Remedial Law Formatted

8/3/2019 Remedial Law Formatted

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SPECIAL PROCEDURE REMEDIAL LAW

I. PRELIMINARY MATTERS

DEFINITION

• SPECIAL PROCEEDINGS – A remedy bywhich a party seeks to establish a status, right

or a particular fact. [Rule 1, Sec. 3(c)]

APPLICABLE RULES

• If special rules are provided, they shallapply. But in the absence of such specialprovisions, the rules applicable in specialproceedings shall be applied. [Rule 72, Sec. 2

]

• There are special proceedings which are notpart of the ROC (e.g. Writs of amparo andhabeas data), as special proceedings are ingeneral cases wherein one seeks to establishthe status/right of a party or a particular fact.

• The State has an overriding interest in eachspecial proceeding, and the matter is not acontroversy between private parties purely.[Bautista]

• The distinction between final and interlocutoryorders in civil actions for purposes of determining the issue of applicability, is notstrictly applicable to orders in specialproceedings. Rule 109 specifies the orders fromwhich appeals may be taken. [Regalado]

• Rule 33 regarding judgment on demurrer toevidence is applicable to special proceedings.[Matute v. CA (1969)

]

ORDINARY ACTIONS VIS-À-VIS SPECIALPROCEEDINGS

Ordinary action Special proceeding

To protect/enforce a rightor prevent/redress awrong

To establish a right/statusor fact

Involves 2 or moreparties

May involve only 1 party

Governed by ordinaryrules, supplemented byspecial rules

Governed by special rules,supplemented by ordinaryrules

Initiated by a pleading,and parties respondthrough an answer

Initiated by a petition,and parties respondthrough an opposition

VENUES AND JURISDICTIONS FOR DIFFERENT SPECIAL PROCEEDINGS

Venue Jurisdiction

Estate settlement

Province of decedent'sresidence at the time of death

MTC - If estate's grossvalue does not exceedP300K (P400K in MetroManila)

If non-resident decedent- Province where he had

estate

RTC - If estate's grossvalue exceed MTC's

jurisdictionEscheat

If decedent diesintestate and withoutheirs - Province wheredecedent last resided orwhere estate is

XXXXX

If reversion - Provincewhere land lieswholly/partially

XXXXX

Guardianship

Where ward resides orwhere his property islocated (if non-resident)

Family Court - If minorward

RTC - If other than minorward

Trusteeship

Where the will wasallowed or where the

property affected by thetrust is located

RTC

Adoption

If domestic - Whereadopter resides

Family Court

If inter-country - Whereadoptee resides (if filedwith Family Court)

Family Court or Inter-Country Adoption Board

If rescission of adoption- Where adoptee resides

Family Court

Habeas corpus

Where detainee isdetained (if filed in RTC)

SC (on any day and at anytime, enforceableanywhere in thePhilippines)

XXXXX Sandiganbayan (only in aidof its appellate jurisdiction)

XXXXX CA (in instances authorizedby law, enforceableanywhere in thePhilippines)

XXXXXX RTC (on any day and atany time, enforceable onlywithin its judicial district)

Writ of amparo

Where the threat oract/comission or any of its elements occurred, atany day and time) (if

filed in RTC)

SC, CA, Sandiganbayan,RTC

Writ of habeas data

Petitioner's residence orwhere the place theinformaion isgathered/collected/stored, at the petitioner'soption

RTC

SC, CA, Sandiganbayan -If the action concernspublic data files of government offices

Change of name

If judicial - Where theperson applying for the

change of his nameresides

RTC

If administrative - Local civil registry orPhilippine consulate

a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry of the place of residence of interested party (only if petitioner migrated toanother place in thePhilippines and it wouldbe impractical to file inthe place where recordssought to be changed

are kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

xXXXX

Cancellation/correction of entries in the civilregistry

If judicial - Where theconcerned civil registry islocated

RTC

1 0 0 % U P L A W U P B A R O P S 2 0 0 8 Page 1 of 42




If administrative - Local civil registry orPhilippine consulate

a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry of the place of residence of interested party (only if petitioner migrated toanother place in thePhilippines and it wouldbe impractical to file inthe place where recordssought to be changedare kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

XXXXX

Declaration of absence and appointment of theirrepresentativeWhere absentee residedbefore his disappearance

RTC

II. SETTLEMENT OF ESTATE OF

DECEASED PERSONS

A. VENUE AND

JURISDICTION

• Special proceedings for settlement of estatemay be testate (where the deceased left a will)

or intestate (if there is no will).• Probate of a will is mandatory and takesprecedence over intestate proceedings.• If in the course of intestate proceedings, itis found that the decedent left a will,proceedings for the probate of the latter shouldreplace the intestate proceedings.

WHERE ESTATE SETTLED

1. If decedent is a resident of the

Philippines (whether citizen or alien) – Court of the place where the decedent resided at the

time of death.2. If decedent is a non-resident of the

Philippines – Court of the place where thedecedent had his estate.a) RTC if estate is greater

than P300K (P400K in Metro Manila)b) MTC if estate is less than

P300K (P400K in Metro Manila)

3. Note: Upon dissolution of marriage

by the death of either the husband or the wife,the partnership affairs must be liquidated in thein/testate proceedings of the deceased spouse.If both have died, liquidation may be made inthe in/testate proceedings of either. [Rule 73,

Sec. 2

]• If separate proceedings have beeninstituted for each estate, both proceedingsmay be consolidated if they were filed inthe same court [Bernardo v. CA].

• RESIDENCE – Personal/actual/physicalhabitation, his actual residence or place of abode [Fule v. CA], and not his permanentlegal residence of domicile [Pilipinas Shell v.Dumlao

].• Wrong venue is a waivable proceduraldefect, and such waiver may occur by lacheswhere a party had been served notice of the

filing of the probate petition for a year andallowed the proceedings to continue for suchtime before filing a motion to dismiss. [Uriartev. CFI]• Extent of court’s jurisdiction: Limited

jurisdiction. It may only determine and ruleupon the following issues:

1) Administration of the estate;2) Liquidation of the estate;3) Distribution of the estate.4) Other issues that may beadjudicated on:

a) Who are the heirs of the decedent.[Reyes v. Ysip

]

b) Recognition of a natural child.[Gaas v. Fortich]c) Validity of disinheritance effectedby the testator. [Hilado v. Ponce deLeon]d) Status of a woman who claims tobe the decedent’s lawful wife. [Torresv. Javier]





e) Validity of a waiver of hereditaryrights. [Borromeo-Herrera v.Borromeo]f) Status of each heir.g) Whether property in inventory isconjugal or exclusive property of deceased spouse.h) All other mattersincidental/collateral to the settlementand distribution of the estate.

• Exception: [Coca v.Borromeo] Where a particularmatter should be resolved by theRTC in the exercise of its general

jurisdiction or its limited probate jurisdiction is not a jurisdictionalissue but a mere question of procedure and can be waived.

DETERMINATION OF OWNERSHIP

•

General rule: Not allowed.• Exceptions:1) Provisionally, ownership may be

determined for the purpose of includingproperty in inventory, without prejudiceto its final determination in a separateaction.

2) If all the parties are heirs and theysubmit the issue of ownership toprobate court, provided that the rightsof 3rd parties are not prejudiced.

3) If the question is one of collation oradvancement.

4) If the parties consent to the

assumption of jurisdiction by theprobate court.

EXCLUSIONARY RULE [Rule 73, Sec. 1

]

• General rule: The court first takingcognizance of the settlement of the estate of the decedent shall exercise jurisdiction to theexclusion of all other courts. The probate courtacquires jurisdiction from the moment thepetition for the settlement of estate is filed withsaid court. It cannot be divested of such

jurisdiction by the subsequent acts of theparties (e.g. if they entered into an

extrajudicial partition settlement). [Sandoval v.Santiago

]• Note: In Rodriguez v. Borja, the SCsaid that the delivery of the will is sufficientfor jurisdiction to be acquired, even if nopetition is filed.• Exception: Estoppel by laches.

REMEDY IF THE VENUE IS IMPROPERLYLAID

• General rule: Ordinary appeal, and notcertiorari or mandamus.

• Exception: If want of jurisdiction

appears on the record of the case. [Rule73, Sec. 1; Eusebio v. Eusebio]

ISSUANCE OF WRIT OF EXECUTION:

• General rule: Probate court cannot issuewrit of execution.• Rationale: Its orders usually refer to the

adjudication of claims against the estatewhich the executor/administrator may

satisfy without the need of executoryprocess.

• Exception: [Vda. de Valera v. Ofilada]1) To satisfy the contributive shares of the devisees/legatees/heirs when thelatter had entered prior possession overthe estate. [Rule 88, Sec. 6

]2) To enforce payment of theexpenses of partition. [Rule 90, Sec. 3]3) To satisfy the costs when a personis cited for examination in probateproceedings. [Rule 142, Sec. 13

]

B. PRESUMPTION OF DEATH

• General rule: A person is dead for thepurpose of settling his estate if he has beenmissing for 10 years. [Art. 390, CC

]• However, if the absentee disappeared after

the age of 75 years, an absence of 5 yearsis sufficient for the opening of succession.

• However, the following persons would beconsidered absent even for the purpose of opening succession after just 4 years: [Art.391, CC]

1) A person on board a vessel lostduring a sea voyage, or an aeroplanewhich is missing.2) A person in the armed forces whohas taken part in war.3) A person who has been in danger of death under other circumstances.

• If the absentee turns out to be alive, shall

be entitled to the balance of his estate afterpayment of all his debts. The balance may berecovered by motion in the same proceeding.[Rule 73, Sec. 4

]

C. WAYS OF SETTLING THE

ESTATE

• General rule: Estate settlement should be judicially administered through anadministrator/executor.

•

Exceptions:1) Extrajudicial settlement byagreement between/among heirs.[Rule 74, Sec. 1]2) Summary settlement of estates of small value. [Rule 74, Sec. 2

]

a. EXTRAJUDICIALSETTLEMENT BY AGREEMENTBETWEEN/AMONG HEIRS

PROCEDURE IN EXTRAJUDICIALSETTLEMENT BY AGREEMENT BETWEEN/AMONG HEIRS


Death of the decedent

Division of estate in public instrument or affidavitof adjudication




REQUISITES

A. Substantive1) The decedent left:

a) No will.

b) No debts. It is sufficient if any debtsthat the decedent incurred hasbeen paid at the time of the extra-

judicial settlement. [Guico v.Bautista]

There is also the disputablepresumption that the decedent leftno debts if no creditor files apetition for letters of administrationwithin 2 years after the death of the decedent.

2) The heirs are all of age• If there are minors, they should berepresented by their judicial or legalrepresentatives duly authorized for thepurpose.

B. Procedural1) Division of estate must be in a publicinstrument or by affidavit of adjudication inthe case of a sole heir

• Private instrument is valid.The requirement of a public instrumentin Rule 74, Sec. 1 is not constitutive of the validity but is merely evidentiary innature. (Hernandez v. Andal)• However, reformation of the instrument may be compelled.[Regalado

]2) Filed with proper registry of deeds.3) Publication of notice of the fact of extrajudicial settlement at least once aweek for 3 consecutive weeks.

• An extrajudicial settlement, despitethe publication thereof in a newspaper,shall not be binding on any person whohas not participated therein or who hadno notice thereof. [Rule 74, Sec. 1]

4) Bond filed equivalent to the value of the personal property.

• The bond is required only whenpersonalty is involved. If it is a realestate, it shall be subject to a lien infavor of creditors, heirs or otherpersons for the full period of 2 yearsfrom such distribution and such liencannot be substituted by a bond.• The bond is the value of thepersonal property certified by theparties under oath and conditionedupon payment of just claims filed underRule 74, Sec. 4.

b. SUMMARY SETTLEMENT OFESTATES OF SMALL VALUE

PROCEDURE IN SUMMARY SETTLEMENTOF ESTATES OF SMALL VALUE

REQUISITES

1) Gross value of the estate must not exceedP10K.2) Application must contain allegation of grossvalue of estate.3) Date of hearing:

a) Shall be set by court not less than1 month nor more than 3 months from dateof last publication of notice.b) Order of hearing published once aweek for 3 consecutive weeks in anewspaper of general circulation.


Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in anewspaper of general circulation

The public instrument or affidavit of adjudicationmust be filed with the proper Registry of Deeds

Filing of bond equivalent to the value of personalproperty

Hearing to be held not less than 1 month normore than 3 months from the date of the last

publication of notice


An application for summary settlement with anallegation that the gross value of the estate does

not exceed P10K

Publication of notice of the fact of extrajudicialsettlement once a week for 3 consecutive weeksin a newspaper of general circulation (the court

may also order notice to be given to otherpersons as such court may direct

Court to proceed summarily, without appointingan executor/administrator, and to make orders

as ma be necessar such as:

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate




4) Notice shall be served upon such interestedpersons as the court may direct.

• A summary settlement is notbinding upon heirs/creditors who were notparties therein or had no knowledgethereof. [Sampilo v. CA

]5) Bond in an amount fixed by the court (notvalue of personal property) conditioned uponpayment of just claims under Rule 74, Sec. 4.

