Special Proceedings Memory Aid

San Beda College of Law 100

MEMORY AID IN REMEDIAL LAW

SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS - A remedy by which a party seeks to establish a status, a right or a particular fact. (Rule 1, Section 3)

JURISDICTIONGENERAL RULE: Regional Trial CourtEXCEPTION: MTC has jurisdiction in the following cases:1. Probate proceedings whether testate

or intestate where the gross value of the estate does NOT exceed P300,000 or P400,000 in Metro Manila, EXCLUSIVE of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.

2. DELEGATED JURISDICTION – in Cadastral and Land

Registration Cases covering lots where there is no controversy or opposition or contested lots where the value of which does not exceed P 100T.

– appeal is taken to the CA, not to the RTC since MTC is equal to RTC in this instance.

3. SPECIAL JURISDICTION – petitions for writ of Habeas

Corpus in case of absence of RTC judges.

SC and CA have original jurisdiction over Habeas Corpus cases, concurrent with the RTC.

ORDINARY ACTION

SPECIAL PROCEEDING

to protect or enforce a right or

prevent or redress a wrong

involves the establishment of the right, status or fact

involves two or more parties

may involve only one party

governed by ordinary rules

governed by special rules supplemented

supplemented by special rules

by ordinary rules

heard by courts of general jurisdiction

heard by courts of limited jurisdiction

Initiated by a pleading and parties respond through an

answer

Initiated by means of a petition and parties respond by means of

an opposition

DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON

1. Extrajudicial Settlement of Estate (Section 1, Rule 74) 2. Partition (Rule 69)3. Summary Settlement of Estate of Small Value (Section 3, Rule 74) 4. Probate of Will (Rule 75 to 79) 5. Petition for letters of Administration in cases of Intestacy (Rule 79)

PROCEDURE IN SETTLEMENT PROCEEDINGS

REMEDIAL LAW COMMITTEE CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS : Martessa Nuylan, CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and SpecialProceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

Issuance of LettersTestamentary/Administration

(A special administrator may be appointed) (Rule 77-80)

Probate of the Will if any (Rule 75 –76)

Payment of ClaimsSale/Mortgage/Encumbranceof Properties of the Estate

Distribution of Residue, if any(But this can be made even before

payment if a bond is filed by the heirs)

Filing of Claims(Rule 86)



RULE 73VENUE AND PROCESS

VENUE INHABITANT OF PHILIPPINES (whether citizen or alien) – Court of province/city where he resides at the time of death. INHABITANT OF FOREIGN COUNTRY – RTC of any province wherein he had his estate.

Residence – means his personal, actual or physical habitation, his actual residence or place of abode. (Fule vs. CA, L-40502, Nov. 29, 1976)

Where estate of deceased persons settled. (Sec.1)

2 KINDS OF SETTLEMENTA. EXTRAJUDICIAL SETTLEMENT -

(Rule 74, Section 1)

B. JUDICIAL SETTLEMENT - Testate or Intestate Proceedings instituted in the country where decedent has his residence

EXTENT OF JURISDICTIONProbate courts are courts of LIMITED jurisdiction. It may only determine and rule upon issues relating to the settlement of the estate, namely:

1. administration of the estate;2. liquidation of the estate; and3. distribution of the estate.

GENERAL RULE: Probate court cannot determine issue of ownership. EXCEPTIONS: 1. Provisionally, ownership may be

determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action; or

2. When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced. (Bernardo vs. CA, L-18148, Feb. 28, 1963)

EXAMPLES OF OTHER QUESTIONS WHICH THE PROBATE COURT CAN DETERMINE

1. Who are the heirs of the decedent;

2. The recognition of a natural child;

3. The validity of disinheritance effected by the testator;

4. Status of a woman who claims to be the lawful wife of the decedent;

5. The validity of a waiver of hereditary rights;

6. The status of each heir; 7. Whether property in inventory is

conjugal or exclusive property of deceased spouse;

8. All other matters incidental or collateral to the settlement and distribution of the estate.

PRINCIPLE OF EXCLUSIONARY RULE The court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts.

The probate court acquires jurisdiction from the moment the petition for the settlement is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval vs. Santiago, 88 PHIL 784); or filing another petition for settlement in a proper court of concurrent venue (De Boria vs. Tan, 77 Phil 872).

EXCEPTION:Estoppel by LACHES

Jurisdiction under Rule 73 Sec. 1 does NOT relate to jurisdiction per se but to venue. Hence, institution in the court where the decedent is neither an




inhabitant or have his estate may be waived. (Uriarte vs. CFI, L-21938-39, May 29, 1970)

Improper venue must be seasonably raised. (Eusebio v. Eusebio, 100 PHIL 593)REMEDY IF THE VENUE IS IMPROPERLY LAIDORDINARY APPEAL not certiorari or mandamus UNLESS want of jurisdiction appears on the record of the case.

RTC may issue writs and processes. (Sec.3, Rule 73)

GENERAL RULE: Probate court cannot issue writs of execution.Reason: its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process.EXCEPTIONS: EXCLUSIVE (expressio unius est exclusio alterius)

1. To satisfy the contributive share of the devisees, legates and heirs when the latter had entered prior possession over the estate. (Sec. 6, Rule 88)2. To enforce payment of the expenses of partition. (Sec. 3, Rule 90)

Where the estate settled upon dissolution of marriage (Sec.2)Upon the death of either the husband or the wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. If both have died, liquidation may be made in the testate or intestate proceedings of either.

RULE 74SUMMARY SETTLEMENT OF ESTATE

GENERAL RULE: If a person dies, his estate is submitted to a judicial settlement proceeding. EXCEPTION: The heirs may resort to:

1. Extrajudicial settlement of estate; or

2. Summary settlement of estate – must be conducted in accordance with regular procedure NOT under rules of summary procedure. (Regalado)

In these exceptions an administrator or executor need not be appointed.EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS (Sec.1)Requisites: A. Substantive

1. The decedent left - a) no will

b) no debts2. The heirs are all of age or the

minors are represented by their judicial or legal representatives duly authorized for the purpose

B. Procedural1. Division of estate must be in a PUBLIC INSTRUMENT or by AFFIDAVIT of ADJUDICATION in the case of a sole heir.2. Filed with proper Registry of Deeds3. Publication of notice of the fact of extrajudicial settlement once a week for 3 CONSECUTIVE WKS. 4. Bond filed equivalent to the value of PERSONAL property.

The bond is required only when personalty is involved or the real estate is subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond.

The bond is the value of the personal property certified by the parties under oath and CONDITIONED upon payment of just claims filed under Sec. 4, Rule 74.

BOND1. equivalent to the value of

personal property2. certified by parties under oath

by an affidavit




3. conditioned upon the payment of just claims filed under Sec. 4.

If they cannot agree to the manner of partition among themselves, they may resort to Ordinary Action of Partition. If despite the institution of such action they subsequently arrived at an agreement, they may enter into the corresponding stipulation and register the same with the Register of Deeds. (Regalado)

Is a Public Instrument necessary for the validity of an extrajudicial settlement? NO. Private instrument/document or Oral agreement of partition is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in public instrument is NOT constitutive of the validity but is merely evidentiary in nature. (Hernandez vs Andal)

However, Reformation may be compelled. (Regalado)

EXTRAJUDICIAL SETTLEMENT

JUDICIAL SETLLEMENT

No court intervention requires summary judicial adjudication

value of the estate immaterial

gross estate must not exceed P10T

allowed only in intestate succession

allowed in both testate and intestate

there must be no outstanding debts of

the estate at the time of settlement

available even if there are debts; it is the court which will make provision for

its paymentresorted at the instance and by

agreement of ALL heirs

May be instituted by ANY INTERESTED

PARTY even a creditor of the

estate without the consent of all heirs

amount of bond is equal to the value of

personal property

bond to be determined by the

court

While the Rules provide that the decedent must not have left any debts, it is sufficient if any debts he may have

left have been paid at the time of the extrajudicial settlement is entered into. (Guico vs. Bautista, 110 Phil 584)

DISPUTABLE PRESUMPTION THAT DECEDENT LEFT NO DEBTSIf no creditor files a petition for letters of administration within 2 years after the death of the decedent. SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE (Sec.2)GROSS VALUE of the estate must NOT EXCEED P10, 000.

This is jurisdictional. (Del Rosario vs. Conanan, L-37903, March 30, 1977)

IMPORTANT REQUIREMENTS1. Application must contain

allegation of gross value of estate.

2. Date for hearing a) shall be set by court not less

than 1 MONTH nor more than 3MONTHS from date of last publication of notice;

b) published, ONCE A WEEK FOR 3 CONSECUTIVE WKS in a newspaper of general circulation.

