78, Sec. 6). Order of Preference Q: State the preference in the appointment of administrator of an estate. ANS: A letter of administration “shall-be.granted to ine following, in the order of preference: 1, Surviving Spouse or Next of Kin or Their Nominee ~ The surviving husband or wife, as the case may be, or the next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin request to have appointed, f competent and willing to serve; 2. Principal CreditorlS — If such surviving husband or wife, as the case may be. fr next of kin, or the person selected by them, be incompetent or unwiling, of if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted tc one or more of the Principal creditors, if compotent and wiling to serve; 3. Stranger ~ If there is no such creditor competent and wiling to serve, it may be granted to such other person as the court may select (RULES OF COURT, Rule 78, Sec. 6)BEDAN RED BOOK @: Is the order of preference in the appointment of administrator of an estate absolute? ‘ANS: No. A probate court cannot arbitrarily and without sufficient reason disregard the preferential rights of the surviving spouse to the administration of the estate of the deceased spouse. Bul, if the person enjoying such preferential rights is unsuitable, the ‘court may appoint another person. The determination of a person’s suitabilty for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error (Uy v. CA, G.R. No. 167979, March 15, 2006). Opposition to Issuance of Letters Te tary: Simul : Who may oppose the issuance of letters testamentary? ‘ANS: Any person interested in a will may stale in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sulfciency of such ‘grounds. A petition may, at the same time, be filed for letters of administration with the vill annexed (RULES OF COURT, Ruts 79, Sec. 2). Powers and Duties of Executors and Administrators: Restrictions on the Powers Q; State the powers and duties of executors and administrators ANS: They have the powers (ExAM-PIPE}: To Examine and make invoices of the property belonging to the partnership in cass of adeceased partner, 2. Tohave Access to, and examine and take copigs of books and papers relating to the parinership in case of a deceased partne! 3. To Maintain in tenantable repair, the houses and:othen structures and fences belonging to the estate, and deliver the same:in Sich repair to the heirs or dovisees wen directed to do so by the cour; 4. To Possess and manage the real 2s well as personal estate of the deceased so long as itis necessary for thé:payment of the debts and the expenses of administration; a 5. To make Improvements. on the properties “Under administration with the necessary court approval except for necessary repairs; 6. For the Payment of the debis: and 7. For the payment of Expenses of administration (RULES OF COURT, Rule 64) Q: What are the restrictions on the powers of an executor or administrator? ANS: They CANNOT: (ASLEEP-BC) ‘Acquire by purchase, even at public or judicial auction, elther in person or Mediation of another, the property under administration (CIVIL CODE, Art 1494) 2. Specutate with funds under administration. Borrow money 1e court (RULES OF COURT, Rule 85, Sec. 2) 3. Lease the property for more than a year (CIVIL CODE, Art. 1878) 4. Exercise the right of legal redemption over a portion of the property owned in Common sold by one of the other co-owners (Caro v. Court of Appeals, G.R. No. L-46001, March 25, 1982): 5. Enter into any transaction involving the estate without any prior approval of the court, when the estate of the deceased is already the subject of a testate or intestate proceeding (Estate of Olave v. Reyes, G.R. No. L-29407, July 29, 1983) ithout authority of svt = <4 = a = a my > 2 ir rsEDAN RED.BOOK 6. Profit by the increase or decrease in the value of the property under ‘administration (RULES OF COURT, Rule 85, Sec. 2); 7. Borrow money without authority of the court; and 8. Continue the business of the deceased unless authorized by the court (RULES OF COURT, Rule 84, Sec. 1), Appointment of a Special Administrator @: When may the probate court appoint a special administrator? ANS: A special administrator shall be appointed when: 4. There is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance of disallowance of a will (RULES OF COURT, Rule £0, Sec. 1): or 2. The executor or administrator is a claimant of the estate he represents, in which case the special administrator shall have the same power and be Subject fo the same labilty 25 the general administrator or executor (RULES (OF COURT, Rule 86, Se0:8).” Note: Unless emergency situations threatening the dissipation of the assets of an estate are present, 2 special administrator may not be, appointed without complying with the notice requirement under Rule 76,-Seclions 3/and.4 (De Guzman v. Angeles, G.R. No. 78590, June 20, 1988). Q What are the poweis and duties of a special administrator? ANS: A special administrator has the folowing powers and duties (PoP-CoPS) To lake: Possession. and. chargs of the goods, chattels, rights, credits, and estate ofthe deceased To Preserve such goss, chattels. rights, cretits, and estate of the deceased for the execotor or administrator afterwards appointed) | | To Commence and maintain suits as administrator; and, ‘To Pay ‘sich debts of the deceased only as ordered by thé court To Sell only such perishable and other property/as the/court orders sol (RULES OF COURT, Rule 20, See. 2) Grounds for Removal of Administrator Q: State the grounds for the removal-of.an executor or administrator. ANS: The following are the grounds for the removal of an.executor or administrator: ‘Neglect to render his"account (within 1 year and when required by the court); Neglect to settle the estate according to law, Neglect to perform an order or judgment of the court or a duty expressly pruvided by the rules; 4. Absconding; 5. Insanity; 6. Incapabilty to discharge the trust; or 7. Unstitailty to discharge the trust (RULES OF COURT, Rule 80, Sec. 2). Glaims Against the Estate Q: What are the claims that may be filed against the estate of the decedent? ANS: They ae: (FS) ‘All claims for Money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for Funeral expenses and expenses for the last sickness of the decedent; and 3. Jurigment for money against the decedent (RULES OF COURT, Rule 86, Soc. 5) 572 | |( = - BEDAN RED BOOK : Where should the claim be filed? ANS: All money claims against the decedent must be filed in the office of the clerk of the Settlement Court (RULES OF COURT, Rule 86, Sec. 1). In other words, B.P. 129 is not applicable, : Distinguish actions which do not survive death of decedent from claims which survive the death of decedent. ‘ANS: Claims which do not survive death of decedent refer to money claims contracted before the decedent's death and thus may be claimed against the estate. It has telerence to such debis or demands against the decedent as might have been enforced against him in his lifetime by personal actions for recovery of money; and upon which only a money judgement could have rendered (DE LEON & WILWAYCO, Special Proceedings, p. 128). On the other hand, actions which survive the death of decedent refer to actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lion thereon, and actions to recover damages for an injury to person cr property, real or personal, may be commenced by and against the executor or administrator (RULES OF COURT, Rule 87, Sec. 1). Ti in which Claim sholl be Filed: Exceptions Q: Within what period shall the claims against'the estate’of the decedent be filed? ANS: Claims must be fled within the time fied in the notice to the creditors. The period shall not be more than 12 months nor less than 6 months/after the date of the first publication (RULES OF COURT, Rule 86, Sec. 2). Q: State the effect if.a claimant does not file his claim against the estate of the decedent within thé period prescribed by law. ‘ANS: Failure lo do so shall bar the