REMEDIES OF AGGRIEVED PARTIESAGAINST EXTRAJUDICIAL SETTLEMENT /SUMMARY SETTLEMENT

1. CLAIM AGAINST THE BOND OR REAL

ESTATE OR BOTH [Rule 74, Sec. 4

]

• Remedies:1) If there is an undue deprivation of lawful participation in the estate2) The existence of debts against the

estate or undue deprivation of lawfulparticipation payable in money

• This remedy can be availed of only within 2years after the settlement and distribution of the estate.• Such bond and such real estate shallremain charged with a liability tocreditors/heirs, or other persons for the fullperiod of 2 years after such distribution,notwithstanding any transfers of real estatethat may have been made.• Period for claim of minor or incapacitatedperson: Within 1 year after the minority orincapacity is removed.

2. PETITION FOR RELIEF [Rule 38]

• Grounds for petition for relief: FAME –fraud, accident, mistake, excusable negligence.• Period: 60 days after the petitioner learnsof the judgment, final order or otherproceeding to be set aside, and not more than6 months after such judgment or final orderwas entered.

3. REOPENING BY INTERVENTION WITHINREGLEMENTARY PERIOD

• Who is allowed to intervene with leave of court: A person who either:

1) Has a legal interest in the matter inlitigation;2) Has such legal interest in thesuccess of either of the parties, or aninterest against both;3) Is so situated as to be adverselyaffected by a distribution/disposition of property in the custody of the court or of an officer thereof.

• Period: Anytime before rendition of judgment by the TC. As long as withinreglementary period of 2 years.

4. NEW ACTION TO ANNUL SETTLEMENTWITHIN REGLEMENTARY PERIOD

• Reglementary period: The 2 years, and notthe prescription period.

5. RESCISSION IN CASE OF PRETERITION OF

COMPULSORY HEIR IN PARTITION TAINTEDWITH BAD FAITH [Art. 1104, CC

]

6. ACTION TO ANNUL A DEED OF

EXTRAJUDICIAL SETTLMENT ON THEGROUND OF FRAUD WHICH SHOULD BEFILED WITHIN 4 YEARS FROM THEDISCOVERY OF FRAUD [Gerona v. DeGuzman]

EXTRAJUDICIAL SETTLEMENT VS.SUMMARY SETTLEMENT

Extra-judicialsettlement

Summary settlement

No court intervention Requires summary judicial adjudication

Estate's value isimmaterial

Gross estate value mustnot exceed P10K

There must be nooutstanding debts at thetime of settlement

Available even if thereare debts (since thecourt will makeprovisions for payment)

Resorted to at the

instance and byagreement of all theheirs

May be instituted by any

interested party, even bya creditor of the estate,without the consent of allthe heirs

Amount of bond is equalto the value of thepersonal property

Amount of bond is to bedetermined by the court

c. JUDICIAL SETTLEMENTTHROUGH ANADMINISTRATOR/EXECUTOR

PROCEDURE IN JUDICIAL SETTLEMENTTHROUGH AN ADMINISTRATOR/EXECUTOR


Petition for probate of the will, if any

Issuance of Letters Testamentary/Administration

Filing of Claims

Payment of claims: sale/mortgage/encumbranceof estate properties


Court order fixing the time and place for probate

The court shall cause notice of such time andplace to be published 3 weeks successively in anewspaper of general circulation. Notice shallalso be given to the designated/known heirs,legatees and devisees, and the executor if the

one petitioning for allowance of the will is not thetestator




• Special proceedings for estate settlementmay be testate (where the deceased left a will)or intestate (if there is no will).• There must be judicial settlement throughan administrator/executor if it does not fallunder the 2 exceptions, regardless of theexistence or non-existence of a will.• The allowance of the will shall be conclusiveas to its due execution. [Rule 75, Sec. 1

]

i. VENUE AND

JURISDICTION

• RTC if estate is greater than P300K(P400K in Metro Manila).• MTC if estate is less than P300K(P400K in Metro Manila).

AS TO THE INTRINSIC VALIDITY OF A WILL• General rule: No. The probate court’sauthority is limited to:

1) Extrinsic validity of the will.2) Due execution thereof.3) Testator’s testamentary capacity.4) Compliance with the requisites or

solemnities prescribed by law.• Exception:

• PRINCIPLE OF PRACTICALCONSIDERATION – Waste of time/effort/expense plus added anxietyare the practical considerations thatinduce us to a belief that we might aswell meet head-on the issues of thevalidity of the provisions of the will.[Nuguid v. Nuguid]• If there is a defect that is apparenton the face of the will. [Nepomuceno v.CA

]

ii. ALLOWANCE/DISALLOWANCE OFTHE WILL

PERSONS WHO MAY FILE PETITION [Rule 76, Sec.1

]1) Executor;2) Devisee/legatee named in the will;3) Person interested in the estate;4) Testator himself during his lifetime;5) Any creditor – as a preparatory step forfiling of his claim therein.

CONTENTS IN THE PETITION FOR PROBATE [Rule76, Sec. 2

]1) Jurisdictional facts: Death of thetestator and his residence at the time of deathor the place where the estate was left by thedecedent who is a non-resident.2) Names/ages/residences of the heirs,legatees, and devisees.3) Probable value and character of theestate property.

4) Name of the person for whom theletters are prayed.5) Name of the person having custody of the will if it has not been delivered to the court.

• But no defect shall render void theallowance of the will, or the issuance of letters testamentary or of administrationwith the will annexed.

PROCEDURE AFTER WILL IS DELIVERED TO, ORWHEN A PETITION FOR ALLOWANCE OF A WILL ISFILED IN, THE COURT:

1) The court shall fix a time and place forproving the will.

• Rationale: So that all concernedmay appear to contest the allowancethereof, if such is the case.

2) The court shall cause notice of suchtime and place to be published 3 weekssuccessively in a newspaper of generalcirculation. This rule on newspaper publicationdoes not apply if the probate of the will hasbeen filed by the testator himself.3) The court shall give notice of thedesignated time and place to:

a) Designated/known heirs,legatees and devisees.b) Executor and co-executor (if not the petitioner).

• The probate court acquires jurisdiction overthe interested persons and the res onlyafter the publication and notices are sent.Also, if the testator himself is the oneasking for the allowance of the will, thenotice shall be sent only to his compulsoryheirs.

MODES OF NOTIFICATION [Rule 76, Sec. 4]1) If by mail – 20 days before hearing.2) If through personal notice – 10 daysbefore hearing.

DISALLOWANCE OF WILL [Rule 76, Sec. 9

]1) If the formalities required by law havenot been complied with2) If the testator was insane, or otherwisementally incapable of making a will, at the timeof its execution3) If it was executed through force or

under duress, or the influence of fear, orthreats4) If it was procured by undue andimproper pressure and influence, on the part of the beneficiary or of some other person5) If the signature of the testator wasprocured by fraud6) If the testator acted by mistake or didnot intend that the instrument he signed shouldbe his will at the time of affixing his signaturethereto

iii. DUTY OF CUSTODIAN/EXECUTOR OF WILL

DUTY OF THE CUSTODIAN OF THE WILL [Rule 75,Sec. 2

]• To deliver the will within 20 days after heknows of the death of the testator to the courthaving jurisdiction or to the executor named inthe will.

DUTY OF THE EXECUTOR NAMED IN THE WILL[Rule 75, Sec. 3

]


Distribution of remainder, if any(but can be made before payment if a bond is

filed by the heirs)




1) It is his duty to present the willwithin 20 days after (a) he knows of the deathof the testator or (b) after he knows that he isnamed the executor to the court having

jurisdiction, unless the will has reached thecourt in any other manner.2) Signify to the court in writing hisacceptance of the trust or his refusal to acceptit.

FAILURE TO FULFILL ABOVE DUTIES• Without a satisfactory excuse, they shall befined a sum not exceeding P2K. [Rule 75, Sec.4

]• If he retains the will and does not deliver itto the court, he may be committed to prisonand kept there until he delivers the will. [Rule75, Sec. 5

]

iv. PROOF OF WILL

•

In the hearing for the probate of a will, thecompliance of publication and notice must firstbe shown before introduction of testimony insupport of the will. [Rule 76, Sec. 5]

EVIDENCE REQUIRED IN SUPPORT OFTHE WILL

1) Uncontested wills: [Rule 76, Sec. 5]a) Notarial wills – Testimony of at least 1of the subscribing witnesses may beallowed, if such witness testifies that thewill was executed as is required by law.

• If all subscribing witnesses reside

outside the province – Deposition isallowed.• If the subscribing witnesses aredead, insane, or if none of them residesin the Philippines – The court mayadmit testimony of other witnesses toprove the sanity of the testator and thedue execution of the will; and asevidence of the execution of the will, itmay admit proof of the handwriting of the testator and of the subscribingwitnesses or of any of them.

b) Holographic wills – The testimony of 1witness who knows the handwriting and

signature of the testator may be admitted.In the absence thereof, the testimony of anexpert witness may be admitted. If thetestator himself petitioned for theallowance of his holographic will, hisaffirmation is sufficient evidence of thegenuineness and due execution of the will.

2) Contested wills: [Rule 76, Sec. 11]a) Notarial wills – All subscribingwitnesses and the notary public beforewhom the will was acknowledged must beproduced and examined.

• However, the will may be allowed if the court is satisfied from the

testimony of other witnesses and fromall the evidence presented that the willwas executed and attested in themanner required by law if any or all of them either:

(1) Testify against the due

execution of the will;

(2) Do not remember having

attested to it;

(3) Are otherwise of doubtful

credibility.b) Holographic will – 3 witnesses whoknow the handwriting of the testator mustbe produced. In the absence thereof, thetestimony of an expert witness may beresorted to.

FACTS THAT SHOULD BE PROVED TO ALLOW ALOST OR DESTROYED WILL [Rule 76, Sec. 6

]1) That the will has been duly executed bythe testator;2) That the will was in existence when thetestator died, or if it was not, that it has beenfraudulently/accidentally destroyed in thelifetime of the testator without his knowledge;and3) The provisions of the will are clearlyestablished by at least 2 credible witnesses.

• When a lost will is proved, the provisions

thereof must be distinctly stated and certifiedby the judge, under the seal of the court, andthe certificate must be filed and recorded asother wills are filed and recorded.

PROBATE OF LOST/DESTROYED HOLOGRAPHICWILL

• General rule: Not allowed.• Exception: A lost/destroyed holographic

will could be proved by photostatic or xeroxcopies thereof. [Rodelas v. Aranza]

PROOF OF HOLOGRAPHIC WILL IF TESTATORPETITIONS FOR PROBATE [Rule 76, Sec. 12]

•

The fact that he affirms that theholographic will and the signature are in hisown handwriting shall be sufficient evidence of the genuineness and due execution thereof.• If contested, the burden of disproving thegenuineness and due execution thereof shall beon the contestant. The testator may presentsuch additional proof as may be necessary torebut the evidence for the contestant.

v. CONTEST TO WILL

• Procedure: The person contesting the willmust state his opposition in writing and serve a

copy thereof on the petitioner and other partiesinterested in the estate. [Rule 76, Sec. 10]

vi. ALLOWANCE OF WILLPROVED OUTSIDE THEPHILIPPINES

• A will allowed/probated in a foreign countrymust be reprobated in the Philippines.

• Administration of an estate extends only tothe assets of the decedent found within thestate or country where it was granted. Theadministrator appointed in one state has no

power over property in another state orcountry. [Leon & Ghezzi v. Manufacturer LifeInsurance]

• Petition to be filed in the RTC. The RTCwhere such petition is filed shall fix a time andplace for the hearing and cause notice thereof to be given as in case of an original willpresented for allowance. [Rule 77, Sec. 1 and 2]





PROOF IN THE REPROBATE OF THE FOREIGN WILL[Suntay v. Suntay]

1) The testator had his domicile in the foreigncountry;2) The will has been admitted to probate insuch country;3) The fact that the foreign tribunal is aprobate court;4) The law on probate procedure of the saidforeign country and proof of compliancetherewith;5) The legal requirements in said foreigncountry for the valid execution of the will.

EFFECTS OF REPROBATE [Rule 77, Sec. 3 and 4

]1) The will shall have the same effect as if originally proved and allowed in the Philippines.2) Letters testamentary or administration witha will annexed shall extend to all estates of thePhilippines.3) Such estate, after the payment of justdebts and expenses of administration, shall bedisposed of according to the will, so far as suchwill may operate upon it, and the residue, if any, shall be disposed of as provided by law incases of estates in the Philippines belonging topersons who are inhabitants of anothercountry.

vii. LETTERSTESTAMENTARY/ADMINISTRATION

QUALIFICATIONS

PERSONS WHO MAY BEEXECUTORS/ADMINISTRATORS

1) EXECUTOR – The person named in the willto administer the decedent’s estate and carryout the provisions thereof.2) ADMINISTRATOR (regular or special) –The person appointed by the court toadminister the estate where the decedent diedintestate.• An administrator may also be one

appointed by the court in cases when,although there is a will, the will does notappoint any executor, or if appointed, saidperson is either incapacitated or unwilling

to serve as such.3) A corporation/association authorized toconduct the business of a trust company in thePhilippines may be appointed as an executor,administrator, guardian of an estate, ortrustee, in like manner as an individual; but itshall not be appointed guardian of the personof a ward. [Art. 1060, CC

]4) The marriage of a single woman also shallnot affect her authority to serve under aprevious appointment. [Rule 78, Sec. 3]

PERSONS WHO ARE INCOMPETENT TO SERVE ASEXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1

and 2

]1) A minor.2) A non-resident.3) One who, in the opinion of the court, isunfit to exercise the duties of the trust byreason of:

a) Drunkenness.b) Improvidence.c) Want of understanding/integrity.

d) Conviction of an offense involvingmoral turpitude.