3. Notice shall be served upon such interested persons as the court may direct.

4. Bond - amount fixed by the court (not value of personal prop) conditioned upon payment of just claims under Sec.4.

LIABILITY OF DISTRIBUTEES AND ESTATE (Sec.4)

REQUISITES OF TWO-YEAR PERIOD LIEN1. persons have taken part or have notice of extrajudicial partition2. compliance with the provisions of Sec.1, Rule 74 (Sampilo vs. CA)

BASIS TO COMPEL SETTLEMENT OF THE ESTATE

1. undue deprivation of lawful participation in the estate.




2. existence of debts against the estate or undue deprivation of lawful participation payable in money.

REMEDIES1. WITHIN 2 YRS. - claim against

the bond or the real estate.2. Action to Annul a deed of

extrajudicial settlement on the ground of FRAUD – within 4 YEARS from the discovery of fraud.

3. Reconveyance of real property.

Where the estate has been summarily settled, the unpaid creditor may, within 2 years, file a motion in the court wherein such summary settlement was had, for the payment of his credit.

EXCEPTION: If on the date of the expiration of the two-year period, the creditor or heir is -

a) A minor or incapacitated, or b) In prison or c) Outside the Philippines,

he may present his claim within one year after such disability is removed. (Sec. 5 Rule 75)

The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (LRC CIRCULAR 143)

Such lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established. (Rebong vs. Ibanez, 79 Phil 324)

RULE 75PRODUCTION OF WILL/ ALLOWANCE OF

WILL NECESSARY

Section 1. Allowance necessary, conclusive as to execution.

NATURE OF PROBATE PROCEEDINGS

1. IN REM -binding on the whole world.2. MANDATORY - no will shall pass either real or personal property unless it is proved and allowed in the proper court. HOWEVER, it has been held in one case that a will may be sustained on the basis of Article 1080 of the Civil Code which reads as follows: “If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir.” (Mang-Oy vs. CA, 144 SCRA 33).3. IMPRESCRIPTIBLE – because of the public policy to obey the will of the testator.4. The DOCTRINE OF ESTOPPEL does not apply. Reason: presentation and probate of will is required by public policy and involves public interest. (Fernandez vs. Dimagiba)

RULE 76ALLOWANCE OR DISALLOWANCE OF

WILL

Probate or Allowance of Wills - act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law. Who may petition for allowance of will? (Sec.1)

1. any creditor - as preparatory step for filing of his claim therein (Regalado, p.26)

2. devisee or legatee named in the will

3. person interested in the will (e.i., heirs)

4. testator himself – during his lifetime the possession of the will is not necessary




Who may be a party in probate?Generally, any person having a direct and material interest in the will or estate.

CONTENTS OF THE PETITION (Sec.2)1. the jurisdictional facts – death

of the testator and his residence at the time of death or the province where estate was left by the decedent who is a non-resident;

2. the names, ages, and residences of the heirs, legatees, devisees of the testator or decedent;

3. the probable value and character of the property of the estate;

4. the name of the person for whom the letters are prayed;

5. the name of the person having custody of the will if has not been delivered to the court.

But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

EFFECT OF THE PROBATE OF A WILL It is conclusive as to the EXECUTION and the VALIDITY of the will (even against the state). Thus, a criminal case against the forger may not lie after the will has been probated.

ISSUE IN THE PROBATE OF A WILL GENERAL RULE:Only determination of the extrinsic validity not the intrinsic validity or testamentary dispositions.EXCEPTION: Where the entire or all testamentary dispositions are void and where the defect is apparent on its face. (Acain vs. IAC GR No. 72706, Oct. 27, 1987; Nepumuceno vs. CA, 139 SCRA 206)

EXTRINSIC VALIDITY - means due execution of the will.

MEANING AND EXTENT DUE EXECUTIONDue execution means that:

1. the testator is of sound and disposing mind when he executed the will;

2. the will was NOT executed under duress, fraud or other circumstances that vitiates consent;

3. the required formalities have been strictly complied with; and

4. the will is genuine and not a forgery.

COURT APPOINTS TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED (Sec.3)

When does court acquire jurisdiction over interested persons and res?Upon PUBLICATION for 3 WKS successively of the order setting the case for hearing AND sending NOTICES to all persons interested. NOTICES MUST BE GIVEN TO:

1. designated or known heirs, legatees and devisees; and

2. executor and co-executor if not the petitioner.

MODES OF NOTIFYINGBy mail: 20 days before hearingPersonal notice: 10 days before hearing

3 weeks successively is not strictly 21 days.

ANTE MORTEMIf petition for probate is on testator’s own initiative during his lifetime -

1. no publication is necessary; and2. notice shall be made only to the

compulsory heirs.

PROOF OF HEARING (Sec.5)At the hearing, compliance of Publication and Notice must first be shown before introduction of testimony in support of the will.

EVIDENCE in support of will:1. UNCONTESTED WILL (Sec.5)

a) Notarial Wills - testimony of at least 1 of the subscribing witnesses is allowed.




- if all subscribing witnesses reside outside the province – deposition is allowed.

- if subscribing witnesses reside is dead, insane, or none reside in the Philippines – Court may admit testimony of the witnesses to prove the sanity of the testator, and the due execution of the will, and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them.

b) Holographic Wills - the testimony of 1 witness who knows the handwriting and signature of the testator. In the absence thereof, testimony of an expert witness.

2. CONTESTED (Sec.11)a) Notarial Wills - ALL subscribing

witnesses AND notary public.

HOWEVER, if any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) of doubtful credibility, the will may 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.

b) Holographic Wills - 3 witnesses who knows the handwriting of testator. In the absence thereof, testimony of an expert witness may be resorted to.

HOWEVER, in Codoy vs. Calugay, GR NO. 123486, Aug. 12, 1999, the SC ruled that if the holographic will is contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for its allowance.

GENERAL RULE: Holographic will if destroyed CANNOT be probated.EXCEPTION: If there exists a Photostat or Xerox copy thereof. (Gan vs. Yap, 104 Phil 509)

Proof of lost or destroyed will (Sec.6)Facts which should be proved in order that a lost or destroyed will may be allowed:

1. due execution and validity of the will;

2. will was in existence when testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and

3. the provisions of the will are clearly established by at least two credible witnesses.

RULE 77ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION

OF ESTATE THEREUNDER

A will allowed or probated in a foreign country, must be RE-PROBATED in the Philippines. If the decedent owns properties in different countries, separate administration proceedings must be had in said countries.

TWO TYPES OF ESTATE PROCEEDINGS:1. Domicilliary administration -

the proceeding instituted in last residence of the decedent.

2. Ancillary administration - the administration proceedings where he left his estate.

REQUISITES OF ANCILLARY ADMINISTRATION (Sec.2)

1. there must be a will (inferred from the wordings of Rule 77);2. filing of:

a) copy of the will executed in foreign country;




b) order or decree of foreign court allowing such will; andc) authentication of requisites a and b above;

3. notice of time and place of hearing;4. hearing; and5. certificate of allowance.

Can a will executed and proved in a foreign country be allowed in the Philippines under Rule 77?YES. Provided that the following must be proved:

1. foreign court must have jurisdiction over the proceeding;

2. domicile of testator/decedent in the foreign country and not in the Philippines;

3. that the will has been admitted to probate in such country;

4. it was made with the formalities prescribed by the law of the place in which the decedent resides, or according to the formalities observed in his country, or in conformity with the formalities prescribed by our Civil Code; and

5. due execution of the will in accordance with the foreign laws. (Regalado)

EFFECTS1. the will shall have the same

effect as if originally proved and allowed in court of the Philippines.

2. letters testamentary or administration with a will annexed shall extend to all estates of the Philippines.

3. Residue of estate after payment of debts, etc. shall be disposed of as provided by law in cases of estates in Philippines belonging to persons who are inhabitants of another state or country.

RULE 78

LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM

ISSUED

PERSONS WHO CAN ADMINISTER THE ESTATE

1. Executor;2. Administrator, regular or special

(Rule 80); and3. Administrator with a will

annexed (Rule 79, Section 1).

Executor - The one named by the testator in his will for the administration of his property after his death.

Administrator - One appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate or such testate estate, where the testator did not name any executor or that the executor so named refuses to accept the trust, or fails to file a bond, or is otherwise incompetent.

Administrator with a will annexed - one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

WHO MAY SERVE AS EXECUTOR/ ADMINISTRATOR?Any COMPETENT person may serve as executor or administrator.

WHO ARE INCOMPETENT TO SERVE AS EXECUTOR/ADMINISTRATOR?