claim forever (RULES OF GOURT, Rule 85, Sec. 5) Is the rule absolute? ANS: No. The exceptions to the rule are: 1. At any timesbefore an order of distribution is entered, on application of a creditor who has failed to fle hig. claim, within the time previously limited, the Court may, for.cause shown and on suichteims as are equitable, allow such claims to be filed within a time not exceeding T'month from the order allowing belated claims (ROC, Rule 86, Sec. 2); and 2. Claims against the estate may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants (RULES OF COURT, Rule 86, Sec. 5) ‘Statute of Non-Claims Q: What is the statute of non-claims? ANS: The statute of non-claims is embociea in Section 5 of Rule 86 of the Rules of Court in fixing the period forthe fling of claims against the estate of the decedent. Its purpose is to settle the affairs of the estate with dispatch, so that residue may be delivered to the persons entiled therate without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations, have not yet prescribed (Sikat v. Vda de Villanueva, G.R. No. L-35925, November 10, 1932). @: Between the statute of non-claims and the statute of limitation, which will prevail? ‘ANS: Insofar as claims against the estate of deceased persons are concerned, the statute of non-ciaims supersedes the statute of limitations. Hence, if 2 debtor dies, his ‘creditors must present tneir claims, whether the same be due, not due or contingent, in 873the settlement proceeding of the estate of the deceased debtor within the time provided in the statute of non-claims, or the same shall be barred forever (ALBANO, Reviewer, ‘supra at 60 ating In Re: Estate of De Dios, G.R. No. L-7940, March 27, 1913) Claim of Executor or A Estate ‘Q: What shall the executor or administrator do if he has a claim against the estate of the decedent? ANS: If the executor or administrator has a claim against the estate which he represents, he shall give notice thereof to the court. The court shall appoint a special ‘administrator, who shall in the adjustment of such claim, have the same power and be Subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special Scirinisator necessary funds to defend such claim (RULES OF COURT, Rule 86, Soc. i) How toFilea Claim Q: How does a craditor flea claim against the ectate?, ‘ANS: A claim may be filed by delivering the same with the-necessary vouchers to the Clerk of court and by serving a copy thereof on the executor or administration (RULES. OF COURT, Rule 86, Sec. 9) Q: What are the contonts of the claim? ANS: The contents of claim must observe the following rules: 1. Ifthe claim be founded on a bond, bill, note, or any other instrument ‘a. |The original need not be flied, but a copy thereof with all indorsements, shall be attached to the claim and filed therewith, b.| On demand; however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, 2. If such bond, bil, note, or other instrument be lost or destroyed: a. The claimant must accompany his claim with affidavit or affidavits Containing a copy or particular description of the instrument; and b. Stating its loss or destruction. 3. When the blaim is due: a. _Itmust be supported by affidavit stating the amount justly due; b. That novpayments have been made thereon which are not credited: and c. thal there are no‘offsets to the sami, to the knowledge of the affiant. 4. Ifthe claim is not due, or is contingent, when filed, it must also be supported by affidavits stating the particulars thereof, 5. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant’ (RULES OF ‘COURT, Rule 86, Ses. 9). Actions that moy be brought against Executor ond Adininistrators Q: State the actions which may be brought against the executor or administrator. ANS: The following actions may be conimenced directly against the executor or the administrator 1, Recovery of real or personal property, or an interest therein, from the estate; 2. Enforcement of alien in the abovementioned; or 3. Recovery of damages from an injury to a person or property, real or personal (RULES OF COURT, Rule 87, Sec. 1). 574BEDAN RED BOOK @: What actions may not be brought against the executor or administrator? ‘ANS: No action upon a claim for the recovery of money or debt or interest thereon shall bbe commenced against the executor or administrator (RULES OF COURT, Rule 87, Sec. 1). Q: What actions may be brought by an executor or administrator? ANS: For the recovery or protection of the property rights of the deceased, an executor (or administrator may bring or defend, in the right of the deceased, actions for causes which survive (RULES OF COURT, Rule 87, Sec. 2). raudulently Conveyed by the Deceased : What are the requisites before a creditor may bring an action for the recovery of properties fraudulently disposed of by the decedent? ANS: They are the following: (DeCon-DeVoCo-LBE) 4. There is a Deficiency of assets inthe hands of an executor or administrator for the payment of debts and expenses of administration; 2. The deceased in his lifetime had. Conveyed real or personal property, or a tight or interest therein, or a debt or ered: 3, The conveyance vas done with intent to Defraud his creditors or to avoid ary right, debt, or duty: or had 60 conveyed Such propery, gh, interest, debt or credit = 4. By law the conveyance would be Void as against his¢recitors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime (RULES OF COURT, Rule 87, Sec. 9) ‘The executor or axiministrator hag not Commenced the detion; Leave of permission is granted by the Cour tote creditor file the action; The creditor has filed in @ court a Bond/ executed to thé executor or administrator in an amount approved by the judge; S1) 8. The action by the creditor is in.the name of the. Executor or administrator. However, where the conveyance or attempted conveyance had been made by the deceased in hs ifetime in favor of the executor or administrator, the action which a creditor may bring shall Bevin} the name of all the creditors, and permission of tne court and fling of Bondsassabove prescribed, are not necessary (RULES OF COURT, Rule 87, Sec. 10). Payments of the Debts of the Estate : Give an outline on how the executor or administrator shall pay the debts of the estate of the decedent. ANS: The following rules shall be followed: 1. It, after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debls, the executor or administrator shall pay them within the time lnited for that purpose (RULES OF COURT, Rue 88, Sec. 1); If the testator makes provisions by his wil, or designates the estate to be ‘approoniated for ine payment of his dels, the expenses of administration. oF the family expenses, they shall be paid according to the provisions of the will (RULES OF COURT, Rule 88, Sec. 2) 3. Ifthe provision made by the will or the estate appropriated is not sulficient for that purpose, such part of the estate of the testator, real or personal. as is not disposed of by wil, if any, shali be appropriated for that purpose (RULES OF COURT, Rule 88, Sec. 2) 575 /| aw (SSEEs ‘a, The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses (RULES OF COURT, Rule 88, Sec. 3); b. I said personal estate Is not sufficient for that purpose, or its sale ‘would redound to the detriment of the participants of the estate, the ‘whole of the real estate not disposed by of will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor (RULES OF COURT, Rule 88, Soc. 3); 4, In case of deficiency, where devisees, legalees, or ntered into sion of portions of the. fore. id expenses have been seltled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, setle the amount of their several iabiliies, and corder how much and in what manner each person shall contribute, and may issue execution as circumstances require (RULES OF COURT, Rute 88, Sec. 6); and 5. Ifthe cour is saused that a Lontngny cla uly fed is valid, & may order the executor or administrator to retain in his hands sufficient estate to pay such contiagent,-élaim