4) The executor of an executor cannotadminister the estate of the first testator.

Executor Administrator

Nominated by thetestator and appointedby the court

Appointed by the court if the testator did notappoint, of if theappointee isincapacitated or refused

Duty to present the willto court

No such duty

Testator may providethat executor may servewithout bond (but thecourt may direct him togive bond to pay debts)

Administrator mustalways give a bond

Compensation may beprovided for by thetestator in the will;otherwise, Rule 85, Sec.7 shall apply

Compensation is to begoverned by Rule 85,Sec. 7

SEVERAL CO-EXECUTORS NAMED IN THE WILL BUTNOT ALL CAN ACT

• If all of the named co-executors cannot actbecause of incompetency, refusal to accept thetrust, or failure to give bond, on the part of oneor more of them, letters testamentary mayissue to such of them as are competent, acceptand give bond, and they may perform theduties and discharge the trust required by thewill. [Rule 78, Sec. 5

]

ORDER OF PREFERENCE IN GRANTING LETTERS OF

ADMINISTRATION1) Surviving spouse or next of kin.• NEXT OF KIN – Those persons who are

entitled under the statute of distribution tothe decedent’s property.

2) Any one or more of the principalcreditors.3) Stranger.

• Rationale: The underlying assumption isthat those who will reap the benefits of awise/speedy/economical administration of theestate or those who will most suffer theconsequences of

waste/improvidence/mismanagement, have thehigher interest and most influential motive toadminister the estate correctly.• Letters of administration may be granted toany person or any other applicant even if thereare other competent persons with a better rightto the administration, if such persons fail toappear when notified and claim the letters tothemselves. [Rule 79, Sec. 6

]• If a petition for letters of administration isfiled, such court shall fix a time and place forhearing the petition and shall cause noticethereof to be given to the known heirs andcreditors of the decedent, and other persons

believed to have an interest in the estate.[Rule 79, Sec. 3

]

OPPOSITION TO ISSUANCE

OPPOSITION OF THE ISSUANCE OF LETTERSTESTAMENTARY [Rule 79, Sec. 1]

• Any interested person in the will.





• He should state the grounds in writing whyhe is opposing and he may attach a petition forletters of administration.

CONTENTS OF A PETITION [Rule 79, Sec. 2

]1) Jurisdictional facts.2) Names/ages/residences of heirsand creditors.3) Probable value and character of theestate.4) Name of the person for whom theletters are prayed for.

• But no defect in the petition shallrender void the issuance of letters of administration

GROUNDS FOR OPPOSING [Rule 79, Sec. 4

]1) in Letters Testamentary:

• Incompetence.2) in Letters of Administration:

• Incompetence.• Preferential right underRule 78, Sec. 6.

SPECIAL ADMINISTRATORS

• Court EEs should not be appointed specialadministrators as their objectivity andimpartiality may be compromised byextraneous considerations.[Medina v. CA]• The order of preference in the appointmentof regular administrators does not apply to theappointment of a special administrator, butsuch order of preference may be followed by

the judge in the exercise of sound discretion.[Matias v. Gonzales]• Similarly, the grounds for the removal of the regular administrator do not apply strictlyto the special administrator as he may beremoved by the court on other grounds in itsdiscretion. [Junquera v. Borromeo

]• The order appointing a specialadministrator is an interlocutory and is notappealable. [Garcia v. Flores]

WHEN APPOINTED1) Delay in granting of letters including appealin the probate of the will. [Rule 80, Sec. 1

]

2) Executor is a claimant of the estate herepresents. [Rule 86, Sec. 8

]• In this case, the administrator shallhave the same powers as that of a generaladministrator.

Regular administrator Special administrator

Appointment may be thesubject of appeal

Appointment is aninterlocutory order andmay not be the subject of an appeal

One of the obligations isto pay the estate's debts

He cannot pay the estate'sdebts

Appointed if decedentdied intestate or did not

appoint anadministrator, or if theappointee refused or isnot qualified

Appointed if there is delayin granting letters

testamentary or letters of administration, or if theexecutor is a claimant of the estate he represents

DUTIES AND GENERAL POWERS OFADMINISTRATORS AND SPECIALADMINISTRATORS

DUTIES/POWERS OF THE GENERALADMINISTRATOR

1) To have access to, and examine and takecopies of books and papers relating to thepartnership in case of a deceased partner.2) To examine and make invoices of theproperty belonging to the partnership in case of a deceased partner.3) To make improvements on the propertiesunder administration with the necessary courtapproval except for necessary repairs.4) To maintain in tenantable repair the housesand other structures and fences and to deliverthe same in such repair to the heirs or deviseeswhen directed to do so by the court.5) To possess and manage the estate whennecessary for (1) the payment of debts, and(2) for the payment of expenses of administration.6) Make a true inventory and appraisal of allreal/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles forsubsistence of family).7) To render true an just account of hisadministration within 1 year of appointment.8) To perform all orders by the court.9) Discharge all debts/legacies/charges asshall be decreed by the court.10) Give allowance to legitimate survivingspouse or children of the decedent if the courtdecrees such (grandchildren are not entitled).

DUTIES/POWERS OF THE SPECIALADMINISTRATOR

1) Possession and charge of the goods,chattels, rights, credits and estate of thedeceased.2) Preserve the same.3) Commence and maintain suit for theestate.4) Sell only: (1) perishable property; and (2)property ordered by the court.5) Pay debts only as may be ordered by thecourt.6) Make a true inventory and appraisal of allreal/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles for

subsistence of family).7) To render true an just account of hisadministration within 1 year of appointment.8) To perform all orders by the court.9) Give allowance to legitimate survivingspouse or children of the decedent if the courtdecrees such (grandchildren are not entitled).10) Deliver property he received to personappointed as executor or administrator or tosuch other person as may be authorized by thecourt.

RESTRICTIONS ON THE POWER OF ANADMINISTRATOR/EXECUTOR

1) Cannot acquire by purchase, even at publicor judicial auction, either in person ormediation of another, the property underadministration.2) Cannot borrow money without authority of the court.3) Cannot peculate with funds underadministration.4) Cannot lease the property underadministration for more than 1 year.





5) Cannot continue the business of thedeceased unless authorized by the court.6) Cannot profit by the increase/decrease inthe value of the property under administration.

POWERS OF A NEW EXECUTOR/ADMINISTRATOR(AFTER THE FIRST RESIGNS, IS REMOVED, ORREVOKED)

1) Collect and settle the estate notadministered.2) Prosecute/defend actions commenced by oragainst the former executor/administrator.3) Recover execution on judgments in thename of former executor/administrator.

BOND• A bond is necessary. Even if the testatorprovides that the executor shall serve without abond, the court may still require the executorto give a bond, but the only condition whichattaches to the bond is the payment of thedebts of the testator. [Rule 81, Sec. 2

]• Additional bond may be required:

1) When there is a change incircumstances of theexecutor/administrator or for othersufficient cause. [Rule 81, Sec. 2

]2) In case of sale/mortgage/encumbranceof the property of the estate conditionedthat the administrator/executor account forthe proceeds of the sale or encumbrance.[Rule 89, Sec. 7(c)]

• For joint executors and administrators: Thecourt may take separate bonds from each or a

joint bond from all. [Rule 81, Sec. 3

]

ACCOUNTABILITY AND COMPENSATIONOF EXECUTORS AND ADMINISTRATORS

ACCOUNTABILITY FOR THE ENTIRE ESTATE:

• The executor/administrator is accountablefor the entire estate of the deceased.However, he is not accountable for propertieswhich never came to his possession. [Rule 85,Sec. 1] • However, he would still be liable forproperties which never came to his possessionif through unfaithfulness to the trust or his ownfault or lack of necessary action, the

executor/administrator failed to recover part of the estate which came to his knowledge.• Generally, the executor/administrator is notliable for debts due the estate which are notyet paid; unless it remained uncollectedbecause of his fault. [Rule 85, Sec. 1

]• Income from realty when used by theadministrator/executor: The administrator shallaccount for it as may be agreed upon by himand the parties interested, or adjusted by thecourt with their assent. If the parties do notagree upon the sum to be allowed, the samemay be ascertained by the court whosedetermination shall be final. [Rule 85, Sec. 4

]• Neglects or delays to raise or pay money:The administrator shall be liable therefore onhis bond. [Rule 85, Sec. 5]

EXPENSES OF ADMINISTRATION• Expenses necessary for the management of the property, for protecting it againstdestruction or deterioration, and possibly forthe production of fruits.

COMPENSATION TO EXECUTOR/ADMINISTRATOR[Rule 85, Sec. 7]

• That provided by the will is controlling.• However, if there is no compensationprovided, the compensation shall be either:

1) P4/day for the time actually and

necessarily employed;

2) Commission upon the value of somuch of the estate as comes into hispossession and finally disposed of by him;3) 2% of the first P5K, 1% in excessof P5K up to P30K, ½% in excess of P30Kup to P100K, and ¼% in excess of P100K.

• For 2 or more executors/administrators:The compensation shall be apportioned amongthem by the court according to the servicesactually rendered by them respectively.• Charge of legal fees rendered byexecutor/administrator to the estate: Notallowed.

RENDER OF ACCOUNT• Within 1 year from receiving letterstestamentary/letters of administration. [Rule85, Sec. 8

]• The court also may examine theexecutor/administrator upon oath as to anymatter relating to the account rendered by him.[Rule 85, Sec. 9

]• Before the account is allowed, notice shallbe given to interested persons in order forthem for examination. [Rule 85, Sec. 10

]

REVOCATION OF ADMINISTRATION;DEATH/RESIGNATION/REMOVAL OF

ADMINISTRATORS AND EXECUTORS

ROLE OF ADMINISTRATOR IF A WILL ISDISCOVERED

• If the letters of administration have beengranted because of the belief that the decedenthad died intestate, and then a will is discoveredand allowed by the court, the administrationshall be revoked and the administrator shallsurrender the letters of administration to thecourt and render his account of administration.

• It is within the court’s discretion on WONthe intestate proceeding should be discontinued

and a new proceeding should be constituted.• The discovery of a will does not ipso factonullify the administration unless the will hasbeen proved and allowed. [De Parreño v

Aranzanso]

• Acts of the administrator done before hisremoval/resignation/revocation are valid unlessproven otherwise. [Rule 82, Sec.3

]

GROUNDS FOR REMOVAL OFEXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2]

1) Neglect to render accounts (within 1year when the court directs).

2) Neglect to settle estate according to theROC.3) Neglect to perform an order/judgmentof the court or a duty expressly provided by theROC.4) Absconding.5) Insanity or incapacity or unsuitability todischarge the trust

viii. CLAIMS AGAINST THEESTATE





STATUTE OF NON-CLAIMS

• Definition: Period fixed by the ROC for thefiling of claims against the estate forexamination and allowance. The Statute of Non-Claims applies only to claims that do not

survive.

PERIOD FOR CLAIMS [Rule 86, Sec. 2

]

• General rule: Within the time fixed in thenotice which shall not be more than 12 monthsnor less than 6 months after the date of thefirst publication. Otherwise, the claims arebarred forever.• Even if the testator acknowledged the debt

in his will and instructed the executor topay such debt, the Statute of Non-Claimsmust still be complied with.

• Exception: BELATED CLAIMS – Claims

not filed within the original period fixed bythe court. On application of a creditor whohas failed to file his claim within the timepreviously limited, at any time before anorder of distribution is entered, the courtmay, for cause shown and on such termsas are equitable, allow such claim to befiled not exceeding 1 month from the orderallowing belated claims (the order may bein open court or not).

• The Statute of Non-Claims and the Statuteof Limitations must concur in order for acreditor to collect.

• A creditor barred by the Statute of Non-

Claims may file a claim as a counterclaim inany suit that the executor or administratormay bring against such creditor.

CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5

]1) Money claims, debts incurred by thedeceased during his lifetime, arising fromcontract:

a) Express or implied;b) Due or not due;c) Absolute or contingent.

2) Claims for funeral expenses or for the lastillness of the decedent.3) Judgment for money against decedent.

• However, a creditor barred by the statuteof non-claims may file a claim as acounterclaim in any suit that the executor oradministrator may bring against such creditor.

NOTICE REQUIREMENT IN CLAIMING AGAINST THEESTATE:

1) The court, after granting letterstestamentary/letters of administration, mayimmediately issue notices to creditors to filetheir claims.2) This notice must be published for 3successive weeks in a newspaper of general

circulation and province, and post the same in4 public places in the province and 2 publicplaces in the municipality where the decedentlast resided.3) Within 10 days after the notice has beenpublished and posted in accordance with thepreceding section, the executor/administratorshall file or cause to be filed in the court aprinted copy of the notice accompanied with anaffidavit setting forth the dates of the first and

last publication thereof and the name of thenewspaper in which the same is printed.

SOLIDARY OBLIGATION OF DECEDENT

• The claim shall be filed against thedecedent as if he were the only debtor, without

prejudice to the right of the estate to recovercontribution from the other debtor. [Rule 86,Sec. 6

]

• If the obligation of the decedent is jointwith another debtor: The claim shall beconfined to the portion belonging to him. [Rule86, Sec. 6

]

MORTGAGE DEBT DUE FROM ESTATE

• Remedies of a creditor holding a claimagainst the deceased secured by a mortgage orother collateral security: [Rule 86, Sec. 7

]

1) ABANDON the security and prosecute hisclaim against the estate and share in thegeneral distribution of the assets of theestate.