1. a minor2. a non-resident3. one who in the opinion of the

court is unfit to exercise the duties of the trust by reason of:a) drunkennessb) improvidencec) want of understanding and

integrityd) conviction for an offense

involving moral turpitude




Executor of executor shall not, as such, administer the estate of the first testator. (Sec. 2)

Letters testamentary - Authority issued to an executor named in the will to administer the estate.

Letters of administration – Authority issued by the court to a COMPETENT person to administer the estate of the deceased who died intestate.

TO WHOM LETTERS OF ADMINISTRATION GRANTED

Order Of Preference1. The surviving husband or wife 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, if competent and willing to serve. (SURVIVING SPOUSE OR NOMINEE)

2. If the surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, or if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration, ANY one or more of the PRINCIPAL CREDITORS, if competent and willing to serve.

3. If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (STRANGER)

The Order of appointment of Regular administrator is final and appealable.

BASIS FOR THE PREFERENTIAL RIGHTThe underlying assumption is that those who will reap the benefits of a 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 correctly.

RULE 79OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION AND CONTENTS FOR LETTERS OF

ADMINISTRATION

What is the MAIN ISSUE in an administration proceeding?Who is the person rightfully entitled to administration. Who may oppose the issuance of letters? GENERAL RULE: Any person interested in the will. (Section 1)EXCEPTION: Even where a person who had filed a petition for the allowance of the will of the deceased person had no right to do so in view of his lack of interest in the estate, nevertheless, where the interested persons did not object to its application, the defect in the petition would be deemed cured. The filing of the petition may be considered as having been ratified by the interested parties. (Eusebio vs. Valmores 97 PHIL 163)

Petition for Opposition may at the same time be filed for Letters of Administration with the will annexed.

Contents of a petition for letters of administration: (Sec.2)

a) jurisdictional facts; b) name, age, residence of heirs

and creditors;c) probable value and character of

the estate; andd) name of the person for whom

letters is prayed for.

No defect in the petition shall render void the issuance of the letters of administration.

Grounds for Opposition:1. In Letters Testamentary




a) incompetence2. In Letters of Administration

a) incompetence; b) preferential right of the heir under Sec. 6, Rule 78.

Publication for 3 Weeks and notice to heirs, creditors and other persons believed to have an interest in the estate is required before hearing.

Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court. (Sec. 6, Rule 79)

RULE 80SPECIAL ADMINISTRATOR

When may a probate court appoint a special administrator?

1. Delay in granting of letters including appeal in the probate of the will.2. Executor is a claimant of the estate he represents. - in this second instance, the

administrator shall have the same powers as that of a general administrator.

ORDER OF APPOINTMENT DISCRETIONARYThe preference accorded by Sec. 6 of Rule 78 of the Rules of Court to surviving spouse refers to the appointment of a regular administrator, NOT to that of special administrator, and that the order appointing the later lies within the discretion of the probate court, and is not appealable. (Pijuan vs. De Gurrea, 124 Phil. 1527)

POWERS AND DUTIES1. Possession and charge of the goods, chattels, rights, credits, and estate of the deceased;2. Commence and maintain suit for the estate;3. Sell ONLY

a) perishable property; and b) those ordered by the court;

4. Pay debts ONLY as may be ordered by the court.

DURATION OF POWER OF SPECIAL ADMINISTRATORUntil questions causing the delay is decided and the regular administrator is appointed.

When does the power of a special administrator cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator.

Is appointment of special administrator appealable?NO, the same is INTERLOCUTORY. However, appointment of a REGULAR ADMINISTRATOR is appealable because it is a final order.

It is possible for the executor or administrator whose appointment is challenged by appeal to be appointed also as the special administrator pending such appeal. There is no harm in appointing the same person as special administrator because there is a vast of difference between the powers and duties of the two positions.

RULE 81BONDS OF EXECUTOR AND

ADMINISTRATOR

BOND OF EXECUTOR/ADMINISTRATOR(Sec.1)

When filed?Before an executor or administrator enters upon execution of his trustAmount? Fixed by the court

CONDITIONS1. Make an INVENTORY of property

which came to his knowledge and possession within 3 MONTHS.




2. ADMINISTER the estate and from the proceeds pay all debts and charges.

3. Render an ACCOUNT within ONE YEAR

4. Perform all orders of the court.

ADMINISTRATOR’S BOND — STATUTORY BONDConditions prescribed by statute forms part of bond agreement.

Terms and effectivity of bond does not depend on payment of premium and does not expire until the administration is closed. As long as the probate court

retains jurisdiction of the estate, the bond contemplates a continuing liability. (Luzon Surety vs. Quebrar, 127 SCRA 295).

BOND OF SPECIAL ADMINISTRATOR (Sec.4) Conditions

1. make inventory.2. render accounting when required by court. 3. deliver the same to person appointed executor or administrator or other authorized persons.

The bond is effective as long as the court has jurisdiction over the proceedings.

RULE 82REVOCATION OF ADMINISTRATION,

DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

If after letters of administration have been granted on the estate of the decedent as if he had died intestate, his will is allowed and proved by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the

court, and render his account within such time as the court may direct.

The discovery of a will does NOT ipso facto nullify the letters of administration already issued until the will has been proved and allowed pursuant to Rule 82 Sec. 1. (De Parreno vs. Aranzanso, GR No. L-27657, Aug. 30, 1982)

RESIGNATION OR REMOVAL OF EXECUTOR/ ADMINISTRATOR (SEC.2)Grounds

1. neglect to render accounts; (w/in 1 YEAR or when the court directs);

2. neglect to settle estate according to these rules;

3. neglect to perform an order or judgment of the court or a duty expressly provided by these rules;

4. absconding; or5. insanity or incapability or

unsuitability to discharge the trust. (Sec. 2)

These grounds are EXCLUSIVE.

Lawful acts of an administrator or executor before the revocation, resignation, or removal are valid unless proven otherwise. (Sec.3)

POWERS OF NEW EXECUTOR OR ADMINISTRATOR (Sec. 4)

1. collect and settle the estate not administered;

2. prosecute or defend actions commenced by or against the former executor or administrator; and

3. recover execution on judgments in the name of former executor or administrator.

RULE 83INVENTORY AND APPRAISAL PROVISION

FOR SUPPORT OF FAMILY

Inventory and appraisal must be made within 3 MONTHS from the grant of letters testamentary or of administration. (Sec.1)




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 of the issue of ownership.

ALLOWANCE TO WIDOW AND FAMILY (Sec.3)Allowance - monetary advances subject to collation and deductible from their share in the estate of the decedent.

Who are entitled to allowance during proceedings?1. Legitimate surviving spouse

(Nepomuceno vs CA); and 2. Children of the decedent.

According to Art. 188 of the Civil Code, the children need not be minors or incapacitated to be entitled to allowance. (Santero vs CFI of Cavite, GR No. 61700-03, Sept. 24, 1987)

Grandchildren are NOT entitled to allowance under Rule 83. (Heirs of Ruiz vs CA)

When liabilities exceed the asset of the estate, his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support, having the character of an advance payment to be deducted from the respective share of each heir during distribution. (Wagner vs. Moore)

RULE 84GENERAL POWERS OF EXECUTORS AND

ADMINISTRATORS POWERS OF EXECUTOR/ ADMINISTRATOR OF THE ESTATE

1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner;

2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner;

3. To make improvements on the properties under administration with the necessary court approval except for necessary repairs;

4. To possess and manage the estate when necessary:a) for the payment of debts;

andb) for payment of expenses of

administration;5. To maintain in tenantable

repairs houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court.

SOME RESTRICTIONS ON POWER OF ADMINISTRATOR/EXECUTOR

1. Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration.

2. Cannot borrow money without authority of the court.

3. Cannot speculate with funds under administration.

4. Cannot lease the property for more than one year.

5. Cannot continue the business of the deceased unless authorized by the court.

6. Cannot profit by the increase or decrease in the value of the property under administration.

RULE 85ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

GENERAL RULE: The executor or administrator is accountable for the whole estate of the deceased.

EXCEPTION: He is not accountable for properties which never came to his possession.




EXCEPTION TO THE EXCEPTION: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge.

Administrator or executor shall not profit by the increase of the estate nor be liable for any decrease which the estate, without his fault, might have sustained.

EXPENSES OF ADMINISTRATION: those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits.

When shall executor or administrator render an account? (Sec.8)RULE: Within one year from the time of receiving letters testamentary or letters of administration.EXCEPTION: An extension of time is allowed for presenting claims against or paying the debts of the estate for disposing of the estate but even in such cases, the administration should be terminated in not more than two-years and a half.