when’ the same becdmes absolute, or if the estate is insolvent, Sufficient fo pay a portion equal.to the dividend of the other creditors (RULES OF COURT; Rule 88, Sec. 4) = Q: How are contingent claims paid? ( ANS: If it becomes ebaclule and is presente tothe colit as an absolute claim within 2 years from the time allowed for the presentation of clgims, it yil be paid in the same manner as ohher cldims, After said period, the creditor may-proceed against the struts, provided said contingent claims had been fled ar allowed by the probate court (De Baus ye Guzman, GR. No, L-28298, November 25,1983) ‘Soles, Mortgages, and Other Encimbronces of Proserty of Dececlent Q. When may thé court order the sale of pérsonal estaté of the decedent? ‘ANS: Upon the application ofthe executor or adrninistrator, and dn written notice to the heirs and other persons interested, the court may order the’whole or a part of the personal estate to be Sold, iit appears necessary\for the’ purpose of paying debts, ‘expenses of administration, or legacies, or for the preservation of the property (RULES OF COURT, Rule 89, Sec. 1) Q. May the court authorize the sale of real estate in lieu of personal estate? What are the instances, if any? (PIS-CT) ‘ANS: The court, on the application of the executor or administrator and on written notice to the hairs, devisees, and legates residing in the Philippines, may authorize the ‘executor or administrator to sell, mortgage, or otherwise encumber so much as may be Necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and legacies: 1. W the Personal estate of the deceased is not sulfcient to pay the debis, expenses of administration, and legacies, 2, Itthe sale of such personal estate may Injure the business or other interests of those interested in the estate, 3. Ia testator has not otherwise made Sufficient provision for the payment of such debts, expenses, and legacies, . if it clearly appears that such sale mortgage, or encumbrance would be beneficial to the persons interested: and ia part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale, mortgage, ‘or cther encumbrance of the whole of such real estate, or so much thereof as 576(_ 2 BEDAN REDBOOK Je is necessary or beneficial under the circumstances (RULES OF COURT, Rule 89, Sec. 2) 4, the deceased was in his lfotime under Contract, binding in law, to deed real property, or an interest therein (RULE OF COURT, Rule 89, Sec. 8). 5. If the decease has during his lifetime held real property in Trust for another person (RULES OF COURT, Rule 89, Sec. 9) Q. May the court authorize the executor or administrator to sell the whole of a part of the real of personal estate, although not necessary to pay debts, legacies, or administration expenses? ‘ANS. Yes, when it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legates, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees, and legates who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions (RULES OF COURT. Rule 89; Sec 4) Distribution and Partition i Liquidation 3 : Define Liquidation |ANS: Liquidation refers to the determination of all the asséls of the estate and the payment of all the debls and expenses (Bemardo v. Couft of Appeals, G.R. No. L- 18148, February 28, 1963). é \ ‘ iB i \ Q: Outline the steps for distribution and partition of the estate of the decedent. ANS: The stops for distribution and paritionare the following: + 1. Whi is. funeral charges, and “expehseePGf Adhinisration,_the allowance fo the widow, and inheritance tax. ifany. chargeable tothe este in accordance with law, have been. paid, the court, on the applicaion of the txecutor or administrator. or of person interested in the estate, and alter hearing upon notice, shail assign the fesidue of the estate to the persons anttled tothe same (RULES OF COURT, Rulle-90, Sec. 1): 2. No-distibuton shall be allowed until the payment of the obligations above ‘mentioned has been made or provided for, unless the distibutees, or any of them, give a bond, ina sum to be fied by the court, conditioned for the payinent of said obligations within such time as the court directs (RULES OF COURT, Rule 90, Sze. 1): 3. Questions as io advancement made, or meged to have been made. by the deceased to any heir may be heard and determined by the cour having jutisdicton ofthe estate proceedings (RULES OF COURT, Rule 90, Sec. 2) 4, Expanses of partion may be paid by the executor or administrator out of the assets in his hands i 2. Sufciont Equitable tothe court @ And net inconsistent withthe intention ofthe testator, otherwise, they Shall be paid by the parties n proportion to their respective shares oF interest in the premises (RULES OF COURT, Rule 90, Sec.9) 5. Cortfed copies of final orders and judgments ofthe court relating to the real estate or the partion thereof shall be recorded in the registry of deeds of the province where the propery is situated (RULES OF COURT, Rule 90, Sec.4): nd S77 REMEDIAL LAWGDN 7 333 6. ILthere is a controversy before th are the lawful heirs of the deceased person or as the distributive shares fo which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases (RULES OF COURT, Rule 90, Sec. 1). ‘of Partition : What isa project of partition? ANS: It is a document prepared by the executor or administrator setting forth the ‘manner in which the estale of the deceased isto be distributed among the heirs. If the estate is a testale estat, the project of partion must conform to the terms ofthe wil if intestate, the project of partion must be in accordance with the provisions ofthe Chil Code (ALBANO, Reviewer, supra at 68, citing Camia de Reyes v. Reyes de Llano, G.R. No, L-42082, October 28, 1936). The heirs may, by agreement, submit a project of patttion to serve as a basis of the order of distribution. The heirs who do not agree thereto may submit, @ countor-project of partition (Reyes v. de Llano, supra). In approving a project of partion, itis not nécessary.for the court to state the specific property adjudicated to an heir (in re: De Borja v. De Borja, C.R. No. L-1259, April 27, 1949) but may avard the seme tothe heirs in pro indlviso shares. I they cannot agree fn their respective sperific participations, they-can thereafter resort to an action for parition (RULES OF COURT, Rule 65). : Does the finality of the approval of the project of partition terminate the probate proceeding? ANS: The finality of the approval_of the project of parttion\by itself alone does not terminate the probate proceedings. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated tacause a judicial partion is not final and conclusive and does not prevent the heir from bringing an action to obtain-his share, provided the. prescriptive period therefor has not elapsed (Lee v..Court of Appeals, G.R. No, L-37135, December 28, 1973), Remedy of an Heir Entitled to Residue but not Given his Share Q: What is the remedy of an heir who is entitled to receive his distributive share from the residue but was not given the same? ANS: It depends, 1. Ihe is excluded from the proceedings, ihe may move for the reopening of the proceedings before the order declaring the same closed has become final and executory. 2. Ithe is not excluded but only “as not received his distributive share under the project of partition, the remady is to file a motion with the probate court for the delivery to him of hs share of the estate. 