2) FORECLOSE his mortgage or realize uponhis security by action in court making theexecutor or administrator a party defendantand if there is judgment for deficiency, hemay file a claim (contingent) against theestate within the Statute of Non-Claims.

3) RELY SOLELY ON HIS MORTGAGE andforeclose (judicial or extrajudicial) thesame at anytime within the period of theStatute of Limitations but he cannot be

admitted as creditor and shall receive noshare in the distribution of the other assetsof the estate.

• These remedies are alternative; theavailment of one bars the availment of theother remedies.

EXECUTOR’S/ ADMINISTRATOR’S CLAIMAGAINST THE ESTATE

• If executor/administrator has a claim: Heshall give notice to the court in writing and thecourt thereafter shall appoint a specialadministrator. [Rule 86, Sec. 8

]

PROCESS FOR CLAIMS [Rule 86, Sec. 10

]

1) Deliver the claim with the necessaryvouchers to the clerk of court.2) Serve a copy thereof on theexecutor/administrator.3) If the claim is due, it must be supported byaffidavit stating the amount due and the factthat there has been no offsets.4) If the claim is not due or contingent, itmust be accompanied by an affidavit statingthe particulars thereof.

5) Executor must file his answer to the claimwithin 15 days after service of a copy of theclaim.

• Answer should contain:

• Either admit or deny the claim andset forth the substance of the matterswhich are relied upon to support suchadmission or denial.• If the executor/administrator hasno knowledge sufficient to enable him





to admit or deny specifically, he shallstate such want of knowledge.• The answer must also set forthclaims which the decedent has againstthe claimant or else it will forever bebarred.

• A claim admitted by theexecutor/administrator may be opposed byan heir/legatee/devisee. [Rule 86, Sec. 11

]• The court may refer contested claims to a

commissioner. [Rule 86, Sec. 12

]

APPEAL FROM JUDGMENT ON A CLAIMAGAINST ESTATE

• Judgment is appealable like in ordinarycases.

• A judgment against executor/administratorshall be that he pay the amount ascertained tobe due and shall not create any lien upon theproperty of the estate, or give the judgmentcreditor any priority of payment. [Rule 86, Sec.13]• The mode of appeal is record on appeal andmust be filed within 30 days from notice of

judgment.

• When the executor /administrator admitsand offers to pay part of a claim, and theclaimant refuses to accept the amount offeredin satisfaction of his claim, if he fails to obtain amore favorable judgment, he cannot recovercosts, but must pay to theexecutor/administrator costs from the time of the offer. Where an action commenced against

the deceased for money has been discontinuedand the claim embraced therein presented as inthis rule provided, the prevailing party shall beallowed the costs of his action up to the time of its discontinuance. [Rule 86, Sec. 14]

ix. ACTIONS BY OR AGAINSTEXECUTORS/ADMINISTRATORS

• Heirs may not sue theexecutor/administrator for recovery of property

left by the decedent until there is an order of the court assigning such lands to such heir oruntil the time for paying debts has expired.[Rule 87, Sec. 3

]

CLAIMS THAT SURVIVE

• CLAIMS THAT SURVIVE - Actions thatmay be commenced directly against theexecutor and administrator. [Rule 87, Sec. 1

]1) Recovery of real/personal property (or any

interest therein) from the estate.2) Enforcement of a lien thereon.3) Action to recover damages arising from

tort.

CLAIMS THAT DO NOT SURVIVE [Rule 86,Sec. 5]

1) Money claims, debts incurred by thedeceased during his lifetime arising fromcontract:

a) Express or implied;b) Due or not due;

c) Absolute or contingent.2) Claims for funeral expenses or for the lastillness of the decedent.3) Judgment for money against decedent.

PROCEEDINGS ON MORTGAGE DUEESTATE

• Executor/administrator can foreclose amortgage belonging to the decedent. [Rule 87,Sec. 5

]

PROCEEDINGS WHERE PROPERTY CONCEALED,EMBEZZLED, OR FRAUDULENTLY CONVEYED

• Concealment/embezzlement/conveyanceaway any of the property of the deceased: Thecourt may cite such suspected person toappear before it and examine him on oath onthe matter of such complaint. [Rule 87, Sec. 6]

• If the suspected person refuses to appear

or to answer questions asked him during theexamination, the court may punish him forcontempt and may commit him to prison untilhe submits to the order of the court. [Rule 87,Sec. 6

]

• If even before the granting of the letterstestamentary/letters of administration, suchperson shall be liable for double the value of the property sold, embezzled, or alienated tobe recovered for the benefit of the estate.[Rule 87, Sec. 8]If decedent who fraudulently conveys theproperty to defraud creditors and there is adeficiency of assets in the hands of the

administrator: Executor/administrator maycommence and prosecute an action for therecovery of such property for the benefit of credits BUT he shall not be bound to commencethe action unless either: [Rule 87, Sec. 9]

1) The creditors making theapplication pay such part of the costs andexpenses;2) Give security therefore to theexecutor/administrator.

• Requisites before creditor may bring action[Rule 87, Sec. 10

]

1. There is a deficiency of assets in the hands

of an executor/administrator for thepayment of debts and expenses of administration.

2. In his lifetime, the deceased had made or

attempted to make a fraudulentconveyance of his property or had soconveyed such property that by law, theconveyance would be void as against othercreditors.

3. The subject of the attempted conveyance

would be liable to attachment in hislifetime.

4. The executor/administrator has shown no

desire to file the action or failed to institutethe same within a reasonable time.

5. Leave is granted by the court to the

creditor to file the action.

6. A bond is filed by the creditor.

7. The action by the creditor is in the name of

the executor/administrator.• The last 3 requisites are unnecessarywhere the grantee is theexecutor/administrator himself, in which event,





the action should be in the name of all thecreditors.

PROCEEDINGS WHERE PROPERTYENTRUSTED BY EXECUTOR/ADMINISTRATION TO 3RD PERSON [Rule87, Sec. 7]

• Complaint of executor/administratoragainst person entrusted with estate: The courtmay require such person entrusted with theestate to appear before it and render a fullaccount of all property which came into hispossession.

• Refusal to appear or give an accountingmay be punished with contempt.

x. PAYMENT OF DEBTSOF THE ESTATE

IF ESTATE IS SUFFICIENT

• General rule: The payment of the debts of the estate must be taken: (a) from the portionor property designated in the will; (b) from thepersonal property; and (c) from the realproperty, in that order. If there is still adeficiency, it shall be met by contributions bydevisees, legatees, or heirs who have been inpossession.[Rule 88, Sec. 2, 3 and 6

]

• Exception: Instances when realty can becharged first:

1) When the personal property is

not sufficient. [Rule 88, Sec. 3

]2) Where the sale of suchpersonalty would be detriment of theparticipants (everyone) of the estate.[Rule 88, Sec. 3]3) When sale of personal propertymay injure the business or interests of those interested in the estate. [Rule89, Sec. 2

]4) When the testator has notmade sufficient provision for paymentof such debts/expenses/legacies. [Rule89, Sec. 2]5) When the decedent was, in his

lifetime, under contract, binding in law,to deed real property to beneficiary.[Rule 89, Sec. 8

]6) When the decedent during hislifetime held real property in trust foranother person. [Rule 89, Sec. 9]

• Requisites for exception to ensue:1) Application byexecutor/administrator;2) Written notice to personsinterested;3) Hearing.

• The same principles apply if the debt of theestate is in another country.• The court may authorize anexecutor/administrator tosell/mortgage/encumber real estate acquiredby him on execution or foreclosure sale, underthe same circumstances and under the sameregulations as prescribed in this rule for thesale/mortgage/encumbrance of other realestate.• If testator orders the payment of a debt hebelieves he owes but does not in fact owe: The

disposition shall be considered as not written. If as regards a specified debt more than theamount thereof is ordered paid, the excess isnot due, unless a contrary intention appears.• Order of the sale of personal property:[Rule 89,Sec. 1

]1) To pay the debts and expenses of

administration;2) To pay legacies;3) To cover expenses for the preservation of

the estate.

EXCEPTIONS;SALE/MORTGAGE/ENCUMBRANCE OFREALTY EVEN IF PERSONALTY ISSUFFICIENT TO PAY DEBTS

WHEN REALTY IS CHARGED FIRST1) When the personal property is notsufficient. [Rule 88, Sec. 3

]2) Where the sale of such personalty would be

detriment of the participants (everyone) of theestate. [Rule 88, Sec. 3]3) When sale of personal property may injurethe business or interests of those interested inthe estate. [Rule 89, Sec. 2

]4) When the testator has not made sufficientprovision for payment of suchdebts/expenses/legacies. [Rule 89, Sec. 2]5) When the decedent was, in his lifetime,under contract, binding in law, to deed realproperty to beneficiary. [Rule 89, Sec. 8

]6) When the decedent during his lifetime heldreal property in trust for another person. [Rule89, Sec. 9

]

REGULATIONS FOR GRANTING AUTHORITY TOSELL/MORTGAGE/ENCUMBER ESTATES [Rule 89,Sec. 7]

1) The executor/administrator shall file awritten petition setting forth the debts duefrom the deceased, the expenses of administration, the legacies, the value of thepersonal estate, the situation of the estateto be sold/mortgaged/encumbered, and suchother facts as show that thesale/mortgage/encumbrance is necessary orbeneficial;2) The court shall thereupon fix a time

and place for hearing such petition, and causenotice stating the nature of the petition, thereason for the same, and the time and placeof hearing, to be given personally or by mail tothe persons interested, and may cause suchfurther notice to be given, by publication orotherwise, as it shall deem proper;3) If the court requires it, theexecutor/administrator shall give an additionalbond, in such sum as the court directs,conditioned that such executor/administratorwill account for the proceeds of thesale/mortgage/encumbrance;4) If the requirements in the preceding

subdivisions of this section have been compliedwith, the court, by order stating suchcompliance, may authorize theexecutor/administrator tosell/mortgage/encumber, in proper cases, suchpart of the estate as is deemed necessary, andin case of sale the court may authorize it to bepublic or private, as would be most beneficialto all parties concerned. The





executor/administrator shall be furnished witha certified copy of such order;5) If the estate is to be sold at auction,the mode of giving notice of the time and placeof the sale shall be governed by the provisionsconcerning notice of execution sale;6) There shall be recorded in the registryof deeds of the province in which the realestate thus sold/mortgaged/encumbered issituated, a certified copy of the order of thecourt, together with the deed of theexecutor/administrator for such real estate,which shall be as valid as if the deed had beenexecuted by the deceased in his lifetime.

• If sale/mortgage/encumbrance of theproperty of the decedent prevented by aninterested person: That person can give abond, in a sum fixed by the court, conditionedto pay the debts, expenses of administration,and legacies, and such bond shall be for the

security of the creditors, as well as of theexecutor/administrator, and may be prosecutedfor the benefit of either. [Rule 89, Sec. 3

]

• Effect if the sale, mortgage, orencumbrance of the decedent’s property isdone without notice: Void. Since the heirs arethe presumptive owners, they succeed to therights and obligations of the deceased at themoment of the latter’s death, and are thepersons directly affected by the sale/mortgageand therefore cannot be deprived of theproperty, except in the manner provided bylaw. [ Maneclang v. Baun

]

PAYMENT OF CONTINGENT CLAIMS [Rule88, Sec. 4]

• CONTINGENT CLAIM – Claim that issubject to the happening of a future uncertainevent.

• If the court is satisfied that a contingentclaim duly filed is valid, it may order theexecutor/administrator to retain in his handssufficient estate to pay such contingent claimwhen the same becomes absolute, or, if theestate is insolvent, sufficient to pay a portionequal to the dividend of the other creditors.

• Requisites for the estate to be retained tomeet contingent claims: 1) Contingent claim is duly filed within the 2

year period allowed for the creditors topresent claims;

2) Court is satisfied that the claim is valid;3) The claim has become absolute.

• If contingent claim that is not presentedafter becoming absolute within the 2 yearperiod allowed: The assets retained in thehands of the executor/administrator, notexhausted in the payment of claims, shall bedistributed by the order of the court to the

persons entitled to the same; but the assets sodistributed may still be applied to the paymentof the claim when established, and the creditormay maintain an action against the distributeesto recover the debt, and such distributees andtheir estates shall be liable for the debt inproportion to the estate they have respectivelyreceived form the property of the deceased.

CONTRIBUTIVE SHARE OFDEVISEES/LEGATEES/HEIRS INPOSSESSION OF PORTIONS OF ESTATEFOR DEBTS

• If heirs have taken possession of portionsof the estate before the debts have been

settled, they shall become liable to contributefor the payment of debts and expenses, andthe court may, after hearing, settle the amountof their several liabilities, and order how muchand in what manner each person shallcontribute. [Rule 88, Sec. 6

]

PAYMENT IF ESTATE INSOLVENT OR ASSETS INSUFFICIENT

• If insufficient estate to pay all debts: Theexecutor/administrator shall pay the debtsaccording to the concurrence and preference of

credits provided by Art. 1059 and 2239-2251,CC. [Rule 88, Sec. 7

]

• After following the order of preference of credits, if all the creditors belonging to thatclass cannot be paid in full, then all of them willsuffer a reduction in proportion to that creditorsclaim No creditor of any one class shall receiveany payment until those of the preceding classare paid. [Rule 88, Sec. 8

]

• Estate of an insolvent non-residentdisposed of: His estate in the Philippines shallbe so disposed of that his creditors in andoutside the Philippines may receive an equal

share, in proportion to their respective credits.[Rule 88, Sec. 9

]

• Claim proven outside the Philippinesagainst an insolvent resident’s estate paid:Claims proven outside the Philippines wherethe executor had knowledge and opportunity tocontest its allowance therein may be added tothe list of claims in the Philippines against theestate of an insolvent resident and the estatewill be distributed equally among thosecreditors. The claims of foreign creditorsagainst insolvent non-residents and againstinsolvent residents would not be able torecover from the estate if there is no

reciprocity with that creditor’s country grantingthe same benefit to Filipinos. [Rule 88, Sec.10

]

• However, the benefit of this and the pre-ceding sections shall not be extended tothe creditors in another country if theproperty of such deceased person therefound is not equally apportioned to thecreditors residing in the Philippines and theother creditors, according to theirrespective claims.