RULE 86CLAIMS AGAINST ESTATE

Claim - any debt or pecuniary demand against the decedent’s estate.

When may a court issue notices to creditors to file their claims? Immediately issued after granting letters testamentary or of administration.

PURPOSE: for the speedy settlement of the affairs of the deceased person and early delivery of the property of the estate into the hands of the persons entitled to receive it.

Claims arising AFTER his death cannot be presented except for:

a) funeral expenses; and b) expenses of the last sickness of

the decedent.

Claims for taxes (inheritance and estate) due and assessed after the death of the decedent need not be presented in the form of a claim. The court in the exercise of its administrative control over the executor or administrator may direct the latter to pay such taxes. And the heirs, even after distribution are liable for such taxes.

STATUTE OF NON-CLAIMS (Sec.2)

When should the claims be filed?GENERAL RULE: Within in the time fixed in the notice which shall not more than 12 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwise, they are BARRED FOREVER.Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of non-claims must still be complied with; otherwise the claim may also be barred.

EXCEPTION: Belated Claims.

Belated Claims are claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at ANY TIME BEFORE an order of distribution is entered, the court MAY, for cause shown and on such terms as are equitable, allow such claim to be filed within a time NOT EXCEEDING 1 MONTH from the order allowing belated claims.

Statute of Non-Claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned. However, BOTH statute of Non-Claims and Statute of Limitations MUST CONCUR in order for a creditor to collect.

Claims which are not filed within the Statute of Non-Claims are barred forever (Sec.5)




Claims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate. (Olave vs. Carlos, 208 Phil 678)

Claims which should be filed under the Statute of Non-claims?

1. Money claims, debts incurred by deceased during his lifetime arising from contract

2. express or implied3. due or not due4. absolute or contingent5. Claims for funeral expenses and

for the last illness of the decedent.

6. Judgment for money against decedent.

Contingent Claim – conditional claim or claim that are subject to the happening of a future uncertain event.

Claims not yet due or contingent may be approved at their present value.

HOWEVER, a creditor barred by the Statute of Non-claims may file a claim as a COUNTERCLAIM in any suit that the executor or administrator may bring against such creditor.

SOLIDARY OBLIGATION OF DECEDENT (Sec.6)Claim should be filed against decedent as if he were the only debtor without prejudice on the part of the estate to recover contribution from the other debtor. (Jaucian vs Quero, 38 Phil 707l)

Joint obligation of decedentThe claim must be confined to the portion belonging to the decedent.

MORTGAGE DEBT DUE FROM ESTATE (Sec.7)

ALTERNATIVE REMEDIES Of The Creditor Holding A Claim Secured By A Mortgage Or Other Collateral Security

1. ABANDON security and prosecute his claim against the estate and share in the same general

distribution of the assets of the estate;

2. FORECLOSE his mortgage or realize upon his security by action in court making executor or administrator a party defendant and if there is judgment for DEFICIENCY, he may file a claim (contingent) against the estate within the statute of non-claims.

Agency coupled with an interest

The power to foreclose a mortgage is not an ordinary agency that contemplates exclusively the representation of the principal by the agent but is primarily an authority conferred upon the mortgagee for latter’s own protection. That power survives the death of the mortgagor. (Bicol Savings and Loan Association vs. CA)

3. RELY SOLELY ON HIS MORTGAGE and foreclose the name at anytime within the period of the statute of limitation but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate;

These remedies are alternative, the availment of one bars the availment of other remedies.

JUDGMENT ALLOWING CLAIM (Sec.13)Judgment against executor and administrator shall not create any lien upon the property of the estate or does not constitute a specific lien which may be registered on such property.

Judgment of a probate court approving or disapproving a claim is appealable.

The mode of appeal is record on appeal and must be filed within 30 DAYS from notice of judgment.

RULE 87




ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Actions which may or may not be brought against executor and administrator (Sec.1)Independent and separate of the probate proceeding:

1. recovery of real or personal property or any interest therein from the estate

2. enforcement of a lien thereon3. action to recover damages for

any injury to person or property, real or personal (tortuous acts)

These are actions that survive the death of the decedent.

An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment. (Romualdez vs. Tiglao, 105 SCRA 762).

Heir may not sue until share assigned (Sec.3)Before distribution is made or before any residue is known, the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent.

Proceedings when property concealed, embezzled or fraudulently conveyed (Sec.6)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 having concealed, embezzled or conveyed away any properties of the deceased.

GENERAL RULE: The probate court has 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 in the inventory; or

2. Submission to the court’s jurisdiction (Bernardo vs. CA, GR No. 82483, Sept. 26, 1990)

Embezzlement before letters issued (Sec.8)The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of the estate.

Property fraudulently conveyed by the deceased may be recovered. When executed or administered must bring action (Sec.9)This provision applies when there is a deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administrationadministration for it is under this circumstance that there may be conveyances made by the deceased with intent to defraud the creditor.

REQUISITES BEFORE ACTION MAY BE FILED

1. deficiency in assets2. the conveyance made is void (when

there are badges of fraud)3. subject of conveyance is liable for

attachment in lifetime of decedent.

When creditor may bring action. Lien for costs (Sec.10)When a grantee in a fraudulent conveyance is OTHER THAN THE EXECUTOR OR ADMINISTRATOR, a creditor may commence and prosecute the action if the following requisites are present:

1. That the executor or administrator has shown to have no desire to file the action or failed to institute the same within the reasonable time;

2. Leave is granted by court to creditor to file the action;

3. Bond is filed by creditor as prescribed in this provision; and

4. Action by creditor is in the name of the executor or administrator.




These requisites need not be complied with if the grantee of the fraudulent conveyance is the executor or administrator himself, in which event the action should be in the name of all creditors.

RULE 88

Debts paid in full if estate sufficient (Sec.1)If estate is insolvent, as in liabilities are more than the assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of the Civil Code must apply. Use rule on preference of creditors If it is sufficient to satisfy claims of a class.

When the will provides for payment of debts, Section 2 must be followed. Although testator acknowledged a specific debt on his will, the creditor must still file his claim in the testate or intestate proceedings, otherwise his claim will be barred.

Estate to be retained to meet contingent claims (Sec.4)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.

REQUISITES1. contingent claim is duly filed;2. court is satisfied that the claim

is valid; and3. The claim has become absolute.

Is execution a proper remedy to satisfy an approved claim?NO, because:

1. Payment approving a claim does not create a lien upon a property of the estate. 2. Special procedure is for the court to order the sale to satisfy the claim.

How contingent claim becoming absolute in two years allowed and paid (Sec.5)If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two years from the time limited for other creditors to present their claims. The residual funds within the estate, although already in the possession of the universal heirs, are funds of the estate. The Court has jurisdiction over them and it could compel the heirs to deliver to the administrator of the estate the necessary portion of such funds for the payment of any claims against the estate. (In re Testate Estate of Margarita David, Sison vs. Teodoro, 98 Phil 680)

If the contingent claim matures after the expiration of the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them. (Jaucian vs. Querol, supra)

It has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtor’s assets is under Sec. 5, Rule 88 of the Rules of Court. The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees. (De Bautista vs. De Guzman, 125 SCRA 682)

Estate of Insolvent nonresident, how disposed (Sec.9)In the administration taken in the Philippines of the estate of the INSOLVENT his estate in the Philippines shall be disposed of that his creditors in and outside in the Philippines in proportion to their respective credits.

When and how claim proved outside the Philippines against insolvent resident’s estate paid (Sec.10)Claims proven outside the Philippines where the executor had knowledge and




opportunity to contest its allowance therein may be added to the list of claims in the Philippines against the estate of an INSOLVENT RESIDENT and the estate will be distributed equally among those creditors.

However the benefit of Sections 9 and 10 cannot be extended to the creditors of foreign country where the property of the deceased therein is not equally apportioned to creditors residing in the Philippines and other creditors.

Time for paying Debts and Legacies (Sec.15)Need not exceed 1 year in the first instance. But court extend on application of executor or administrator and after hearing and notice thereof.

Extension must not exceed six months for single extension. Whole period allowed to the original executor or administrator shall not exceed 2 years (section 15) successor of dead executor or administrator may be given an extension not to exceed 6 months.

RULE 89SALES, MORTGAGE AND OTHER

ENCUMBRANCES OF THE PROPERTY OF THE DECEASED

Order of sale of personalty (Sec.1)The court may order the whole or part of the personal estate to be sold if necessary:

1. to pay debts and expense of administration;

2. to pay legacies; or3. to cover expenses for the

preservation of the estate.