3. Ifthe estate proceedings have already closed, he should file a motion for the reopening of the proceedings within the prescriptive period. The remedy is not to file an independent action for annulment of project of partition (Guilas v. Judge of CFI Pampanga, G.R. No, L-26695, January 31, 1972) Instances when the Probate Court may Issue Writ of Execution Q: May the probate court issue a writ of execution? ANS: As a general rule, the probate court does not issue a writ of execution. Its orders Usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, a8 such, does not render any judgment enforceable by execution (Spouses Pastor, Jr. V. Court of Appeals, G.R. No. L-86340, June 24, 1983), 578Note: The following are the only instances when the probate court may issue a writ of execution: 1. To enforce the contributive share of the devisees, legatees or heirs when they have entered into possession of the estate before the debls and expenses have been settled ana paid (RULES OF COURT, Rule 88, Sec. 6); 2. To enforce the payment of the expenses of partition against a party interested in the partion who does not pay his proportion or share (RULES OF COURT, Rule 90, Sev. 3); and 3. To satisly the costs when a person is cited for examination in the probate proceedings (RULES OF COURT, Rule 142, Sec. 13). B.ESCHEAT : Define escheat. ANS: Escheat is a proceeding whereby the state, by virtue of its sovereignty, steps in ‘and claims the real or personal property of a person who dies intestate leaving no heir. In the absence of a lawful owner, a property Is claimed by the state to forestall on open “invitation to self-service by the first'comers” (Republic v. Court of Appeals, G.R. No. 143483, January 31, 2002). When toile 5 Q: When may a petition for escheat be filed? Siijay ANS: When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the Same, the Solicitor General or hs representative in behalf of the Republic of the Philippines, may file a petition in the RIC of the province where the deceased last resided or in which he had estate, if he Q: Who may be parties in a petition for escheat? “= ANS: They are: (GIDU)- z 1. An escheat proceeding must be inated by the Government through the Solictor General or his representative. 2. Ail Inlorested partes, especialy the Seluab occupants and the adjacent lot ‘owners shall be personally notified of the procéeding and given the opportunity: fo present their vald claims; othenvise, it wil be reverted to the State (Bermuda v. Court of Appeals, G.R. No, L-98622, October 26, 1987). 3, Any person alleging to have a Direct right or interest in the property sought to be eecheated is likewise on interested and necessary party, may properly ‘oppose the petition for escheat or flea claim thereto with the court within the period provided for (The Muricial Council of San Pedro, Laguna v. Colegio de San Jose, Inc. sup). 4. Under the Unclaimed Balances Law, a depositary bank should be joined as a respondent in an action for escheat since @ decree of escheat would necessoriy deprive i of the use of such deposits (Act No. 3936, Sec. 3 Republic v. CFLof Mania, G.R. No, L-30381, August 30, 1988) Requisites for Filing of Petition Q: What are the requisites for the filing of a petition for escheat? ANS: They are: 4, That a person died intestate: 2. He left no heirs or persons by law entitled to the same: and 3. The deceased left properties in the Philippines (RULES OF COURT, Rule 91, See. 1) 879 li AL LAW 1/ REMEDIBEDAN RED BOOK 285 Q: May escheat proceedings be converted into settlement of estate? ANS: No. The escheat court does not have the power to order, or fo proceed with, the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to oppositors (Municipalities of Magallon, et al. v. Bezore, G.R. No. L-14157, October 26, 1960). a fi - at, Ponca : What is the remedy of respondent against a petition for escheat? ‘ANS: A motion to dismiss must be filed by the respondent when a petition of escheat does not state facts which entitle the petition to the remedy prayed for, and even ‘admitting them hypothetically, itis clear that there is no ground for the court to proceed to the inquisition provided by law (HERRERA, Special Proceedings, supra at 227-228). Q: When and by whom may a claim to estate escheated be filed? ANS: If a devisee, legatee, neir, widow, widower, or other person entitled to such estale appears and files a claim thereto-with thé, tOvr-within 5 years from the date of such judgment, such person shalltiave possession of and tile to the same, or if sold, the municipality or city shall’ be, accountable to him for the-proceeds, alter deducting reasonable charges for ihe care of the estate; but-a claim nol made within the said time shall be forever barred (RULES OF COURT, Rule 91, Sec. 4) C GUARDIANSHIP @: What is guardianship? ANS: A guardjanship/is a tnist relation of the most sacred\character, in which one person, called f “guardian” atts for another called the *ward" whom the law regards as incapable of managing his own affairs. A guardianship is desighed t9 further the ward's, wellbeing, not the of the’ guardian. It is imended to preserve the ward's property, as well as to render an) assistance that the ward may personelly-require (Oropesa v. Oropesa, G.R. No! 164528, April 25, 2012) Q. Whats the jurisdiction and venue of a guardianship proceeding? ‘ANS: The following rules regarding the jurisdiction and venue of a guardianship must be observed: ; 1. Guardianship over incompetents: RTC of the place where the incompetent resides. If a non-resident, with the. RTG of the place where the incompetent’s property or part thereof is situated (RULES OF COURT, Rule 92, Sec 1). 2. Guardianship over minors: Family Court of the place where the minor resides. If @ non-resident, with the Family Court of the place where the minor's property or part thereof is situated (AIM. No. 03-02-05-SC, RULE ON GUARDIANSHIP OVER MINORS, Sec. 3). Q. May the court taking cognizance of a guardianship proceeding transfer the ‘same to another court? ‘ANS: Yes, The court taking cognizance of a guardianship proceeding, may transfer the ‘same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall hhave ull jurisdiction to continue the proceedings, without requiring payment of additional court fees (RULES OF COURT, Rule 92, Sec. 3) 580.Gea eeerar/ 33 aes ©. Who may petition for the appointment of a guardian of an incompetent or minor? ANS: The folowing may fle a peiton fr appcintment: 1 jrease Gt an Incompetent: Any elatve, frend, orolher person on behalf of a twaident minor or ncompetent who has no parent oF lawful guardian (RULES OF COURT, Rue 99, Soc.) 2, Imease of minor Any relative or ther person on behalt of a minor, or the rhea fouroen yrs of age or Over, may petition the Famly Court for the appoinment of © general qurdian over the person or property, or both, of uch'hinor The peton may also be fied by be Secrelary of Socal Welfare Sho Development and by the Secretary of Health in the case of an insane minor who noeds To be hosplaized (AM. No. 09-02-05-SC, RULES ON GUARDIANSHIP OF MINORS. Sec. 2). Note: When the minor resides ouside the Philippines but has property inthe Prilppines any felave or fried of such minor, or anyone inerested in Nis property, in expactancy or‘othefwise, may petition the Family Court for the Sopontnent of a guaran overe property (A.M. No, 03-02-05-SC, RULES OW GUARDIANSHIP OF MINORS, Seo. 12). a 10, What are the grounds for the appoinimeiif@Pa guardia of a minor? ‘ANS, The grounds for the appointment of a guardianover the person or property, oF Both, ofa minor ae the foloning:(OSURB| j 1: “Death, continued absence, or ncapacty of his pargniss 2, Suspension, deprivation of termination of parental aulhehiy: 3 Remarriage Gf his surviving paren, ithe latter Ié found Unsuitable to exercise parental euthoriye oF 2 J 4, finn the Best rests of the pinor so réquie| (A.M) No, 09-02-05-SC, RULES ON GUARDIANSHIP OF MINORS,'Se6.12)3 7555" @: Who may be’appointed as guardian of the person or property, or both, of an incompetent? ( [ANSr In the appointment of @ quarcian {6Rhliacompetent, he choice of @ suitable person is left tothe sound discretion of the court (Goyenav. Gustlo, G.R. No, 147148, “Tanuary 13, 2003). Courts should not appoint persons as guardians who are not within the jurcieion of our cours for they wil find dificult to protect the wards (Vanclv. Bales, GR. No, 132223, June 19, 2001). @: Who may be appointed as guardian of the person or property, or both, of a minor? ‘ANS: In default of parents or @ court-appointed