ORDER OF PAYMENT OF DEBTS

• Before the expiration of the time limited forthe payment of debts (1 year, but may beextended), the court shall order the paymentthereof. [Rule 88, Sec. 11]

• The court may suspend the order for thepayment of debts or may order the distributionif an appeal is taken, among the creditorswhose claims are definitely allowed, leaving inthe hands of the executor/administrator





sufficient assets to pay the claim disputed andappealed. [Rule 88, Sec. 12]

TIME FOR PAYMENT OF DEBTS ANDLEGACIES; PERIOD FOR SUCCESSOR OFDECEASED ADMINISTRATOR/EXECUTOR [Rule 88, Sec. 15 and 16

]

• Need not exceed 1 year in the firstinstance; but court may extend on applicationof executor/administrator and after hearing andnotice thereof.• Extension must not exceed 6 months forsingle extension. The whole period allowed tothe original executor/administrator shall notexceed 2 years.• The successor of deadexecutor/administrator may be allowed anextension not to exceed 6 month.

xi. SALES ANDCONVEYANCE OFPERSONALTY/REALTYFOR OTHER REASONS

WHEN BENEFICIAL TO INTERESTEDPERSONS

• Authorization of sale as beneficial tointerested persons: [Rule 89, Sec. 4]

1) Upon application by theexecutor/administrator and on notice tointerested persons (heirs/devisees, etc.),

the court may authorize theexecutor/administrator to sell the whole orpart of the estate.2) Authority shall not be granted if inconsistent with the provisions of a will.The proceeds of such sale shall be assignedto the persons entitled to the estate in theproper proportions.

CONVEYANCE OF REALTY WHICHDECEASED CONTRACTED TO CONVEYDURING LIFETIME

AUTHORIZATION OF CONVEYANCE OF REALTY

WHICH DECEASED CONTRACTED TO CONVEY [Rule88, Sec. 8]

• If the decedent was in his lifetime undercontract, binding in law, to deed real propertyon an interest therein, the court may authorizethe executor/administrator to convey suchproperty according to such contract, or withsuch modifications as are agreed upon by theparties and approved by the court.• If the property is to be conveyed to theexecutor/administrator, it is the clerk of courtwhich shall execute the deed.

PROCEDURE• There should be an application for suchpurpose and notice should be given to theinterested persons and such further notice, bypublication or otherwise, as the court deemsproper. [Rule 89, Sec. 8

] • While Rule 89, Sec. 8 does not specify who

should file the application, it stands toreason that the proper party must be onewho is to be benefited/injured from the

judgment or one who is entitled to the

avails of the suit (i.e. even people not theexecutor/administrator can file theapplication). [Heirs of Spouses Sandejas v.Lina

]

CONVEYANCE OF REALTY WHICHDECEASED HELD IN TRUST

• Authorization of conveyance of realty whichthe deceased held in trust: Following the noticerequirement required as in the case where thedecedent was under contract to convey realty,the court may allow the executor/administratorto deed such property to the person for whoseuse and benefit the property was held. Thecourt may order the execution of such trustwhether by deed or by law. [Rule 89, Sec. 9

]

xii. PARTITION ANDDISTRIBUTION OFESTATE

WHEN ORDER FOR DISTRIBUTION OFRESIDUE IS MADE

• General rule: Order of distribution shall bemade after payment of all debts, funeralexpenses, expenses for administration,allowance of widow, and inheritance taxes.[Rule 90, Sec. 1

]• Exception: If the distributes or any of

them gives a bond conditioned for thepayment of said obligation, the order of distribution may be made even before thepayment of the debts and expenses.

• Title to the property is vested from thefinality of the order of distribution. An orderwhich determines the distributive share of heirsis appealable. If not appealed, it becomesfinal.

PROCEDURE [Rule 90, Sec. 1, 2 and 4

]

1) There should be an application by theexecutor/administrator or any personinterested in the estate.2) The requirements for notice and hearingmust be fulfilled.3) Certified copies of final orders and

judgments of the court relating to the realestate or the partition thereof shall be recordedin the registry of deeds of the province wherethe property is situated.4) The final order of the court as to questionson advancement shall be binding on the personraising the questions and on the heir.

EXPENSES OF PARTITION [Rule 90, Sec. 3

]

• General rule: If there are sufficient effectsin the hands of the executor/administrator, andif it not inconsistent with the intention of the

testator, then such may be applied for thepayment of the expenses of partition.• Exception: If it cannot be paid by the

executor/administrator, it should be paidby the parties in proportion to theirrespective shares or interest in the estate,and the apportionment shall be settled andallowed by the court.

• Person interested in the partition does notpay his proportion/share of the expenses of partition, the court may issue an execution





in the name of the executor/administratoragainst him.

REMEDIES AGAINST JUDGMENT OFPARTITION

• Partition may be set aside only if interested

party is left out by reason of circumstancesbeyond his control or mistake/inadvertence notimputable to negligence.• Remedies: Motion to reopen within the 30-day reglementary period; then appeal from theorder of denial (the latter is not an independentaction.

•Since it is a proceeding in rem, allinterested persons have constructive notice,and jurisdiction of probate court is exclusive.

Non-distribution of estate is not a ground forreopening. Remedy for such case is a motion forexecution, or, if beyond the reglementary period, aseparate action for recovery of shares.

III.GUARDIANSHIP

PROCEDURE FOR GUARDIANSHIP UNDER RULES 92-97

DEFINITION

KINDS OF GUARDIANS [Regalado

]

1) LEGAL GUARDIAN – Deemed as guardian

by provision of law, without need of courtappointment. [Art. 320, CC; Art. 225, FC

]

2) GUARDIAN AD LITEM – Appointed by the

courts of justice to prosecute or defend aminor, insane or person declared to beincompetent, in a court action.

3) JUDICIAL GUARDIAN – Appointed by thecourt in pursuance to law, as guardian forinsane persons, prodigals, minor heirs ordeceased war veterans and other incompetentpersons.

a) Guardian over the person;b) Guardian of the property;

c) GENERAL GUARDIAN – Has

custody and care of the ward’s person andproperty.

BASIS

• It is the State’s duty to protect the rights of

persons/individuals who because of age/incapacity are in an unfavorable positionvis-à-vis other parties. This parens patriae isinherent in the supreme power of the State. Itis a most beneficent function and oftennecessary to be exercised in the interest of humanity and for the prevention of injury tothose who cannot protect themselves. [Nery v.Lorenzo, (1972)

]


Petition for the appointment of a guardian

Court order fixing the hearing of the petition

Notice of the hearing

Hearing and appointment of the guardian

Service of judgment on the local civil registrar

Filing of bond by the guardian

Termination of guardianship




NECESSITY

• Jurisdiction over an incompetent’s personcannot be had unless a guardian was appointedupon whom summons and notice of theproceedings may be served. [Gorostiaga v.Sarte]

SCOPE AND APPLICABILITY

• Rules 92-97 have been amended by AM-03-02-05-SC (April 1, 2003). Guardianship of incompetents who are not minors continues tobe under the jurisdiction of the regular courtsand governed by Rules 92-97. Guardianship of minors, however, is now governed by AM-03-02-05-SC. [Regalado]

• In a guardianship case, if an issue arises asto who has the better right/title to theproperties conveyed in the guardianshipproceedings, the issue should be threshed out

in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. [Parco v.CA (1982)

] However, where the ward’sright/title to the property is clear andindisputable, the guardianship court may issuean order directing its delivery/return. [Pacientev. Dacuycuy (1982)]

INCOMPETENTS [Rule 92, Sec. 2

]

1) Persons suffering the penalty of civilinterdiction;2) Hospitalized lepers;3) Prodigals;

4) Deaf and dumb who are unable to read andwrite;5) Those who are of unsound mind, eventhough they have lucid intervals;6) Persons not being of unsound mind, but byreason of age, disease, weak mind, and othersimilar causes, cannot, without outside aid,take care of themselves and manage theirproperty, thereby becoming an easy prey fordeceit and exploitation.

TRANSFER OF VENUE [Rule 92, Sec. 3]

• The court taking cognizance of a

guardianship proceeding may transfer the sameto the court of another province/municipalitywherein the ward has acquired real property, if he has transferred thereto his bona-fideresidence. The latter court shall have full

jurisdiction to continue the proceedings,without requiring payment of additional courtfees.

PETITION FOR APPOINTMENT OF AGUARDIAN

WHO MAY PETITION

1) For resident incompetents: [Rule 93, Sec.

1]a) Any relative/friend/person onbehalf of the incompetent who has noparent or lawful guardian;b) Health Secretary, in favor of:

(1) an insane person whoshould be hospitalized;(2) an isolated leper.

2) For non-resident incompetents: [Rule 93,

Sec. 6

]

a) Any relative/friend;b) Anyone interested in theincompetent’s estate.

• If the interested person is acreditor and mortgagee of the ward’sestate, he cannot be appointedguardian of the ward’s person and

property. No man can serve twomasters. [Garchitorena v. Sotelo]

PETITION’S CONTENTS [Rule 93, Sec. 2]1) Jurisdictional facts;2) Incompetency rendering the appointmentnecessary/convenient;3) Names/ages/residences of theincompetent’s relatives, and of the personshaving him in their care;4) Estate’s probable value and character;5) Name of the person for whom letters of guardianship are prayed.

• The petition shall be verified; but no defectin the petition or verification shall render voidthe issuance of letters of guardianship. [Rule93, Sec. 2

]

HEARING

• When a petition is filed, the court shall fix atime and place for hearing. The court shallcause notice to be given to the personsmentioned in the petition residing in theprovince, including the incompetent himself.[Rule 93, Sec. 3]

• Notice to the ward’s relatives is a jurisdictional requirement. [Yangco v. CFI]

OPPOSITION [Rule 93, Sec. 4]

• Any interested person may file a writtenopposition and pray that:

1) Petition be dismissed;2) Letters of guardianship issue tohimself or to any suitable person named inthe opposition.

• Grounds for opposition:1) Competency of the alleged incompetent;2) Unsuitability of the person for whom letters

are prayed.

CONSIDERATIONS IN THE CHOICE OF THEGUARDIAN [Francisco v. CA (1984)

]• The court may consider the financialsituation, the physical condition and sound

judgment, prudence and trustworthiness, themorals, character and conduct, and the presentand past history of a prospective appointee, aswell as the probability of his being able toexercise the powers and duties of a guardianfor the full period during which guardianshipwill be necessary.

• The courts should not appoint as aguardian any person who is not personallysubject to their jurisdiction (e.g. non-residents). [Guerrero v. Teran]

• The best interests of a ward can overrideprocedural rules and even the rights of parentsto the custody of their children.

• A person who is incompetent to act as anexecutor/administrator does not necessarilyneed to be placed under guardianship. But if aperson is incompetent to act as executor or





administrator, then he is not the incompetentperson envisaged in the law of guardianship.[Lopez Vda. De Baluyot v. Ines-Luciano(1976)

]

GUARDIAN’S APPOINTMENT

• The alleged incompetent must be present

at the hearing, if able to attend. It must also beshown that the required notice was given. Thecourt shall then hear parties’ evidences. If theperson in question is an incompetent, the courtshall appoint a suitable guardian of hisperson/estate/both. [Rule 93, Sec. 5

]

• The guardian’s appointment is good untilset aside; and, despite and appeal therefrom,the guardian can do what is necessary (undercourt’s direction) for the protection of theward/estate. [Zafra-Sarte v. CA (1970)

]

SERVICE OF JUDGMENT

• The final order or judgment shall be servedupon the civil registrar of the municipality/citywhere the incompetent resides or where hisproperty is situated. [Rule 93, Sec. 8

]

GUARDIAN’S BOND

• Before an appointed guardian enters uponthe execution of his trust, or letters of guardianship issue, he shall give a bond. [Rule94, Sec. 1

]

• Conditions on the bond: [Rule 94, Sec. 1

]

1) To make and return,within 3 months, the estate’s inventory;2) To faithfully execute theduties of his trust, to manage and disposeof the estate according to ward’s bestinterests, and to provide for the ward’sproper care/custody/education;3) To account for the estateand all proceeds/interest derivedtherefrom;4) At the expiration of histrust, to settle his accounts with the courtand deliver the remaining estate to theperson lawfully entitled thereto;5) To perform all courtorders.