When court may authorize sale, mortgage or other encumbrances of realty to pay debts and legacies though personality not exhausted? (Sec. 2)

1. If personal estate is NOT sufficient to pay debts, expenses of administration and legacies;

2. If sale of personal estate may injure the business or interests of those interested in the estate;

3. If testator has NOT made sufficient provision for payment of such debts, expenses and legacies;

4. If deceased was in his lifetime under contract, binding in law to deed real property to beneficiary; (Section 8)

5. If the deceased during his lifetime held real property in trust for another person. (Section 9)

REQUISITESa) application of Executor/Administrator;b) written notice to person interested; andc) hearing

Assets in the hands of executor/administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends.

Without notice and hearing, the sale, mortgage or encumbrance is void. Notice is mandatory. Noncompliance therewith under the sale is null and void. Reason: The reason behind this requirement is that the heirs are the presumptive owner. Since they succeed to all the rights and obligation of the deceased from the moment of the latter’s death, they are the person directly affected by the sale or mortgage and therefore cannot be deprived of the property, except in the manner provided by law. (Maneclang vs. Baun, 208 SCRA 179)

May the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries? (Sec. 5)When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses.




Application for authority to sell, mortgage or encumber property of the estate may be denied by the court if:

1. the disposition is not for any of the reasons specified by the rules; OR2. under Section 3 Rule 89, any person interested in the estate gives a bond conditioned to pay the debts, expenses of administration and legacies.

RULE 90DISTRIBUTION AND PARTITION OF THE

ESTATE

Liquidation means the determination of all assets of the estate and payment of all debts and expenses.

When order for distribution of residue made (Sec.1)

RULE: ORDER OF DISTRIBUTION shall be made AFTER payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax is effected.

In these proceedings, the court shall: 1. collate;2. determine heirs; and3. determine the share of each heir.

A separate action for the declaration of heirs is not necessary.

When is title vested? From FINALITY of order of distribution.

Only after partition is approved and not before, the court may order the delivery to the heirs of their respective shares except when the heir file a bond conditioned to pay the debts.

An order which determines the distributive shares of heirs is appealable. If not appealed, it becomes final.

The probate court lose jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. (Timbol vs. Cano, 1 SCRA 1271)

CONDITIONS PRECEDENT to be complied with for the issuance of an order of distribution

1. 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 fulfilled.

PROHIBITION AGAINST INTERFERENCE BY OTHER COURTS

As long as the order of distribution of the estate has not been complied with, the probate probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed. The better practice, however, for the heir who has not received his share, is to demand his share through proper motion in the same probate or administrative proceedings, or for the reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Timbol vs. Cano, supra).

RULE 91ESCHEATS

3 INSTANCES of ESCHEATS1. When a person dies intestate

leaving no heir but leaving




property in the Philippines (Section 1)

2. REVERSION PROCEEDINGS – Sale in violation of the Constitutional provision

3. Unclaimed Balance Act under Banking Laws

What is the basis of the state’s right to receive property in escheat? Order of succession under the Civil Code, the STATE is the last heir of the decedent.

Who files? Solicitor General or his representative in behalf of the Philippines.

Where to file? RTC of last residence or of location of his estate in the Philippines if he is a non-resident.

If petition is sufficient in FORM and SUBSTANCE the court shall:

1. Make an ORDER OF HEARING – hearing shall not be more than 6 MONTHS AFTER ENTRY OF ORDER.2. Direct publication of the copy of order – at least once a week for 6 CONSECUTIVE WEEKS.

REQUISITES1. publication of the order2. person died intestate 3. he is seized of real/personal

property in the Philippines4. he left no heir or person entitled

to such property5. there is no sufficient cause to

the contrary

The court, at the instance of an interested party, or on its own motion, may order the establishment of a PERMANENT TRUST, so that only the income from the property shall be used.

CLAIM BY PERSONS ENTITLED TO THE ESTATE (Sec. 4)Who?

By devisee, legatee, heir, widow/er, or other person entitled thereto)When to file?

- Within 5 YEARS FROM DATE OF JUDGEMENT otherwise forever barred.

OTHER ACTIONS FOR ESCHEATS (Sec. 5)- actions for reversion of property alienated in violation of Constitution or any statute.- These shall be governed by Rule 91. HOWEVER, the action must be instituted in the province where the land lies in whole or in part.

Period: Within 5 years from the date of judgment; (under ART. 1014 of the Civil Code, the 5-year period is reckoned from the date the property was delivered to the State and further provides that if the property had been sold, the municipality or city shall be accountable only for such part of the proceeds as may not have been lawfully spent.)By whom: person of interest

TO WHOM WILL THE PROPERTY ESCHEATED BE ASSIGNED: (Sec. 3)

1. if personal property, in the municipality or city where he last resided.

2. if real property, where the property is situated.

3. if deceased never resided in the Philippines, where the property may be found.

Can court convert escheat proceedings into ordinary special proceedings or vice-versa? NO. 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.

RULE 92GUARDIANSHIP




Guardianship of minors is now governed by the Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) which took effect on May 1, 2003. While guardianship of incompetents is still governed by the provisions of the Rules of Court on Guardianship (Rule 92 to Rule 97).

MINOR INCOMPETENT

1. any relative; or2. other person on

behalf of a minor; or

3. the minor himself if 14 years of age or over; or

4. the Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who needs to be hospitalized. (Sec. 2 AM 03-02-05-SC)

5. any one interested in the estate of a non-resident incompetent (Sec.12)

1. any relative;2. friend; or3. other person on

behalf of the resident incompe-tent who has no parents or lawful guardian; or

4. the Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper. (Sec. 1)

5. any one interested in the estate of a non-resident incompetent (Sec. 6)

Jurisdiction: Incompetents – RTC of his residence or where his property is located in case of non-residents (Sec. 1) Minor – Family Court of his residence or where his property is located in case of non-resident (Sec. 3, AM 03-02-08)

KINDS OF GUARDIANSA. According to scope:

1. General - over the person of theward or over his property

2. Limited - over the property only

B. According to constitution:1. general guardian2. legal guardian

guardian ad litem

INCOMPETENT includes: (Sec. 2)1. those suffering from penalty of

civil interdiction2. hospitalized lepers3. prodigals4. deaf and dumb who are unable

to read and write 5. those of unsound mind though

they have lucid intervals6. persons not of unsound mind but

by reason of age, disease, weak mind and other similar causes cannot take care of themselves or manage their property.

RULE 93APPOINTMENT OF GUARDIANS

Who may petition for appointment of guardian?

The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship.

Contents of Petition

MINOR INCOMPETENT

a) the jurisdictional facts;

b) the name, age and residence of the prospective ward;

c) the ground rendering the appointment necessary or convenient;

d) the death of

a) the jurisdictional facts;

b) the minority or incompetency rendering the appointment necessary or convenient;

c) the probable value and character of his estate;

d) the names,




the parents of the minor or the termination, deprivation or suspension of their parental authority;

e) the remarriage of the minor’s surviving parent;

f) the names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody;

g) the probable value, character and location of the property of the minor; and

h) the name, age and residence of the person for whom letters of guardianship are prayed.

ages, and residences of the relatives of the minor or incompetent, and of the

e) persons having him in their care;

f) the name of the person for whom letters of guardianship. (Sec. 2 Rule 93)

The petition involving minors is required to be VERIFIED and accompanied by certification against FORUM SHOPPING while that involving incompetent must be verified only. HOWEVER, no defect in the petition or verification shall render void the issuance of letters of guardianship.

There is NO requirement for PUBLICATION, only notice EXCEPT in case of nonresident minor/incompetent.

HOWEVER, service of NOTICE upon minor if 14 years of age or over, or upon incompetent is mandatory and jurisdictional.

If the person is insane, service of notice upon the Director of Hospital where hospitalized is sufficient.

OPPOSITION TO PETITION (Sec. 4)Grounds1. majority of alleged minor2. competency of alleged

incompetent3. unsuitability of the persons for

whom letters are prayed

Procedure a. filing of petitionb. court shall set the case for hearingc. cause notices to be served to the persons mentioned in the petition, including minor, if 14 years and aboved. court shall receive evidence

e. declaration of the propriety of the petition

f. issue letters of guardianship

BONDS OF GUARDIANSBefore an appointed guardian enters upon the execution of his trust, he shall give a BOND (Sec. 1 Rule 94).

SELLING AND ENCUMBERING PROPERTY OF WARD:A. Grounds

1. when income of estate is insufficient to maintain ward and family or to maintain and educate ward when a minor; or

2. when it appears that it is for the benefit of the ward.

B. Requirements1. petition must be verified;2. notice must be given to the

next of kin; and3. hearing so that they may show

cause why petition should not be granted.