guardian, the court may appoint one, observing as far as practicable, the following order of preference: ‘The surviving grandparent and in case several grandparents survive, the court shail select any of them taking into account all refevant considerations; 2. The oldest brother or sister of the minor over twenty-one (21) years of age, Unless unfit for disqualified: 3, The actual custodian of the minor over twenty-one (21) 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 (A.M. No, 03-02-05-SC, RULES ON GUARDIANSHIP OF MINORS, Sec. 6) 581 / REMEDIAL LAW. Vieel S25 General Powers and Duties of Guardians State the powers and duties of a guardian. ANS: The powers and duties of a guardian are the following (CaPS-MaPIA) 1. To have the Care and custody of the person of his ward, and the management Of his estate, or the management of the estate only, as the case may be (RULES OF COURT, Rule 96, Sec. 1); 2, To Pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an ‘order forthe sale or encumbrance thereof (RULES OF COURT, Rule 96, Sec. 2h 3. To Selle accounts, collect deb!s, and appear in actions for ward (RULES OF COURT, Rule 96, Sec. 3); 4, To Manage the ostate of the ward frugally and without waste, and apply proceeds to the maintenance of ward (RULES OF COURT, Rule 96, Sec. 4); 5. To join in Partition after hearing (RULES OF COURT, Rule 96, Sec. 5); 6 To render to the court-an Inventory of the estate of his ward within three (3) months afier his appointment, and\ annually. after such appointment an inventory and account, which must be under oath (RULES OF COURT, Rule 96, Sec. 7), and 7. To render’an, Account to.the-court-for.seitlement and allowance upon the expiration of a year from the time of his appointment, and as often thereater ‘as may be required (RULES OF COURT, Rule 96, Se¢. 8) Termination of Guardianship Q: When is terminated guard AN ship terminated? ‘he guardianship is terminated under the following rules: 1. Im case of an incompetent: If upon petition by a person declared incompetent, or his guardian, relative or friend, and after trial, it is judicially determined that the person is no tonger incompetent, his competency shall be adjudged and the guardianship shall cease (RULES OF COURT, Rule 97, ‘Sec. 7).\The guardianship may-also be terminated when it appears that the ‘uardianship is no longer necessary (RULES OF COURT, Rule 97, Sec.) 2. In case of a minor: The.court, motu proprio or upon verified motion of any person allowed to file petition for guardianship, may terminate guardianship on the ground that the ward has come of age or has died (A.M. No. 03-02-05-SC, RULES ON GUARDIANSHIP OF MINORS, Sec. 25). : State the grounds for the removal of the guardian ANS: They are the following (IUWAR): 4. Insanity 2. Incapable of discharging the trust: 3. Unsuitabilty, 4. Wasted or mismanaged the property of the ward: 5. Failure to render an Account for 30 days after itis due; 6. Failure to make a Return for 30 days after it is due (AM. No. 03-02-05-SC, RULES ON GUARDIANSHIP OF MINORS. Sec. 24) : On what ground may a guardian resign? ‘ANS: The court may allow the guardian to resign for justifiable causes. Upon the ‘emoval or resignation of the guardian, the court shall appoint a new one (A.M. No, 03- 02-05-SC, RULES ON GUARDIANSHIP OF MINORS, Sec. 24) 582GEE ey 7 25 D. WRIT OF HABEAS CORPUS Writ of Habeos Corpus under Rule 102 of Rules of Court Q: What is a writ of habeas corpus? ANS: It is a wrt directed tc the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause ‘of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. It is a high prerogative, common-law ‘writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person (llusorio v. Bildner, G.R. No, 139789, May 12, 2000). Q: To what cases shall a writ of habeas corpus apply? 'ANS: The writ shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by.which the rightful custody of any person is, ‘withhold from the person entitled thereto (RULES OF COURT, Rule 102, See. 7). : Distinguish wrt of habeas corpus from privilege of writ of habeas corpus. ANS: The writ of habeas corpus is the order requiring the person to whom itis issued to produce the body of the person alleged o be restrained of hs liberty and to justily the detention. The wit issues as a maiter of course whem it appears from the petition that the writ ought to issue, the suspension of the privilege notwithstanding (RULES OF ‘COURT, Rule 102, Sec. 8). On the other hand, the privilege’ of writ of habeas corpus is the further order inquiring into the cause of detention and directing the release of the person if he is illegally detained (RULES. OF COURT, Rule 102, Sec. 15; RIGUERA, Primer-Reviower on Remedial. Law, Vol. 2, (2017),p. 142) [hereinafter 2 RIGUERA, Remedial Law. Contents of the Petition Q: State the contents of the application of a writ of habeas corpus. ANS: The verified pation must set forth: (POP-C) ‘That the Berson in whose behalf pplication is made is imprisoned or restrained of his liberty: eee 2. The Officer or name of the person detaining another, or if unknown, such person may be described by an assumed appellation, and the person who is Served with the writ shall be deemed the person intended; 3, The Place where the detainee is imprisoned or restrained. if known: and 4. A'Gopy of the ‘commitment or cause of the detention, it can be procured without impairing the efficiency of the remedy. If no legal authorily appears for {he imprisonment or restraint, such fact should be stated (RULES OF COURT, Rule 102, Sec. 3). Contents of the Return Q: State the contents of the return of a writ of habeas corpus. ANS: The person or officer having custody of the person in whose behalf the pplication is made shall state in the return the following 7. Whether he has or has not the party in his custody or power, or under restraint 2. It he has the party in his custody or power, or under restraint. the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held: 583BEDAN RED BOOK 3. Ifthe party is in his custody or power or is restrained by him, and is not produced, particulary the nature and gravity ofthe sickness or infirmity of such, party by reason of which he cannot, without danger, be brought before the ‘court or judge; and 4, Ihe has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at wivat time, for what cause, and by what authority such transfer was made (RULES OF COURT, Ruie 102, Sec. 10) Distt pees , Q: Distinguisk a preliminary citation from a peremptory writ. ANS: A preliminary citation refers 'o a citation to the government officer having the person in his custody, the legality of which is not patent, to show cause why the writ of hhabeas corpus should not issue. A peremptory writ, on the other hand, is issued when the cause of the detention eppears 10 be patenty illegal and the non-compliance therewith is punishable (cee Hick Yor-v.-The-Insular Collector of Customs, G.R. No. L- 16779, March 30, 1921). When not Proper/Apticable Q; When isthe writ of ia3eas corpus not proper? ANS: Application for'a.writ of habeas corpus is not proper 1. For asserting of vindicating ine denial ofthe right Yo bail (Galvez v. CA, GR. ‘No, 144046, October 24, 1894) 2. For correcting errors Inthe appreciation of facts orilaw (Sotto v. Director of Prisons: G.R. No. L-18671, May 30, 1962) 3. Whefe the: Pal court had juriedietion over the cause, over the person of the accused, and to impose the penalty provided for by law, the mistake committed bythe tal court, if any, refers to the appreciation of the facts andor in the appreciation of tha law (ld) oF 4, Once & person detained Is duly charged in court, Ne may no longer question his deténtion through @ petition for issuance of ‘a writ ofhabeas corpus. His remedy would be'to quash) the information apdior the wortant of arrest duly issued (Rodriguez yl ‘Bonifacio, A.M. No. RTd-99-1510,November 6, 2000). When the Writs Disallbwed or Discharged Q: When may the court deny a petition for habeas corpus? ANS: The court may deny a petition for habeas corpus in the following instances: 1. I jurisdiction appears after the wit is allowed notwithstanding any informality (oF defect in the process, judgment or order; 2. Ifthe person is in the 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, 3. _Iftie person is charged with or convicted of an offense in the PHL: 4. If the person is suffering imprisonment under tavful judgment (RULES OF COURT, Rule 102, Sec. 4); or 5. Detention of a suspect for 3 days withcut charge, provided that the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must be in accordance with R.A. No, 9372, otherwise known as Human Security Act of 2007 (R.A. No. £372, Sec. 18). 