• In case of breach of the bond’s conditions,the bond may be prosecuted in the sameproceeding or in a separate action, for the useand benefit of the ward or of any person legallyinterested in the estate. [Rule 94, Sec. 3

]

NEW BOND

• Whenever necessary, the court may requirea new bond to be given by the guardian. Afternotice to interested persons, the sureties onthe old bond may then be discharged fromfurther liability when no injury will result tointerested parties. [Rule 94, Sec. 2

]

GUARDIAN’S GENERAL POWERS ANDDUTIES

1) To pay the ward's just debts out of:a) the personal estate and thereal estate’s income;

b) if insufficient, the real

estate (upon obtaining court order). [Rule96, Sec. 2

]

2) To settle all the ward’s accounts;

demand/sue/receive for all debts due the ward,or for the same and give discharges to thedebtor, on receiving a fair and just dividend of the estate and effects; and appear for the wardin all actions/proceedings, unless anotherperson is appointed for that purpose. [Rule 96,

Sec. 3]3) To manage the ward’s estate

frugally and without waste; apply theincome/profits to the comfortable and suitablemaintenance of the ward and his family; and if the income/profits are insufficient,sell/encumber the real estate (upon courtauthorization). [Rule 96, Sec. 4

]• If the guardian delegates his dutiesto another, he shall be responsible for theother’s actions in the premises and for anyresulting loss. [Zubeldia v. Hermanos]

• Exception: If he shows that heused reasonable care and discretion in

the manner of selecting those whom heemploys.

4) To render an inventory of the

ward’s estate within 3 months after hisappointment; and an inventory and accountannually after the appointment. [Rule 96, Sec.7]

• The inventory and account may becompelled upon the application of aninterested person.• The inventories and accounts shallbe sworn to by the guardian.• All the estate described in the firstinventory shall be appraised. The courtmay request the assistance of inheritancetax appraisers.• If any property of the ward notincluded in an inventory already rendered isdiscovered/acquired by the ward, likeproceedings shall be had for inventory andappraisement within 3 months.

5) The court may authorize the

guardian to join in an assent to an estatepartition held by the ward jointly or in commonwith others. The authority shall only be grantedafter hearing, notice to the ward’s relatives,and a careful investigation as to the proposed

action’s necessity/propriety. [Rule 96, Sec. 5

]6) Upon complaint of the

guardian/ward or any person interested in theward’s estate, that anyone is suspected of having embezzled/concealed/conveyed awayany of the ward/estate’s property, the courtmay cite the suspected person to appear forexamination and may order to secure theestate. [Rule 96, Sec. 6

]

• Purpose: To secure evidence from personssuspected of embezzling, concealing orconveying away any property of the wardso as to enable the guardian to institute theappropriate action to obtain possession of and secure title to the property. [Cui v.Piccio]

7) Upon the expiration of a year from

his appointment, and as often thereafter asrequired, the guardian must present hisaccount to the court for settlement andallowance. [Rule 96, Sec. 8]• A non-parent guardian is allowed the

amount of his reasonable expensesincurred in the execution of his trust, plus





just compensation for his services, notexceeding 15% of the ward’s net income.

• Extra allowance may be made ineach case as the importance anddifficulty of the management of theestate may require. [Ramos v. PNB(1957)

]

• A guardian may be imprisoned for failure torender his account and ordered to deliverthe estate to his successor. [Doronila v.Lopez

]

SELLING/ENCUMBERING THE WARD’SPROPERTY

PETITION [Rule 95, Sec. 1

]

• Grounds for the petition:1) If the estate’s income is insufficientto maintain the ward and his family;2) If it appears that it is for the ward’sbenefit that his real estate (or part thereof)be sold/encumbered and the proceeds putout at interest or invested.

• The grounds enumerated in this section areexclusive. No order will be issued for anotherpurpose not found in this rule. Sale of theward’s realty without court order is void. [Intonv. Quintana

]

• The guardian may file a verified petitionwith the court which appointed him. Thepetition shall set forth the grounds, and prayfor authorization of the sale/encumbrance.

SHOW CAUSE ORDER [Rule 95, Sec. 2

]

• If it seems probable that thesale/encumbrance is necessary/beneficial, thecourt shall direct the ward’s next of kin and allinterested persons to appear and show causewhy the petition should not be granted.

• Next of kin - Relatives whose relationshipsare such as to entitle them to shares in theestate as distributes. [Lopez v. Teodoro]

HEARING [Rule 95, Sec. 3

]

• At the time and place designated in theshow cause order, the court shall hearevidences and grant/refuse the petition’sprayer as the ward’s best interests require.

ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4

]

• After full examination, if it appears that it isnecessary/beneficial to the ward tosell/encumber the estate (or some portion of it), the court shall order the sale/encumbrance.• Contents of the order:1) That the proceeds be expended for the

maintenance of the ward and his family, orput out at interest, or invested;

2) Specific causes why the sale/encumbranceis necessary/beneficial;

3) May direct that estate be disposed of ateither public or private sale, subject toconditions on time and manner of paymentand security.

• The guardian’s original bond shall stand assecurity for the proper appropriation of thesale’s proceeds; but the judge may require anadditional bond as a condition for the grantingof the order of sale.• The order of sale cannot continue in forcefor more than 1 year without a sale being had.

• The court may authorize and require theguardian to invest the sale/encumbrance’sproceeds or the ward's money, for the bestinterest of all concerned. The court may makeother orders for themanagement/investment/disposition of theestate and effects. [Rule 95, Sec. 5

]

• This seeks to protect the ward’sfunds against imprudent or unsafeinvestments by the guardian. [PhilippineTrust Co. v. Ballesteros

]

• The guardian cannot acquire by purchase,even at a public or judicial auction, theproperty of his ward. [Art. 1491, CC

]

• If the authority to sell was obtained undersuspicious circumstances indicative of fraudand collusion, the guardian’s sale maysubsequently be annulled by the court.[Mendoza v. Labrador] However, thecancellation of the guardian’s authority to sell

will not affect the buyer’s rights. [Margate v.Rabacal]

• Appeal is the proper remedy against acourt order authorizing the sale of the ward’sproperty. [Lopez v. Teodoro (1950)

]

GUARDIANSHIP’S TERMINATION

GROUNDS FOR TERMINATION

1) If the incompetent is no longer

incompetent. [Rule 97, Sec. 1

]

• The person who was declaredincompetent, or his

guardian/relative/friend, may petition thecourt to have his present competency judicially determined.• The petition shall be verified byoath, and shall state that the subjectperson is then competent.• Upon receipt of the petition, thecourt shall fix the time for hearing, andcause notice to be given to the guardianand the ward.• On the trial, the guardian, therelatives and (court’s discretion) anyperson may contest the right to the relief demanded. Witnesses may be called and

examined by the parties or by the court. If it is found that the person is no longerincompetent, his competency shall beadjudged and guardianship shall cease.

2) If the incompetent dies.

3) If the guardian: [Rule 97, Sec. 2

]

a) becomes insane orincapable/unsuitable of discharging histrust;b) wasted/mismanaged theestate;c) failed for 30 days after it isdue to render an account or make a return;d) resigns.• Upon notice to the guardian, thecourt may remove him and compel him tosurrender the ward’s estate to the personlawfully entitled to it.

• An order removing a guardian is anorder constituting a final determination of his rights. Hence, the guardian may appeal.[Olarte v. Enriquez (1960)

]• A guardian may resign if it appearsproper to allow him.





• Upon the guardian’sresignation/removal, the court may appointanother in his place.

4) If it appears that the guardianship is no

longer necessary, the court may discharge theguardian. [Rule 97, Sec. 3

]

• The court which appointed the guardian isalso the court competent to decide the petitionfor restoration of to capacity. This is becausethe latter is merely a continuation of theoriginal guardianship proceeding. [Crisostomov. Endencia]

• Final orders or judgments on theguardianship’s termination shall be served uponthe civil registrar of the municipality/city wherethe incompetent resides or where his propertyis situated. [Rule 97, Sec. 5

]

GUARDIANSHIP OF NON-RESIDENT

INCOMPETENTS• The guardian of a nonresident’ estate hasmanagement of all the ward’s estate within thePhilippines. [Rule 96, Sec. 1

]

• Only the court which appointed the non-resident’s guardian has jurisdiction over theguardianship. [Rule 96, Sec. 1

]

• ANCILLARY GUARDIANSHIP -Guardianship in a state other than that inwhich guardianship is originally grantedand which is subservient and subsidiary tothe later. [Johannes v. Harvey

]

After filing of petition, notice and hearing, if thecourt is satisfied that the nonresident is anincompetent rendering a guardiannecessary/convenient, it may appoint a guardianfor the non-resident’s estate. [Rule 93, Sec. 6

]

IV. TRUSTEES

PROCEDURE FOR APPOINTMENT OFTRUSTEES UNDER RULE 98

DEFINITION

• The legal relationship between a personhaving an equitable ownership in the property

and another person owning the legal title to theproperty; the equitable ownership of the formerentitles him to performance of certain dutiesand the exercise of certain powers by thelatter. [Saltiga v. CA (1999)]

• DECLARATION OF TRUST – Act by whicha person acknowledges that the property, titleto which he holds, is held by him for the use of another. [De Leon v. Molo-Peckson (1962)

]


Allowance of the instrument creating the trust

Petition by the executor/administrator or theperson appointed as trustee in the instrument

Notice to all interested parties

Appointment of trustee by the court

Filing of bond by the trustee




PARTIES TO A TRUST [Regalado]1) Trustor2) Trustee3) Beneficiary (cestui que trust)

KINDS OF TRUST [Saltiga v. CA (1999)

]

1) EXPRESS – Created by parties’ direct and

positive acts; by some writing/wordsevidencing an intention to create a trust.

2) IMPLIED – Deducible from the nature of the

transaction as matters of intent; orsuperinduced on the transaction by operationof law as a matter of equity, independently of the parties’ particular intention.a) RESULTING TRUSTS – Based on equity

that valuable consideration (and not title)determines the equitable title/interest, andare presumed always to have beencontemplated by parties.

b) CONSTRUCTIVE TRUSTS – Created by

the construction of equity in order to satisfy

the demands of justice and prevent unjustenrichment. They arise contrary tointention against one who fraudulentlyobtains/holds the legal right to propertywhich he should not, in equity, hold.


• Rule 98 applies only to express trustsunder CC. [R egalado

]

• Express trust on an immovable, or interestsin it, may not be proved by parole evidence.[Art. 1443, CC

]

• While an implied trust may be establishedby parol evidence, an express trust cannot.Even then, an implied trust cannot beestablished upon vague and inconclusiveproof. [Heirs of Lorenzo Yap v. CA (1999)

]

• No particular words are required to createan express trust. It is sufficient that a trust isclearly intended. [Art. 1444, CC]

• The right creating/declaring a trust neednot be contemporaneous or inter-parties.An express trust may even be declared bya writing made after the legal estate hasvested in the trustee. The fact that an

express trust was created by a deed whichwas absolute on its face may be shown bya writing separate from the deed itself. [DeLeon v. Molo-Peckson (1962)

]

• A trust shall not fail because the trusteeappointed declines. [Art. 1445, CC

]

• Exception: The contrary appears in theinstrument constituting the trust.

• Beneficiary’s acceptance is necessary. Butif the trust does not impose any onerouscondition on the beneficiary, his acceptance ispresumed; Exception: If there is contraryproof. [Art. 1446, CC

]

• General rule: A voluntary trust isirrevocable without the consent of thebeneficiary. [De Leon v. Molo-Peckson (1962)

]

• Exception: If the power to revoke wasreserved.

VENUE [Rule 98, Sec.1

]

• If a trustee is necessary to carry into effecta will/instrument, the trustee shall beappointed by the RTC where:

1) the will was allowed; or2) the property was located.

TRUSTEE’S APPOINTMENT

• If testator omitted appointment of trustee,the court may appoint a trustee. That trusteeshall have the same rights, powers and dutiesas if he was appointed by the testator. [Rule98, Sec. 2]• The power to appoint a trustee isdiscretionary with the court, and the appellatecourt will decline to interfere except in cases of clear abuse. Thereafter, it is likewise thediscretion of the court to remove the trustee.[Tiangco v. Francisco]

SUCCESSOR TRUSTEES•

If the trustee declines/resigns/dies or isremoved before the trust’s objects areaccomplished, and there is no adequateprovision in the instrument creating the trust,the court may appoint a new trustee to actalone or jointly with others. That trustee shallhave the same rights, powers and duties as if he was originally appointed. The court mayorder former/remaining trustees to convey theestate to him. [Rule 98, Sec. 3]

• A person succeeding to a trust (as theformer trustee’s executor/administrator) is notrequired to accept the trust. [Rule 98, Sec. 2]

TRUSTEES APPOINTED ABROAD• TERRITORIALITY OF TRUSTEE’SAUTHORITY – The powers of a trusteeappointed by a Philippine court cannot extendbeyond the confines of the Philippine territory.• Proceedings if the trustee is appointedabroad:

• If trustee fails to comply with the courtorder, the court will declare the trust vacant

and appoint a new trustee. The trust shall vestin the new trustee as if he was originallyappointed.

TRUSTEE’S BOND [Rule 98, Sec.5]

• Before entering his duties, a trustee mustfile a bond with the COC in an amount fixed bythe court, payable to the Philippine government


Philippine land is held in trust for Philippineresidents, by a trustee who derives authority from

outside the Philippines

Petition filed in the RTC of the province where theland is situated

Notice to all interested parties

Trustee is ordered by the court to apply forappointment




and sufficient and available to protect any partyin interest.• Failure to file bond is considered asdecline/resignation of the trust.• Court may exempt from giving bond:

1) A trustee under a will, if thetestator so directed/requested; or2) Any trustee, if all personsbeneficially interested are of full age andrequest the exemption.

• The court may cancel the bond exemptionanytime; the trustee shall then file the bond.