Notice to next of kin and interested persons is JURISDICTIONAL.

Next of kin - pertains to those relatives who are entitled to share in the estate of the ward under the Law on Intestate




succession including those who inherit per stirpes or by right of representation. Sale of the ward’s realty by the guardian without authority from the court is VOID. Under the law, a parent acting merely as legal administrator of the property of his/her children, does NOT have the power to dispose of, or alienate, the property of said minor without judicial approval (Lindain vs. CA, GR No. 95305, Aug. 20, 1992).

The Order of Sale must specify the grounds.

C. 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 1 year, the ward has sufficient income.

The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court.

GENERAL POWERS AND DUTIES OF GUARDIANS

1. have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be;

2. pay the debts of the ward;3. settle accounts, collect debts

and appear in actions for ward;4. manage the estate of the ward

frugally, and apply the proceeds to maintenance of the ward;

5. render verified inventory verified within 3 MONTHS after his appointment and annually thereafter upon application of interested persons; and

6. render to court for its approval an accounting of the property for 1 YEAR from his appointment & every year thereafter.

TERMINATION OF GUARDIANSHIP

Grounds for terminationMINOR INCOMPETENT

1. The ward has come of age; or

2. has died

1. competency of the ward has been judicially determined

2. guardianship is no longer necessary

B. Grounds for removal of a guardian:1. insanity;2. incapability or unsuitability to

discharge functions;3. wastage or mismanagement of

the property of the ward; and4. failure to render an account or

make a return within 30 days after it was due.

SALIENT FEATURES and SPECIAL RULES FOUND IN THE RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003)

Grounds for Petition (Sec. 4)1. Continued Absence, or Incapacity or Death of his parents; (AID)2. Suspension, Termination or Deprivation of parental authority; (STD)3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority;4. When the best interest of the minor so requires.

A. Qualifications of Guardians (Sec. 5)1. Moral character2. Physical, mental and psychological condition3. Financial status4. Relationship of trust with the minor5. Availability to exercise the powers and duties of a guardian for the full period of guardianship6. Lack of conflict of interest with the minor




7. Ability to manage the property of the minor.

B. Who may be appointed guardian of the person or property, or both, of a minor (Sec.6)In default of parents or a court appointed guardian, the court may the following observing as far as, practicable, the ORDER OF PREFERENCE:

1. the SURVIVING GRANDPARENT and in 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-one years of age, unless unfit or disqualified; and4. any OTHER PERSON, who in the sound discretion of the court would serve the best interests of the minor.

C. Case Study Report (Sec. 9)The court shall order a social worker to conduct a case study of the minor and all prospective guardians and submit report and recommendation to the court for its guidance before the scheduled hearing.

D. Bond of parents as guardians of property of minor (Sec. 16)If the market value of the property on the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides or, if

the child resides in a foreign country, in the Family court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.

REMOVAL OR RESIGNATION OF GUARDIAN (Sec. 24)No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same.

Grounds for termination of guardianship (Sec. 25).The court motu propio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has COME OF AGE or has DIED. The guardian shall notify the court of such fact within 10 days of its occurrence.

RULE 98TRUSTEES

Jurisdiction: RTC in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the RTC of the province in which the property, or some portion thereof, affected by the trust is situated.

A trustee is necessary to carry into effect:

a) A will where the testator omitted to appoint a trustee in the Philippines (Testamentary Trust); and

b) Other written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust (Contractual Trust).

No persons succeeding to a trust as executor or administrator of a formal




trustee shall be required to accept such trust.

TRUSTEE APPOINTED ABROAD (Sec. 4)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 land 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 still needed though trustor is alive.

BOND OF TRUSTEES (Sec. 5)Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust.

However, he may be exempted from bond when requested by:

a. testator;b. All persons beneficially interested in the trust.

However, the court may cancel such exemption anytime.

REMOVAL OR RESIGNATION OF THE TRUSTEE (Sec. 8)REQUISITES

1. Petition filed by parties beneficially interested;2. Notice to trustee; and3. Hearing.

Who may petition? Parties beneficially interested.

Grounds1. essential in the interest of petitioners2. insanity3. incapability of discharging trustee4. unsuitability

Rules on Sale and Encumbrance of Trust Estate shall conform as nearly as may be to the provisions on Sale and Encumbrance by Guardians.

ADOPTION AND CUSTODY OF MINORS

The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and the Intercountry Adoption Act of 1995

EXCEPT: Secs 6 & 7 of Rule 99

Effective August 22, 2002, there is a new Rule on Adoption.

NATURE AND CONCEPT OF ADOPTIONAdoption is a juridical act, a proceeding IN REM, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.Only an adoption made through the court, or in pursuance with the procedure laid down under Rule on Adoption is valid in this jurisdiction.

PURPOSE OF ADOPTIONThe promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective.

WHAT DOES THE COURT DETERMINE IN ADOPTION CASES

1. capacity of the adopters2. whether the adoption would be the best interest of the child

Adoption is strictly personal between the adopter and the adopted. (Teofico vs. Del Val)

RULES ON ADOPTION (Secs. 1-25)

DOMESTIC ADOPTION

WHO MAY ADOPT1. Any Filipino Citizen -

a) of legal age; b) in possession of full civil capacity

and legal rights; c) of good moral character; d) has not been convicted of any

crime involving moral turpitude; e) emotionally and psychologically

capable of caring for children; f) in a position to support and care

for his/her children in keeping




with the means of the family; and

g) at least 16 YEARS older than the adoptee.

2. Any alien possessing the same qualifications as above; provided:a) That his/her country has

diplomatic relations with the PHILIPPINES;

b) That he/she has been living in the Philippines for at least 3 CONTINUOUS YEARS prior to the filing of the application for adoption;

c) Maintains residence until the adoption decree is entered;

d) Certified to have legal capacity to adopt, by his/her country; and

e) That his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter.

3. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

The requirement of 16 YEARS difference between the adopter and the adoptee is NOT applicable if the adopter is:1. the biological parent of the adoptee2. the spouse of the adoptee’s parent

The requirement on residency and certification of alien’s qualification to adopt may be WAIVED for the following:

1. The adoptee is a former Filipino citizen who seeks to adopt a relative within the 4th

degree of consanguinity or affinity.2. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse.3. One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

WHO MAY BE ADOPTED1. 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 to that of legitimacy.4. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority.5. A child whose adoption has been previously rescinded.6. A child whose biological or adoptive parents have died.7. A child not otherwise disqualified by law or these rules.

GENERAL RULE: Husband and wife shall jointly adopt. EXCEPTIONS:

1. If one spouse seeks to adopt the legitimate son/daughter of the other.2. If one spouse seeks to adopt his/her own illegitimate son/daughter.3. If the spouses are legally separated from each other.

VENUE (Sec.6)Family Court where the prospective adoptive parents reside.

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.




PROCEDUREA. ORDER OF HEARING (Sec.12)

- must be published at least once a week for 3 CONSECUTIVE WKS.

- at the discretion of the court, copies of the order of hearing shall be furnished to the office of the Sol.Gen. through the provincial or city prosecutor, the DSWD and the biological parents of the adoptee, IF KNOWN.

- if a change in the name of the adoptee is prayed for in the petition, notice to the Sol. Gen. Shall be MANDATORY.

B. CHILD & HOME STUDY REPORTS (Sec.13)- social worker verifies with the

Civil Registry the real identity and the name of adoptee and the fact that he is legally available for adoption.

- social worker may make recommendations to the court if he finds some grounds to deny the petition.

C. HEARING (sec.14)- to be held within 6 MONTHS from

the date of issuance of the order EXCEPT: 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 in court.

D. SUPERVISED TRIAL CUSTODY (STC) (Sec.15)Before issuance of decree of adoption the court shall give the adopter trial custody of the adoptee for at least 6 MONTHS.Reason: So the parties will adjust psychologically and emotionally to each other and establish a bonding relationship.

Court may reduce or exempt parties from STC.

GENERAL RULE: Alien adopter must complete the 6 MONTHS STC.EXCEPTION: Same as Exemptions from requirements of residency and certification.

E. DECREE OF ADOPTION If issued, this will take effect as of the date of filing of the original petition.

In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated.

An amended birth certificate shall be issued. The original birth certificate shall be stamped “cancelled” and shall be sealed in the Civil Registry records.

The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue.

EFFECTS OF ADOPTION1. 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 for all intents and purposes.4. adopters shall have reciprocal rights of succession without distinction from legitimate filiation.