584FEEL neekserel aay 7 23 Q: Distinguish writ of habeas corpus from writ of amparo and habeas data ANS: The writs of habeas corpus, amparo, and habeas data differ in the following ee PTT) fae) AT Right to liberty of | Right to life, liberty, and | Right to privacy in life, and righttul | security of the aggrieved party | liberty or security of the custody by the | and covers only extralegal | aggrieved party and may aggrieved party | killings and enforced | cover extralegal killings (RULES OF | disappearances (A.M. No. 07- | and enforced COURT, Rule | 9-12-SC, Sec. 1) disappearances (AM, No. 102, Sec. 1). ® 08-1-16-SC, Sec. 1) As to whatis vidlated ‘Actual violation of | Actual or threatened violation of aggrieved party's right (A.M. aggrieved party's | No. 08-1-16-SC, Sec. 1) right (RULES OF Snag COURT, Rule . 102, Sec. 1). Mayor may ot be] Pbk ofl or epayee ora |/ Pubic ial or employee Le Shoat or | pivaee nda of enty fora perso, aiacual or employee. (AM. No. 08-1-16-SC, Sec./| entity engaged in the ° a cel eceaiy c ; Ce a ’ ‘Meratonvoostro the 5 Sr ere tee | Brame | Coroosondence of the soreatee yi CSeiire eeenckouces 1. Party for whose | Aggfieved party or by any | Aggrieved party; but in relief it. is | qualified person or entity in the | cases of extralegal killings Incnded: of | flowing order ond ‘rforcd intended: or | Gy ° member of the | aleappearances, may be zerao’) on ne | immediate family ot the | fleaby perso ees | aggrieved pany, ie, | tany” member of the barat eiiee | Spouses ctmaren and | "immediate Tomy of the | Rive 103, See | parents copied pay. Le. | | 3 | 2.any ascendant, descendant | spouse, children and | I | oF collateral relative of the | parents; or | | Sgtmvod pony wihin te |2.5ny-"— acondan. | Weare Yeogres ot |" decondent or caters | consanguinity or affinity; or relative of the aggrieved seep Concerned ion, | party within the Toth Stanizaton aesocaion'er | ew” degree of institution (right to file is | consanguinity or affinity successive) (AM. No. 07-9- | (AM No, 06-1-16-SC, 12-SC, Sec. 2) Sec. 2) 585 SE4RTC or any judge thereot or 2.CA. of any _member thereof in instances authorized by law ot 3.8C or any member thereof or 4. Sanciganbayan_or any member thereof in aid of iis appeliate jurisdiction (RULES OF COURT, Rule 102, Sec 2. If granted by SC or,CA'or ‘any member of such courts (or Sandiganbayan in aid of its appellate jurisdiction, and the juristiction’,shall not be exclusive.of the SC, || itis enforceable anywhere in the Philippines; if granted by the RTC or. judge thereof, it is enforceable only within his judicial district (RULES OF ‘COURT, Rule 102, Sec. 2). I granted by the SC’or CA ‘or any member of sucit courts, it may be made” returnable before the court ‘or any member thereof or before an RTC or any judge thereof. It granted by the RTC or 2 judge thereof, itis Totumiable before himself (RULES OF COURT, Rule 102, Sec. 2) BEDAN RED BOO VJs 4. RTC where the petitioner fr respondent resides, or that © which has. jurisdiction over the place where the data or information is gathered collected or stored, at the ‘option of petitioner; or 2.8C, CA or ‘Sandiganbayan vihen the ‘ction concerns public data files of government offices (A.M, No. 0B-1- 16-8C, Sec. 3). Coen 4.RTC of the place where the threat act or omission was ‘committed or any of its elements occurred; or 2. Sandiganbayan or any justice thereof; 3.CA or any justice thereof; or 4.SC or any justice thereof (A.M. No. 07-9-12-SC, Sec. 3). eters The-wit “shall-be enforcdable anywhere in the Philippines regardless of who issued the same. eos ifissued by the RTC or | IWissued by the RTC or any Judge thereof, itis |“any judge thereof, it shall returnable’ before such | be retumable before such court or judge. court or judge. It issued by the | If issued by the CA or the Sandiganbayan or the | Sandiganbayan or any of CA or any of their | its justices, it may be justices, it may be | retumable before such returnable before such | court or any justice court or any justice | thereof, or to any RTC of thereof, or to any RTC | the piace where the of the place where the | peiilioner or respondent threat, act or omission | resides or that which has was committed or any | jurisdiction over the place occurred. information is gathered, collected or stored. If issued by the SC or any of its justices, it may be returnable before such Court_or IWissued by the SC or any of its justices, it may be | | of its | the dala or otumable before such 5882B ee Asto Dato and time of hearing is specified in the wait (RULES OF COURT, Rule 102, Sec. 8). ‘Served to the person to whom itis directed; and if rot found or has not the prisoner in his custody, to the other person having or exercising such custody (RULES OF COURT, Rule 102, Sec. 7) ie If the person to whom the wilt is directed neglects or refuses to obey or make retum of the same, or makes a false return thereof. or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours after the demand therefore, a true copy of the warrant or order of commitment, he shall | Coon atreecced ‘any justice thereof, or | Court or any justice the Sandiganbayan or | thereof, or before the CA CA or any of their | or the Sandiganbayan or justices, or to any RTC | any of its justices, or to of the place where the | any RTC of the place threat, act or omission | where the petitioner or was committed or any | respondent resides or of its elements | that which has jurisdiction, occurred (A.M. No. 08- | over the place where the 1-16-86, Sec 3). data or infomation is gathered, collected or stored (A.M. No, 08-1-16- SC, Sec. 4). Petitioneiis exempted from payment of docket and other, lawful fees (AM. No. 07-9-12-8C, Sec. 4). when hearing is conducted Only an __indigent petitioner is not required to pay docket and other lawful fees. ‘Summary hearing shall be ‘conducted not later than 10 working days from the date of the issuance of the writ (A.M. No. 98-1-16-SC, Sec. 6) ‘Summary hearing shall be condutted not later than 7 days fiom the date of the issuance of the writ (A.M, No. 07-9- 12-SC, See, 6). Cea Served upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apnly etme eal If the respondent refuses to make a return or makes a false return, he may be punished with imprisonment or fine for committing contempt oy REMEDIAI Vi(_ > » BEDAN RED BOOK Terfet 10 aggrieved the party the sum of 1,000 and may be punished for contempt (RULES OF COURT, Rule ‘The person who makes the return is the officer by whom the prisoner is imprisoned or the person jn. whose custody the prisoner is found (RULES OF COURT, Rule 102, See. 8). o cera 102, Sec. 16). ‘The person who files the return is the respondent. allowance of a general der ‘Argeneral denial of the alfegs nok be allowed. lure of respondent to file a return If the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte (AM. No, 07-9-12-SC, Th ease \the respondent fails to fle a return, the court, justice or judge shalkproceed to hear tne pelition ex parte, granting the petitioner such relief Sec. 12). as the/ petition may warrant unless the court in its discretion requires the petitioner to submit evidence (A.M, No. 08-1 36-SC, Sec. 14). Ronee There aré prohibited pleadings and motions. As to gragt of interimseliefs 1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safe keoping of the person imprisoned or of the case requires: The court or judge must be satisfied that the person's ilhess is so {grave that he cannot be produced without any danger (RULES _OF restrained as the nature | The court, judge may grant interim reliefs, to wit: justice or 1. Temporary protection order Inspection orrer Production order and Witness protection order (A.M. No. 07- 9-12-SC, See. 14). 