TRUSTEE’S DUTIES

• Conditions upon the bond, WON written:[Rule 98, Sec. 6

]1) To make and return the estate’sinventory;

• Exception: If inventory wasalready filed, succeeding trustees neednot file.

• Court may order inheritance taxappraisers to assist in the appraisal of the estate. [Rule 98, Sec. 7

] 2) To manage the estate and faithfullydischarge his trust;3) To render an accounting underoath, once a year until the trust is fulfilled;

• Exception: If excused by the courtin any year.

4) To settle his accounts in court anddeliver the remaining estate to thoseentitle, at the trust’s expiration.

• It is the trustee’s duty to deliverthe properties to the beneficiary freefrom all liens and encumbrances. [DeLeon v. Molo-Peckson (1962)

]

TRUSTEE’S COMPENSATION

• If the trustee’s compensation is notdetermined in the instrument creating thetrust, it shall be fixed by the court. [Rule 98,Sec. 7]

TRUSTEE’S REMOVAL/RESIGNATION [Rule

98, Sec. 8]

• Grounds for removal of a trustee:1) If essential to the interests of theparty petitioning the removal;

• Requires petition of a beneficiallyinterested person, notice to trustee andhearing.

2) If trustee becomes insane orotherwise incapable/unsuitable of discharging the trust;

• Requires notice to all interestedparties.

3) If trustee assumes to be possessing

in his own right and thus renounces thetrust. [Martinez v. Grano]

• General Rule: A trustee cannotacquire the trust estate by prescriptionbecause for the purpose of prescription,the possession of the property by thetrustee is not an adverse possession,but only a possession in behalf of theowner of the same. [Palma v.Cristobal

]

• Exception: If there is anopen, clear and unequivocalrepudiation of the trust, and thebeneficiary knows of therepudiation. [Salinas v. Tuazon]

• A trustee may resign if it is proper for thecourt to allow him, whether the trustee was

ppointed by the court or by a will.

TRUSTEE VS.EXECUTOR/ADMINISTRATOR

Trustee Executor/Administrator

Holds an office of trust Holds an office of trustDuties may cover a widerrange, and are usuallygoverned by the intentionof the trustor or theparties (if established bycontract)

Duties are fixed and/orlimited by law

[Araneta v. Perez (1962)

]

ESTATE’S SALE/ENCUMBRANCE [Rule 98,Sec. 9]

• If estate’s sale/encumbrance isnecessary/expedient, court may order suchsale/encumbrance andreinvestment/application of the proceeds.

Proceedings shall conform as much as possible withthe provisions on a guardian’s sale/encumbrance of a ward’s properties.

Petition for domestic adoption

Order of hearing by the court

Child and home study reports by the social worker

Hearing on the petition for adoption

Supervised trial custody

Adoption decree issued by the court

V. ADOPTION

DEFINITION [Sec. 3, Rule on Adoption]





1) CHILD – Person below 18 years of age at the

time of the filing of the petition for adoption.

2) CHILD LEGALLY AVAILABLE FOR ADOPTION – Child who was in/voluntarilycommitted to DSWD or to a duly licensed andaccredited child-placing/child-caring agency,freed of the parental authority of his biological

parents, or in case of rescission of adoption, hisguardian/adopter.

3) VOLUNTARILY COMMITTED CHILD – One

whose parents knowingly and willinglyrelinquish parental authority over him in favorof DSWD.

4) INVOLUNTARILY COMMITTED CHILD – One

whose parents have been permanently and judicially deprived of parental authority overhim due to abandonment;substantial/continuous/repeated neglect andabuse; or incompetence to discharge parentalresponsibilities.

5) FOUNDLING – A deserted/abandonedinfant/child whose parents/guardian/relativesare unknown; or a child committed to anorphanage/institution with unknown facts of birth and parentage and registered in the CivilRegister as a “foundling.”

6) ABANDONED CHILD – One who has no

proper parental care or guardianship or whoseparents deserted him for at least 6 continuousmonths and was judicially declared as such.

7) DEPENDENT CHILD – One who is without a

parent/guardian/custodian, or whoseparents/guardian/custodian for good causedesires to be relieved of his care and custodyand is dependent upon the public for support.

8) NEGLECTED CHILD – One whose basic needs

have been deliberately unattended orinadequately attended to by hisparents/guardian.

9) CHILD STUDY REPORT – Study made by the

court social worker of the child’s legal status,placement history, psychological, social,spiritual, medical, ethno-cultural backgroundand that of his biological family needed indetermining the most appropriate placementfor him.

10) HOME STUDY REPORT – Study made by

the court social worker of the motivation andcapacity of the prospective adoptive parents toprovide a home that meets the needs of achild.

11) SUPERVISED TRIAL CUSTODY – Period

during which a social worker oversees theadjustment and emotional readiness of bothadopters and adoptee in stabilizing their filialrelationship.

12) SIMULATION OF BIRTH – Tampering of

the civil registry to make it appear in the birthrecords that a certain child was born to aperson who is not his biological mother, thus

causing such child to lose his true identity andstatus.

13) RESIDENCE – A person’s actual stay in the

Philippines for 3 continuous years immediatelyprior to the filing of a petition for adoption andwhich is maintained until the adoption decree isentered. Temporary absences for professional,business, health, or emergency reasons notexceeding 60 days in 1 year does not break thecontinuity requirement.

14) ALIEN – Any person, not a Filipino citizen,

who enters and remains in the Philippines andis in possession of a valid passport or traveldocuments and visa.

NATURE OF PROCEEDING

• Adoption is a juridical act which createdbetween two persons a relation similar to thatwhich results from legitimate filiation. [Prasnick v. Republic]

• Adoption is a privilege — not innate orfundamental, but rather a right created bystatute. It is a privilege which is governed bythe state’s determination of what is for the bestwelfare of the child. [Lahum v. Sibulo (2003)]

IN REM PROCEEDING

• Adoption is not an adversarial proceedingsince it has no particular defendant. [Republic

v. Elepano (1991)

]• No court may entertain it unless it has

jurisdiction over the parties and the res – thepersonal status of the parties.

• Constructive notice is enough where theresidence of the parents unknown. When theparent has abandoned the child to be adopted,notice to the former is not required. [Santos v.

Arazanso, (1966)

]

A. DOMESTIC ADOPTION

PROCEDURE FOR DOMESTIC ADOPTIONUNDER AM-02-6-02-SC


• The Rule on Adoption [AM-02-6-02-SC(July 31, 2002)] expressly repealed Rules 99and 100. [Sec. 25, Rule on Adoption]

• RA 8552 (Domestic Adoption Act) governsthe domestic adoption of Filipino children. [Sec.1, Rule on Adoption]

OBJECTIVES [Sec. 2, Rule on Adoption]

1) The child’s best interest is the paramountconsideration in the child’scare/custody/adoption.

2) The State shall provide alternative protectionand assistance to foundlings, neglected,orphaned and abandoned children.

QUALIFIED ADOPTERS [Sec. 4, Rule on Adoption]

1) 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) who is emotionally and psychologically

capable of caring for children;f) at least 16 years older than the adoptee;

• Exception: when the adopter is:





(1) the adoptee’s biologicalparent;(2) the spouse of the adoptee’sparent.

g) who is in a position to support and care forhis children in keeping with the means of the family.

2) Any alien:a) possessing the same qualificationsas Filipinos;b) whose country has diplomaticrelations with the Philippines;c) who has been living in thePhilippines for at least 3 continuous yearsprior to the filing of the petition foradoption and maintains such residence untilthe adoption decree is entered;d) certified by his diplomatic/consularoffice to have the legal capacity to adopt inhis country;e) whose government allows theadoptee to enter his country as his adoptedchild.

• Residency and certification requirements onalien may be waived for:

(1) a former Filipino citizen who seeksto adopt a relative within the 4thdegree of consanguinity/affinity;(2) one who seeks to adopt thelegitimate child of his Filipino spouse;(3) one who is married to a Filipinocitizen and seeks to adopt jointly withhis spouse a relative within the 4thdegree of consanguinity/affinity of theFilipino spouse.

3) The guardian with respect to the ward, afterthe termination of the guardianship andclearance of his financial accountabilities.

JOINT ADOPTION BY SPOUSES

• General rule: Husband and wife shall jointly adopt.• Exception:

1) If one spouse seeks to adopt thelegitimate child of the other spouse;2) If one spouse seeks to adopt hisown illegitimate child; provided theother spouse consented;

3) If the spouses are legallyseparated.

• If the spouses jointly adopt or one spouseadopts the illegitimate child of the other, jointparental authority shall be exercised by thespouses.

QUALIFIED ADOPTEES [Sec. 5, Rule on Adoption]

1) Any person below 18 years of age who wasvoluntarily committed to DSWD or judiciallydeclared available for adoption;

2) The legitimate child of one spouse, by the other

spouse;3) An illegitimate child, by a qualified adopter to

raise the status of the former to that of legitimacy;

4) A person of legal age regardless of civil status,if, prior to the adoption, said he wasconsistently considered and treated by theadopters as their own child since minority;

5) A child whose adoption was rescinded;

6) A child whose biological/adoptive parents died.But no proceedings shall be initiated within 6months from the time of the parents’ death;

7) A child not disqualified by law or these rules.

VENUE [Sec. 6, Rule on Adoption]

•

Family Court of the province/city where theprospective adoptive parents reside.

PETITION FOR ADOPTION

ALLEGATIONS COMMON TO ALL PETITIONS [Sec.7, Rule on Adoption]1) Adoptee’s first name, surname or names, age

and residence as shown by his birth record,baptismal/foundling certificate and schoolrecords;

2) That the adoptee is not disqualified by law;3) Adoptee’s estate’s value and character;4) First name, surname or names by which the

adoptee is to be known and registered in theCivil Registry.

SPECIFIC ALLEGATIONS [Sec. 7-10, Rule on Adoption]

specific allegations

If Filipino adopter a) Jurisdictional factsb) Adopter's qualificationsc) That adopter has

undergone pre-adoptionservices

If alien adopter a) Jurisdictional factsb) Adopter's qualifications

If guardian-adopter Adopter's qualifications

If foundling-adoptee Entries which should appearin the birth certificate

If petition also prays forchange of name

a) Child's registered nameb) Aliases or other names

by which the child hasbeen known

c) The full name by whichthe child is to be known

If petition for rectificationof simulated birth

a) That it is an applicationfor rectification of asimulated birth

b) That the simulation wasmade prior to theeffectivity date of RA8552, and that theapplication forrectificaion and thepetition for adoptionwere filed within 5 yearsfrom that date

c) That the petitioner madethe simulation for theadoptee's best interests

d) That the adoptee wasconsistently considered

and treated by petitioneras his own child





If petition for adoption of foundling, abandoned,dependent or neglectedchildren

a) Facts showing that thechild is a foundling,abandoned, dependentor neglected

b) Parents' names andresidence, if known, andtheir residence. If unknown, then those of the guardian

c) Name of the dulylicensed child-placementagency or individual whohas care and custody of the child

d) That the DSWD/agency isauthorized to give itsconsent

PETITION’S ANNEXES [Sec. 11, Rule on Adoption]1) Birth/baptismal/foundling certificate and school

records, showing adoptee’s name, age andresidence;

2) Affidavit of consent of:a) The adoptee, if 10 years of age or over;b) The child’s biological parents or legal

guardian, child-placement/child-caringagency or proper government agency;

c) The adopter’s and the adoptee’s legitimateand adopted children who are 10 years of age or over;

d) The adopter’s illegitimate children livingwith him who are 10 years of age or over;and

e) The adopter’s and the adoptee’s spouses.3) Child study report on the adoptee and his

biological parents;4) If petitioner is an alien, certification by his

diplomatic/consular office that he has the legalcapacity to adopt in his country and that hisgovernment allows the adoptee to enter hiscountry as his own adopted child unlessexempted under Sec.4(2);

5) Home study report on the adopters. If theadopter is an alien or residing abroad butqualified to adopt, the home study report by aforeign adoption agency duly accredited by theInter-Country Adoption Board; and

6) Decree of annulment, nullity or legal separationof the adopter and of the adoptee’s biologicalparents, if any.

ORDER OF HEARING [Sec. 12, Rule on Adoption]

• If the petition and attachments aresufficient in form and substance, the court shallissue an order.• Order’s contents:

1) Adoptee’s registered name in thebirth certificate, and the names by whichthe adoptee has been known (to be statedin the caption);2) Petition’s purpose;

3) Complete name which the adopteewill use if the petition is granted;4) Hearing’s date and place of hearing(within 6 months from the date of theorder’s issuance)

• Copy of the order shall bepublished at least once a week for 3successive weeks before the hearing, ina newspaper of general circulation in

the province/city where the court issituated.• If the application is for change of name, the hearing shall not be within 4months after the last publication of thenotice nor within 30 days prior to anelection.

5) Directive to the social worker toprepare and submit child and home studyreports before the hearing, if such reportswere not attached to the petition due tounavailability at the time of the filing; and6) Directive to the social worker toconduct counseling sessions with thebiological parents and to submit a reportbefore the hearing.

• Court has discretion to furnish copies of theorder to OSG, DSWD and the adoptee’sbiological parents.• If a change in the adoptee’s name isprayed for, notice to OSG is mandatory.