All hearings and records are confidential. (Sec.18)

INTER COUNTRY ADOPTION (Secs. 26-32)

Where to file Petition?- A verified petition to adopt a Filipino

child may be filed by a foreign




national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found.

- It may be filed directly with the Inter-Country Adoption Board.

WHO MAY ADOPT1. any alien or Filipino citizen permanently residing abroad who is at least twenty-seven (27) years of age; 2. other requirements same as with RA 8552.

WHO MAY BE ADOPTEDOnly a legally free child may be the subject of inter-country adoption.

A child under the Inter-Country Adoption Act is defined as any person below fifteen (15) years of age.

RESCISSION AND REVOCATION OF ADOPTION

Under the Domestic Adoption Act of 1998, the ADOPTER CAN NO LONGER REVOKE the adoption, he can merely disinherit the adoptee in accordance with the provisions of the Civil Code.

In revocation, it relates only as to the date of the judgment. Hence in revocation, vested rights prior to rescission should be respected.

Who files?1. ADOPTEE

a) over 18 years of age or b) if minor with assistance of DSWD

2. GUARDIAN if over 18 but incapacitated or COUNSEL

Grounds1. repeated physical violence and verbal maltreatment by the adopter despite having undergone counseling;2. attempt on the life of the adopter;

3. sexual assault or violence; or4. abandonment or failure to comply with parental obligations.

VenueFAMILY COURT of the city or province where the adoptee resides. (Sec. 20)

Period within which to file VERIFIED petition (Sec. 21)5 YEARS from reaching age of majority or from recovery of incompetency.

Adverse party shall file his ANSWER within 15 days from receipt of order of court requiring him to answer. (Sec. 22)

EFFECTS OF JUDGMENT OF RESCISSION1. parental authority or legal custody will be restored2. reciprocal rights of adoptee and adopter will be extinguished3. vested rights required prior to judicial rescission shall be respected4. adoptee shall use the name stated in his original borth or foundling certificate5. civil registrar will reinstate his original birth or foundling certificate

Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption.

RULE 99, SECTIONS 6 & 7 Sections 6 and 7 of Rule 99 of the Rules of Court referring to Custody of Minors are still valid provisions.Rule 99, Section 6. Proceedings as to child whose parents are separated.The question as to the care and custody and control of a child or children of their marriage is brought before a Regional Trial Court by Petition or as an incident to any other proceedings.

When parents considered unfit to take charge of the child

1. by reason of moral depravity




2. habitual drunkenness3. incapacity4. poverty

ORDER OF PREFERENCE in case the parents are unfit

1. Parental/Maternal grandparents2. Child’s oldest brother or sister3. Some reputable or discreet person4. Any suitable asylum, children’s home or benevolent society.

No child under seven (7) years of age shall be separated from its mother, unless the court fins there are compelling reasons therefor.

Rule 99, Section 7. Custody of Vagrant or Abused ChildJurisdiction and VenueFamily Courts of the territory where the petitioner resides.

Grounds1. Parents of the minor are dead;2. Parents have abandoned the child by reason of long absence or legal or physical impossibility;3. Parents cannot support the child;4. Parents treat the child with excessive harshness;5. Parents give the child corrupting orders, counsels or examples;6. Parents cause or allow the child to engage in begging;7. Parents cause or allow child to commit offenses against the law.

PROCEDURE1. Filing of Petition – by a reputable resident of the province2. Show Cause Order – directed to parents or in case

the parents are dead or cannot be found, requiring the fiscal of the province to show cause, why the child should not be taken from its parents, if living3. Hearing and Order4. Service of Judgment – upon the Civil Registrar of the city or municipality where the court issuing the same is situated.

RULE 101PROCEEDINGS FOR HOSPITALIZATION

OF INSANE PERSONS

VenueRTC of province where the person alleged to be insane is found.

Who files?Director of Health with assistance of city or provincial fiscal.

Requisites1. 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 person2. Such person or one having charge of him is opposed or his being taken to hospital or asylum

DISCHARGE OF INSANE (Sec. 4)Director of Health may file this petition when he is of the opinion that the person is permanently or temporarily cured or may be released without danger

RULE 102HABEAS CORPUS

Habeas corpus extends to: (Sec.1)1. 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 entitled thereto

The restraint must be actual, effective and material. The person need not actually be confined as long as freedom of action is limited. (Moncupa vs. Enrile, GR No. 61107, Apr. 26, 1983)

Writ of Habeas Corpus - a command directed to the person detaining another, requiring him to produce the body of the person detained at a designated time and place, and to produce and to show cause and to explain the reason for detention.

PURPOSEThe essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. (Moncupa vs. Enrile, supra)

And any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. (Villavicencio vs. Lukban)

The privilege of writ is so sacred that, according to our CONSTITUTION, it shall not be suspended except in cases of invasion or rebellion when public security requires it (Art. III, Sec. 15).

IN CASES OF ILLEGAL CONFINEMENT OR DETENTIONGENERAL RULE: The release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic.EXCEPTION: When there are restraints attached to his release which precludes freedom of action, in which case the court can still inquire into the nature of his involuntary restraint. (Villavicencio vs. Lukban)

Whether the State can reserve the power to re-arrest a person for an

offense after a court of competent jurisdiction has absolved him of the offense.We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle, the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. (Moncupa vs. Enrile)

GROUNDS FOR RELIEF1. deprivation of any fundamental

or constitutional right2. lack of jurisdiction of the court

to impose the sentence3. excessive penalty

Requisites for the issuance of the Writ in cases by which the rightful custody of the person of a minor is withheld from the person entitled thereto

1. that the petitioner has the right to the custody over the minor2. that the rightful custody of the minor is being withheld from the petitioner by the respondent3. that it is 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)

Habeas Corpus can never be a substitute for appeal. Whether the petition for the writ of habeas corpus may be properly filed together with the petition for certiorari and mandamusThe Court ruled that the writs of habeas corpus and certiorari may be ancilliary to each other where necessary to give effect to the supervisory powers of the 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 not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. However,




habeas 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 a court having jurisdiction over the person and the subject matter. (Galvez, et al. vs. CA, et al., 237 SCRA 685).

The person on bail is not entitled to habeas corpus because his detention is legal and technical.

Does voluntary restraint constitute habeas corpus?As a GENERAL RULE, NO. EXCEPT when a person restrained is a minor and the petitioner is the father or mother or guardian or a person having custody of the minor.

Voluntariness is viewed from the point of view of the person entitled to custody.

Supervening Events May Bar ReleaseEven if the arrest of a person is illegal, supervening events may bar release of discharge from custody. What is to be inquired into is the legality of detention as of, at the earliest, the filing of the application for the writ of habeas corpus. (Velasco vs. CA, July 7,1995).

Preliminary Citation - issued by the court to show cause whether or not the writ should be issued

Who may grant the petition (Sec.2)1. SC or any member thereon2. CA or any member thereof3. RTC or any judge thereof4. MTC - in the absence of RTC judges

Procedure for grant of writa. verified petition signed by the

party for whose relief it is intended; some other person in his behalf;

b. allowance of writ;c. command officer to produce;

d. service of writ by sheriff or other officer;

e. return; andf. hearing on return.

To whom writ directed and what to require. (Sec.6)Directed to officer and commands him to:

1. have the body of person before the court; and2. show cause of the imprisonment or restraint.

How writ is executed and returned (Sec.8)Officer shall:

1. Convey the person so imprisoned before the judge, unless from sickness or infirmity, such person cannot, without danger be brought before the court.

2. Make the return of the writ together with the day and the cause of caption or restraint.

Defect of form (Sec.9)NO writ can be disobeyed for defect in form IF it sufficiently states:

1. person in whose custody or under whose restraint the party imprisoned or restraint is held, and

2. court or judge before whom he is to be brought.

When the return evidence, and when only a plea (Sec.3)If a prisoner is in custody under a warrant of commitment in pursuance of law or under a judicial order, the return shall be considered PRIMA FACIE EVIDENCE OF THE CAUSE OF RESTRAINT, however it shall only be plea of the facts set forth if restraint is by private authority.

When prisoner discharged if no appeal. (Sec.15)If 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 office or person detaining the prisoner.




If person detaining him does not appeal, the prisoner shall be released.

When prisoner may be removed from one custody to another (Sec.18)

1. By legal process2. Prisoner is delivered to an

inferior officer to carry to jail3. By order of proper court or judge

be removed from one place to another within the Phil. for trial.

4. In case of fire, epidemic, insurrection or other necessity or public calamity.

When does court acquire jurisdiction over person of respondent?The writ itself plays the role as summon in ordinary actions; court acquires jurisdiction over the person of the respondent BY MERE SERVICE OF WRIT.