2 3EDAN RED BOO 2855 ‘COURT, Rule 102, Sec. 12). Within 48 hours from Notice of the judgment or final order appealed from. = Astocor If detention is by \public authority, the quantum of proof is clear and Convincing evidence. If detention is by private authority, the quantum of proof is preponderance of etnies Pema) oot Cone 3 erties ‘Quantum of prosfis substantial evidence. evidence, Pei enn eee E The presumption of regularity does not apply (A.M. No. 07-9- 12-SC, Sec. 17). ‘Judgment shall be rendered within 10 days from the time the petition is submitted for decision ments is enforced . Judgment — shall be enforced within § working days (A.M. No. 08-1-16- SC, Sec. 16). ' Working days from the date of notice of the ‘5 working” days. from the date of notice of the adverse”) judgment. | judgment or final order. Filed with SC via Rule |/Fled,with SC via Rule 45 45. AM. No 07-9-12- | (AM.\ No. 08-1-16-SC, “SC, Sec. 19). Seo, 19). May, be [ESnsodated"WiNEalinina| acton ‘led ubsequagt othe peion upon its | eterminaion it cannot proceed for a valid cause such as failure of patiioner or witnesses lo appear {due to threats on their lives, the court shall not dismiss the pation, but shall archive i. Mt may _ 589) lh YeGaye 7 3s bbe revived by the court ‘motu proprio or upon motion by any party (AM. No. 07-9-12-SC, Sec. 20). Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of ‘Minors (A.M, No, 03-04-04-SC) : Who may file a petition of writ of habeas corpus involving custody of minors? ANS: A verified petition for the rightful custody of a minar may be filed by any person Claiming such right (A.M. No, 03-04-04-SC, Sec. 2) Q: What is the purpose of the petition? ‘ANS: In cases involving minors, the purpose of the petition for habeas corpus is not limited to the production =f the child before the court; the main purpose of the petition is to determine who has the rightful custody over the child (Bagtas v. Santos, G.R. No. 166682, November 27, 2009). Q: What are the contents of the petition? ‘ANS: The verified petition shall contain the following: (PNOO) 4. The Personal circumstances of the petitioner and respondent; 2. The Name, age and present whereabouts of the minor and his relationship to the petitioner and respondent; 3. The material Operative facts constituting deprivation of custody; and 4. Such Other matters which are relevant to the custody of the minor (A.M, No, 03.04-04-8C, Sec. 4). Q: State the requisites for the grant of the writ of habeas corpus involving custody of minors. ANS: The ‘equisites are the following: (Pe-With-Best) 41. The Petitioner has the right of custody over the minor, The rightful custody.of the minor.is being Withheld from the petitioner by the respondent: and 3, Thatitis to the Best interest of the minor concerned to be in the custody of the petitioner and not that of the respondent (Sombong v. CA, G.R. No. 111876, January 31, 1996), : Will a motion to dismiss prosper in case of petitions for writ of habeas corpus involving custody of minors? ‘ANS: No. A motion to dismiss the petition is nat allowed except on the ground of lack of jurisdiction aver the subject matter or over the parties. Any other ground that might ‘warrant the dismissal of the petition may be raised as an affirmative defense in the answer (A.M, NO. 03-04-04-SC, Sec. 6) Q: Section 5 (b) of R.A. No. 8369 (Family Courts Act of 1997) granted the Family Courts en exclusive original jurisdiction to hear and decide petitions for custody of children and habeas corpus in relation to the latter. Does this mean that the CA and SC are divested of jurisdiction over said petitions? ANS: No. R.A. No, 8369 did not divest the CA and the SC of their jurisdiction over habeas corpus cases involving the custody of minors. The provisions of RA. No. £8369 reveal no manifest intent to revoke the jurisdiction of the CA and SC to issue writs of habeas corpus relating to the custody of minors (Madrinan v. Madrifian, G.R. No. 189974, July 12, 2007).E sae Mono We fe : ot UC coi Ca Cc Eo Ba TeeT Te oar as Creatas Change of fullname or | Change of first name or | Correction of substantial sumame (substantial | nickname and correction of | errors or cancellation of corrections), lerical errors of entries in | entries in the civil the Civil ~—Registry | ragisty (substantial (typographical or clerical | corrections). (ities a = Judicial + Administrative + Judicial + Hearing is + No hearing required, ‘+ Hearing is necessary necessary, ‘+ Adversarial in nature bacause it involves substaniial changes. and affects the status of.the individual e Reno 2 A person desiring to | Any person having direct and _| Any person interested in change one's name | personal interest in. the | any act, event, order or (Sec. 1) correction of a clerical or-| decree conceming the typographical error in an | civil status of persons entry and/or change of first | which has been. name or nickname (Sec. 3). | recorded in the civil register (Sec. 1) = : Initiatory pleading < Signed and verified | Verified petition in the forrn of | Verified petition for the A LAW MEDIAL Ws peiition (Sec. 2) affidavit (Sec. 3) cancellation or correction of any entry | (Sec. 0). PIC of the province in | a.Local civil registy office of | RTC of the cily or which petitioner | the city of municipality | province where the resided for three (3) | where the record being | corresponding civil years prior to filing | sought to be corrected or | registry is located (Sec. (Sec. 2) changed is kept; 1). Local civil registrar of the place where the interested _|EDAN RED BOO = been a bona fide resident of the province where the | b. petition is fled for at least three (3) years prior to the | c date of such fing: b. The cause’ for which the change of petitioner's name is sought; and 4 ©. The name~ asked for e. d. All names by which petitioner is. known (Sec. 2). parly 1s presenily residing ‘or domiciled, it petitioner has already’ migrated to another place in the country, c.Nearest Philippine. consulate in case of citizens of the Philippines residing or domiciled in foreign countries (Sec. 3). establish the merits of the petition; That the ~ petitioner. is competent to testify to the. rmatlers stated: Paiticular or. entries;which are. ronsous entry Sought to be corrected andor the change sought to be made; ‘All-names by which petitioner is known; Patition shall’ be supported by the following documents: ‘A certified “ true machine copy of the Certificate’ or of the. page of the registry ‘book containing entry or entries sought, to. be. corrected or changed: At least two (2) public or private documents. showing tie correct entry or entries upon which the correction or change shall be based; and Other documents which petition or the city or municipal registrar or the ‘consul general may consider relevant and necessary for the approval of the petition For correction _of been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of Such filing; bbeThe cause for which the\ change of, pelitoner’s name is sought; and ‘The ame asked for d.Ali-names by which petitigner is known,Fe ay 7 3 a Name is ridiculous, tainted with dishonor and extremely difficult to pronounce; Consequence of change of status; Necessity 10 avoid confusion Having continuously used and been known since childhood by a Filipino name, unaware of alien parentage; A sincere desire to adopt a Filipina wame lo _ erase ‘erroneous enty of date of birth or the sex of a Person: earliest school record. or earliest school documents such as, but not limited to, medical records, ‘baptismal certificate and other documents issued by religious authorities; v. For change of gender corrected: certification issued by an accredited government | physician attesting fo the fact that the petitonersshas._ not undergone ~~ sex change or sex transplant; vi, Certification from appropriate law, ‘enforcement agencies that the petioner _hasesno pending case oF 10, ‘riminal record (Sec. 5, as! amended by SoC SeaA. NO. ‘a. Pelitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; b. The new ‘first name or nickname has-been habitually and continuously used by pelitioner and he has been publicly known by that first name or nickname inthe ‘community; or & The change will avoid confusion (Sec. 4). 10172): Upon good and. valid grounds (See. 2). re aay ViBEDAN RED BOOK signs of former alienage all in good faith and without prejudicing anybody 1. When the surame causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest (Republic of the Philippines v. Court of Appeals, GR. No, 88202, December ° 14, 1998) ‘At least once a week for thee (3) consecutive weeks. in a newspaper of, ‘general circulation’ in the province. (notice ‘and hearing)(Sec. 3). Not required Patera Atleast once a week for two 2) consecutive weeks (publish the whole affidavit)—in cases of change of firstname or rickname, in addition to the posting requirement. registrar ‘of consul to post petition in.a conspicuous place for ten (10) consecutive days b. In the case of migrant petitioner, the petition shall be posted first at the office of the Petition- Receiving Civil Registrar (PRCR) for ten (10) consecutive days before sending it to the RKCR Upon receipt. the RKCR shall post again the petition in his office for another ten (10) consecutive days. (Implementing Rules and Regulations of R.A. 9048, Administrative Order No. 1, Series of 2001). Atleast once a week for three__(3) consecutive vieeks in @ newspaper of general circulation in the province (notice and hearing) (See. 4). Not required.fie Ss Ree — person; and | the beginr b. Change of a 1g. Legitimations; | Er lceeame (Bis It Acknowledgments of | eile "Berminaion of Ss ee ee | (Sec. 2). a PT Roe sc ia Court of Appeals | Civil Registrar General under Serra ea = under Rule 41. ‘Section 7, R.A. 9048 or Court | Rule 41. frre Sram ote = (DE LEON & WILWAYCO, Special Proceedings, pp. 537-540). Vd F. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Entries Subject to Correction under Rule 108, in elation to RA, 9048, as.amenk byRALOZE : State the entries that are subject to correction under Rule 108, in relation to R.A. 9048, as amended by R.A. 10172. 'ANS: They are the following: (VON FiBECCS-IS-A-BALD-MA) 1. Judgments declaring marriages Void from the beginning: 2. Naturalization 3. Judicial determination of Filition; 4. Clerical or typographical errors and change of the day and month in the date of Birth; 595BEDAN RED BOO Voluntary Emancipation of a minor; ‘Change of name Election, loss or recovery of Citizenship (RULES OF COURT, Rule 108, Sec. 2h 8. Clerical or typographical errors and change of Sex of a person where it is patently clear there was clerical or typographical error or mistake in the entry (RA. No, 9048, as amended by RA. No. 10172, Sec. 1). 3. Chil interdiction; 10. Legal Separations; 11. Adoptions; 13. Judgments of Annulments of Marriage: 14, Legitimations; 15, Deaths; 16. Marriages; OR 17. Acknowledgments of natural children (RULES OF COURT, Rule 108, See. 2). Note: Under R.A. No. 8048, clerical or typographical errors in entries of the civil register ‘re now to be corrected and changed without need of a judicial order and by the city or ‘municipal civil registrar or consul general. The obvious effect is to remove from the ‘ambit of Ruts 108 the correction or changing of such errors in entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries ofthe civil register. Q: What are the procedural requirements in cancellation and correction of entries? ANS: The following must be complied with: (VPORP) 4. Filing a Verified petition (RULES OF COURT, Rule 108,-See. 1): 2. Naming as Parties all persons who have or Claim :/y interest which would be affected (RULES OF COURT, Rule 108, Sec. 3); 3. Issuance by the court of an Order fixing the time and place of hearing; 4. Giving Reasonable notice to the parties named in the pelition (RULES OF COURT; Rule 108, Sec. 4); and 5. Publication of the order once a.week for three (3) consecutive weeks in a ‘newspaper of general circulation (RULES OF COURT, Rule 108, Sec, 4). G. CLERICAL ERRORLAW Q. What is Republic Act 90487 ANS: Republic Act (RA) 9048 authorizes the city or municipal civil registrar or the consul general to correct a clerical or typographical error in an entry and/or change the first ‘name or nickname in the civil register without the need of a judicial order, RA 9048 amends Articles 376 and 412 of the Civil Code of the Philippines, which prohibit the Change of name or sumame of a person, or any correction or change of entry in a civil register without judicial order Q. What corrections can be made by RA 9048 as amended by RA 101727 ANS: RA 9048 allows these corrections: (CFD) 1. Correction of Clerical or typographical errors in an entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person 2 Change of a person's First name in his/her civil registry document under Certain grounds specified under the law through administrative process. 3. Change of the Day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the ‘entry (RA 9048, Sec. 1, as amended). 596EDAN RED BOOK fez Q. Whatis a clerical or typographical error? |ANS: It refers to a mistake committed in the performance of clerical work in writing, ‘copying, transeribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of bith, mistake in the entry of day and month in the date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction ‘must involve the change of nationality, age, of status of the petitioner (RA 9048, Sec 2, ‘par. 3, as amended). Q. Who may file the petition and where shall it be filed? ANS: Any person having direct and personal interest in the correction of a clerical or typographical error in an entry andlor change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office ofthe city (or municipality where the record being sought to be corrected or changed is kept (RA 9048, Sec. 3). Q. The petition for chrange of first name or nickname may be allowed in any of the following cases: : [ANS: The pion for change of fst name or nickname may be alowed in any of the following cases: : 9 She patiloner finds the frst name oF nickiame,to be ridiculous, tainted with dishonor or extremely dificult to write or pronounce. 2. The new fist name or nickname has been habitually and continuously used by the petttoner and he has been publly known by that by that fst name or nickname inthe community or 3. Tho change wil avoid confusion (FA 9048, Seo). } ERIMINAL PROCEDURES A. GENERAL MATTER Q: What is criminal procedure? ANS: Criminal procedure is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in ‘case of conviction (HERRERA, Remedial Law Vol. IV (2007), p. 1) (hereinafter 4 HERRERA, Remedial Lav, Criminal Jurisdiction: Concept and Requisites for Exercise of Criminal Jurisdiction Q: What is criminal jurisdiction? ‘ANS: Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment for it (De Lima v. Guerrero, G.R. No. 229781, October 10, 2017). Q: What are the requisites for a court to acquire jurisdiction to try a criminal case? ‘ANS: A court acquires jurisdiction to try a criminal case only when the following requisites concur: (ATP) 1. The offense is one which the court is by law Authorized to take cognizance of; 2. The offense must have deen committed within its Territorial jurisdiction; and 3. The Person charged with the offense must have been brought in to its forum for tial, forcibly by warrant of arrest or upon his voluntary submission to the court (Antiporda, Jr. v. Garchitorena, G.R. No. 133289, December 23, 1999). 597