APPEAL IN HABEAS CORPUS CASESThe appeal in habeas corpus cases may be taken in the name of the person detained or of the officer or person detaining him.

An appeal in habeas corpus cases shall be perfected by filing with the clerk of court or the judge, within 48 hours from notice of judgment, a notice of appeal.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO THE CUSTODY OF MINORS (A.M. No. 03-04-04-SC)

Who may file Petition? (Sec.3)- A verified petition for the rightful

custody of a minor may be filed by any person claiming such right.

Where to file petition? (Sec.3)- Family Court of the province or city

where the petitioner resides or where the minor may be found.

Provisional Order Awarding Custody (Sec.13)

As far as practicable, the following order of preference shall be observed in the award of custody:

a. Both parents jointly;b. Either parent, taking into

account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment unless the parent chosen unfit;

c. The grandparent or if there are several grandparents, grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;

d. The eldest brother or sister over twenty years of age unless he or she is unfit or disqualified;

e. The actual custodian of the minor over twenty years of age, unless the former is unfit or disqualified; or

f. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

Temporary Visitation Rights (Sec.15)The court shall provide in its order awarding provisional custody appropriate visitation rights to the non- custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.

Petition for Writ of Habeas Corpus (Sec. 20)

shall be filed with the Family court. shall be enforceable within its judicial region to which the Family Court belongs. the petition may however be filed with the regular court in the absence of the presiding judge of three Family Court, provided however that the regular court shall refer the case to the family Court as soon as its presiding judge returns duty.




petition may also be filed with the SC, CA, or with any of its members and, if so granted the writ shall be enforceable anywhere in the Philippines. 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 103CHANGE OF NAME

Venue (Sec. 1)RTC of the province in which he resides.

Contents of Petition (Sec.2)It shall set forth:

1. that petitioner is a bonafide resident of the province where petition is filed for at least three years prior to the date of filing;2. all names by which petitioner is known;3. cause for change of name;4. name asked for.

Petition shall be signed and verified by person desiring his name changed or some other person in his behalf.

Requirement of verification is formal, NOT jurisdictional requisite. It is not a ground for dismissing petition.

Jurisdictional Requirements1. the verified petition should be published for three successive weeks in some newspaper of general circulation in the province;2. that both the title and caption of the petition and its body shall recite:a) name /names or aliases of

the applicant;

b) cause for which the change of name is sought;

c) new name asked for. (Secan Kok vs. Republic, 52 SCRA 322).

Hearing - shall not be within 30 days prior to an election nor within 4 MONTHS after the LAST PUBLICATION of notice of hearing.

Effects of Discrepancy in the Petition and Published OrderThe defect in the petition and the order, as to the spelling of the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings.

Grounds for change of name1. name is ridiculous, tainted with dishonor and extremely difficult to write or pronounce;2. consequence of a change of status; e.g. legitimated child;3. necessity to avoid confusion;4. having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage;5. a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody.

TITLE OF PETITION MUST CONTAINED THE FOLLOWNG

1. Official name (birth certificate) – be very particular with the spelling because it may avoid or annul the proceedings; it is jurisdictional;2. all aliases; and3. name asked for.




All the names or aliases must appear in the title or caption of the petition, because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him. (Secan Kok vs. Republic,supra).

A decree of adoption grants the adoptee the right to use the adopter’s surname but not to change the former’s first name which relief must be sought in a discrete petition under Rule 103. (Republic vs. Hernandez, GR NO. 117209, February 9, 1996).

For administrative procedure for Change of Name, refer to Administrative Order 1, Series of 2004. It only applies to:

1. clerical errors; and2. innocuous errors.

RULE 107ABSENTEES

ABSENTEE CONSEQUENCE

0-2 years --------

2 years to 7 years Petition for declaration of

absence may be filedBeyond 7 years

(absence of 4 years under extraordinary

circumstance)

Considered dead for all intents and

purposes except for purposes of succession

For purposes of marriage: 4 years

continuous absence shall be sufficient for

present spouse to remarry, 2 years only under extraordinary

circumstance

PURPOSE OF PETITION - to appoint an administrator over the properties of the absentee. Hence, if absentee left no properties, such petition is unnecessary.

GROUNDS FOR TERMINATION OF THE ADMINISTRATION

1. absentee personally appears through an agent2. absentee death is proven and heirs appear3. third person appears showing that he acquired title over the property of the absentee4. Actual or presumptive death cannot be the subject if it is the onlt question or matter involved in a case or upon which a competent court has to pass. (Lukban vs. Republic, GR No. 8492, February 29, 1956)

No independent action for Declaration of Presumption of DeathException: the need for declaration of presumptive death for purposes of marriage (Article 41 of the Family Code).

RULE 108

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Republic Act No. 9048 which was passed by Congress on February 8, 2001 substantially amended Article 412 of the New Civil Code, to wit:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname.—No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the




provisions of this Act and its implementing rules and regulations.The above law speaks clearly. Clerical or typographical errors in entries of the civil register are 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 Rule 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 of the civil register. (Lee vs. CA, G.R. No. 118387, October 11, 2001).

Requisites of Adversarial proceedings1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded.2. The order of the hearing must be published once a week for three consecutive weeks.3. Notice thereof must be given to the Civil Registrar and all parties affected thereby.4. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within 15 days from notice of the petition or from the last date of publication of such notice, file his opposition thereto.5. Full blown trial.

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 substantive right. (Chiao Ben Lim vs. Zosa, L- 40252, December 29, 1986)

PETITIONS FOR CHANGE OF

PETITIONS FOR THE CORRECTION,

NAME CANCELLATION OF ENTRIES

Petition to be filed in the RTC where

the petitioner resides

Verified petition filed in the RTC where the corresponding Civil registry is located

Solicitor General must be notified by service of a copy of

the petition.

Civil registrar concerned is made a

party to the proceeding as a respondent. The Solicitor General

must also be notified by service of a copy

of the petition.Petition is filed by person desiring to change his name

Petition is filed by any person interested in any ACT, EVENT, ORDER or DECREE

Order for hearing shall be published once a week for

three consecutive weeks

Order shall also be published once for three consecutive

weeks and court shall cause reasonable notice to persons named in petition

Service of judgment shall be upon the civil register concerned

Petition for change of name (Rule 103) and petition for cancellation or correction of entries are DISTINCT PROCEEDINGS.

Hence, a party cannot change name and correct an entry in a single petition without satisfying the jurisdictional requirements. (Republic v. Balmore)

RULE 109APPEALS IN SPECIAL PROCEEDINGS

Orders or judgments from which appeals may be taken (Sec.1)An interested person may appeal in special proceedings from such order or judgment rendered which:

1. Allows or disallows a will;2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;




3. Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it;4. Settles the account of an executor, administrator, trustee or guardian;5. Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing appealing, except that no appeal shall be allowed from the appointment of a special administrator; and 6. Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.

ORDERS THAT ARE NOT APPEALABLE1. Order directing administrator to take action to 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 trial or for reconsideration.

APPEAL IN ORDINARY CIVIL

ACTION

APPEAL IN SPECIAL

PROCEEDINGS

PERIOD:15 days

30 days

REQUIREMENTSNotice of Appeal and

Docket Fees

Record on Appeal and Docket Fees

No extension May be extended on meritorious grounds




VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

SPECIAL PROCEEDING VENUE JURISDICTION

1. Settlement of the Estate Resident of the Decedent or if the decedent is a non-resident, place where he had an estate

MTC if the gross value of the estate does not exceed P200,000, or P400,000 in Metro Manila

RTC if the gross value of the estate exceeds the above amounts

2. Escheat a. Person dies intestate leaving no heir – Resident of the decedent or if non-resident, in the place where he had an estate.

RTC

b. Reversion – Where the land lies in whole or in part

RTC

c. Unclaimed Balance – Where the dormant deposits are located

RTC

5. Appointment of Guardians

Where the minor or incompetent resides

Family Court (in case of Minors)RTC (Regular courts—in cases other than minors)

6. Appointment of Trustees

Where the will was allowed or where the property or portion thereof affected by the trust is situated

RTC

7. Adoption Where the adopter resides Family Court

8. Rescission of Adoption Where the adoptee resides Family Court

9. Habeas Corpus Where the detainee is detained (if the petition is filed with the RTC)

SC, CA, RTC, MTC in the province or city in case there is no RTC judge




10. Change of Name Where petitioner resides RTC

11. Appointment of Representative of Absentee/Declaration of Absence

Where the absentee resided before his disappearance RTC

12. Cancellation/Correction of Entries in the Civil Registries

Where the corresponding Civil Registry is located

RTC


Documents

Special Proceedings Memory Aid