CHILD AND HOME STUDY REPORTS [Sec.13, Rule on Adoption]

• The social worker shall verify with the CivilRegistry the adoptee’s real identity andregistered name. If the adoptee’s birth was notregistered, the social worker shall register theadoptee and secure a certificate of foundling orlate registration.• The social worker shall establish that:

1) the child is legally available foradoption;2) the documents in support thereof

are valid and authentic;3) that the adopter has sincereintentions;4) that the adoption shall inure to thechild’s best interests.

• If the adopter is an alien, the home studyreport must show:

1) his legal capacity to adopt;2) that his government allows theadoptee to enter his country as his adoptedchild in the absence of the certificationrequired under Sec. 7(b), RA 8552.

• If the social worker finds that there aregrounds to deny the petition, he shall make the

proper recommendation to the court, with copyfurnished the petitioner.

HEARING [Sec. 14, Rule on Adoption]

• Upon satisfactory proof of publication and jurisdiction, the court shall hear the petition.The petitioner and the adoptee must personallyappear. The petitioner must testify.• The court shall verify from the socialworker to:

1) determine WON the biologicalparent was properly counseled againstmaking hasty decisions caused by

strain/anxiety to give up the child;2) ensure that all measures tostrengthen the family have beenexhausted;3) ascertain if any prolonged stay of the child in his own home will be inimical tohis welfare and interest.

SUPERVISED TRIAL CUSTODY [Sec. 15, Ruleon Adoption]





• Before issuance of the adoption decree, thecourt shall give the adopter trial custody of theadoptee for at least 6 months. Within thisperiod, the parties are expected to adjustpsychologically and emotionally to each otherand establish a bonding relationship.• The trial custody shall be monitored by thesocial worker who submitted and prepared thecase studies.• During the period, temporary parentalauthority shall be vested in the adopter.

• Where the trial custody had not yet begunor had already been completed at the timeof a quasi-delict committed by the child tobe adopted, the adopting parents cannotassume any liability therefor. Accordingly,his natural parents should be joined asindispensable parties to the suit fordamages. [Tamargo v. CA (1992)]

• The court may reduce the period or exempt

the parties if it finds that the same shall be forthe adoptee’s best interests.

• General rule: An alien adopter mustcomplete the 6-month trial custody.• Exception:

1) A former Filipino citizen who seeksto adopt a relative within the 4thdegree;2) One who seeks to adopt thelegitimate child of his Filipino spouse;3) One who is married to a Filipinocitizen and seeks to adopt jointly withhis spouse the latter’s relative withinthe 4th degree.

• If the child is below 7 years of age and isplaced with the prospective adopter through aDSWD pre-adoption placement authority, thecourt shall order that the prospective adoptershall enjoy all the benefits to which thebiological parent is entitled from the date theadoptee is placed with him.• The social worker shall submit to the courta report on the result of the trial custody within2 weeks after its termination.

ADOPTION DECREE [Sec. 16, Rule on Adoption]

• If the supervised trial custody issatisfactory to the parties, the court isconvinced from the trial custody report and theevidence that the adoption shall redound to theadoptee’s best interests, an adoption decreeshall be issued.• The adoption decree shall take effect as of the date the original petition was filed, even if the petitioners die before its issuance.

ADOPTION DECREE’S CONTENTS1) Name by which the child is to be known and

registered;

2) Order for the COC to issue to the adopter acertificate of finality upon expiration of the 15-day reglementary period for appeal;

3) Order for the adopter to submit a certified truecopy of the adoption decree and the certificateof finality to the Civil Registrar where the childwas originally registered, within 30 days fromreceipt of the certificate of finality. In case of change of name, the decree shall be submittedto the Civil Registrar where the issuing court issituated.

4) Order for the Civil Registrar of the place wherethe adoptee was registered:a) to annotate on the adoptee’s original birth

certificate the adoption decree, within 30days from receipt of the certificate of finality;

b) to issue a birth certificate which shall notbear any notation that it is a new/amendedcertificate;

c) to seal the original birth certificate in thecivil registry records, which can be openedonly upon order of the court which issuedthe adoption decree;

d) to submit to the court issuing the adoptiondecree proof of compliance within 30 daysfrom receipt of the decree;

e) If the adoptee is a foundling, to annotatethe adoption decree on the foundlingcertificate.

CONFIDENTIALITY OF PROCEEDINGS

AND RECORDS [Sec. 18, Rule on Adoption]

• After compliance with jurisdictionalrequirements, all adoption hearings shall beconfidential and shall not be open to the public.All related records shall be kept strictlyconfidential.• If the court finds that disclosure to a 3rdperson is necessary for security reasons or forpurposes connected with or arising out of theadoption and will be for the adoptee’s bestinterests, the court may order the necessaryinformation to be released, restricting thepurposes for which it may be used.

ADOPTION’S RESCISSION

• Adoption may not be rescinded by theadopter; but he may disinherit the adopteeunder Art. 919, CC. [Sec. 19, Rule on

Adoption]

• Rationale: Adoption is for the child’s bestinterests.

GROUNDS FOR RESCISSION THAT ARECOMMITTED BY THE ADOPTER [Sec. 19, Rule on

Adoption]

1) repeated physical and verbal maltreatmentdespite having undergone counseling;2) attempt on the adoptee’s life;3) sexual assault/violence;4) abandonment or failure to comply with parental

obligations.


• Family Court of the city/province where theadoptee resides.

WHO MAY FILE THE PETITION FOR RESCISSION[Sec. 19, Rule on Adoption]

• The adoptee who is over 18 years of age.•

With the assistance of:1) DSWD, if he is a minor;2) His guardian/counsel, if he is over18 years of age but is incapacitated.

WHEN TO FILE THE PETITION FOR RESCISSION[Sec. 21, Rule on Adoption]

• Within 5 years:1) After reaching the age of majority,if the adoptee is incapacitated;





2) After recovery from incompetency,if the adoptee is incompetent.

ORDER TO ANSWER [Sec. 22, Rule on Adoption]

• The court shall order the adverse party toanswer the petition within 15 days fromreceipt of a copy thereof.

JUDGMENT [Sec. 23, Rule on Adoption]• If the court finds that the petition’sallegations are true, it shall order the rescissionof adoption.• The court shall order that:

1) The biological parents’ parentalauthority, or the DSWD’s legal custody,shall be restored if the adoptee is still aminor/incapacitated.2) The reciprocal rights andobligations of the adopter and the adopteeshall be extinguished.3) The successional rights shall revertto its status prior to adoption, as of thedate of judgment of judicial rescission.Vested rights acquired prior to judicialrescission shall be respected.4) The adoptee shall use the namestated in his original birth/foundlingcertificate.5) The Civil Registrar where theadoption decree was registered shall cancelthe new birth certificate of the adoptee andreinstate his original birth/foundlingcertificate.

SERVICE OF JUDGMENT [Sec. 24, Rule on

Adoption]• A certified true copy of the judgment and acertificate of finality shall be served by thepetitioner upon the Civil Registrar within 30days from receipt of the certificate of finality.The Civil Registrar shall enter the rescissiondecree in the register and submit proof of compliance to the court within 30 days fromreceipt of the decree.

B. INTER-COUNTRY ADOPTION

SCOPE AND APPLICABILITY [Sec. 26, Ruleon Adoption]

• RA 8043 (Inter-Country Adoption Act)governs the adoption of Filipino children by:

1) Foreign nationals;2) Filipino citizens permanentlyresiding abroad.

OBJECTIVES [Sec. 27, Rule on Adoption]

1) To consider inter-country adoption as analternative means of child care, if the childcannot be placed in a foster/adoptive family orcannot be cared for in the Philippines;

2) To ensure that the child enjoys the sameprotection accorded to children in domesticadoption;

3) To ensure that the placement does not result inimproper financial gain for those involved.

QUALIFIED ADOPTEES [Sec. 29, Rule on Adoption]

• Only a child legally available for domesticadoption may be the subject of inter-countryadoption.


1) Family Court having jurisdiction over the place

where the child resides or may be found.2) Directly with the Inter-Country Adoption Board.

PETITION FOR ADOPTION

PETITION’S CONTENTS [Sec. 30, Rule on Adoption]1) Age of the petitioner and of the child to be

adopted, showing that petitioner is at least 27years of age and at least 16 years older thanthe child at the time of application;

• Exception: If the petitioner is the child’sbiological parent or the spouse of suchparent.

2) If petitioner is married, the name of the spouse

who must be joined as co-petitioner;• Exception: If the adoptee is the spouse’s

legitimate child.3) Petitioner’s capacity to act and assume all

rights and responsibilities of parental authorityunder his national laws, and that he hasundergone the appropriate counseling from anaccredited counselor in his country;

4) Non-conviction of crimes involving moralturpitude;

5) Eligibility to adopt under his national law;6) That he can provide the proper care and

support and instill the necessary moral valuesand example to all his children, including thechild to be adopted;

7) That he agrees to uphold the basic rights of thechild;

8) That he comes from a country with which thePhilippines has diplomatic relations and whosegovernment maintains a similarly authorizedand accredited agency; and that adoption of aFilipino child is allowed under his national laws;

9) That he possesses all the qualifications andnone of the disqualifications provided in thisRule, in RA 8043 and other Philippine laws.

PETITION’S ANNEXES [Sec. 31, Rule on Adoption]1) Petitioner’s birth certificate;2) Marriage contract, divorce decree or judgment

dissolving the marriage;3) Sworn statement of consent of petitioner’s

biological/adopted children above 10 years of age;

4) Physical, medical and psychological evaluationof the petitioner certified by a duly licensedphysician and psychologist;

5) Income tax returns or any authentic documentshowing the petitioner’s current financialcapability;

6) Police clearance issued within 6 months beforethe filing of the petition;

7) Character reference from the localchurch/minister, the petitioner’s ER and amember of the immediate community whohave known the petitioner for at least 5 years;

8) Full body postcard-size pictures of thepetitioner and his immediate family taken atleast 6 months before the filing of the petition.

COURT’S DUTY





• If the court finds that petition is sufficientin form and substance and that there is aproper case for inter-country adoption, it shalltransmit the petition to the Inter-CountryAdoption Board. [Sec. 32, Rule on Adoption]

An adoption created under the law of a foreigncountry is entitled to registration in the

corresponding civil register of the Philippines. Theeffects of such adoption shall be governed by thelaw of the Philippines. [Marcaida v. Aglubat (1967)

]

VI.HOSPITALIZATION OF

INSANE PERSONS

PROCEDURE IN THE HOSPITALIZATIONOF INSANE PERSONS

Petition for commitment filed in RTC

Court order fixing the date and place for hearingand ordering the sheriff to produce the alleged

insane person in the hearing

Service of notice of the court order to the allegedinsane person and to the person who has custody

of him/her

Hearing on the petition

Judgment granting/denying the petition

INSANITY

• Definition: Condition of the mind where itis so impaired in function or so deranged as toinduce deviation from normal conduct in theperson so afflicted.

PETITION FOR COMMITMENT [Rule 101,Sec. 1 and 5]

• Petition is filed in the RTC of the provincewhere the person alleged to be insane is found.

• Who may file:1) Person in custody or having chargeof the insane person.2) If the above refuses, andcommitment is for the public welfare or thewelfare of insane person, the HealthSecretary with the assistance of thecity/provincial fiscal.

COURT ACTION ON THE PETITION [Rule101, Sec. 2-3

]

1) The court shall fix a date and place forhearing where all concerned may appear tocontest the petition.2) Copies of the notice of hearing shall beserved upon:

a) The person alleged to be insane;

and

b) The one having charge of him, or

on such of his relatives residing in theprovince/city as the judge may deemproper.

3) The court shall order the sheriff to producethe alleged insane person (if possible) on thedate of hearing.4) Upon satisfactory proof that the

commitment is necessary and that his relativesare unable to take proper custody and care of him, the court shall order his commitment in ahospital/asylum.5) The court shall make proper provisions forthe custody of the ward’s property until aguardian is properly appointed.

BURDEN TO PROVE INSANITY





• To prove insanity, the burden is on theparty who alleges insanity.

WHEN THE PERSON IS CURED

• The Health Secretary may file a petition forthe discharge of the insane person in the RTCwhich ordered the commitment when he is of the opinion that the person ispermanently/temporarily cured or may bereleased without danger. [Rule 101, Sec. 4]

The Health Secretary cannot order release withoutthe approval of the RTC. [Chin Ah Foo v.Concepcion

]. On the other hand, the RTC cannotorder release without recommendation from theHealth Secretary.

Petition for declaration of absence

Court order fixing the hearing for petition

Notice and publication of the notice of hearing

Hearing and appointment of administrator/trustee

Termination of administration/trusteeship

VII. ABSENTEES

PROCEDURE FOR DECLARATION OFABSENCE UNDER RULE 107


• Rule 107 is proper only where the absenteehas properties to be administered. [Regalado]

• Rationale: The declaration of absencemade according to CC has the sole purposeof enabling the taking of necessaryprecautions for the administration of theabsentee’s estate. [Jones v. Hortiguela(1937)

]

• Note: However, Art. 41-43, FC and Rule131, Sec. 3 (w)(4) provide that if the spousewas absent for 4 or 2 years and the spousepresent has a well-founded belief that the

absent spouse is already dead, the spousepresent must institute a summary proceedingfor the declaration of presumptive death, forpurposes of contracting a subsequent marriage.[Regalado

]

APPOINTMENT OF A REPRESENTATIVE[Rule 107, Sec. 1; Art. 381, CC

]

• If a person disappears from his domicile,his whereabouts is unknown, and there is noagent left to administer his property or theagent’s power has expired, any interested partymay petition for the appointment of the

absentee’s representative.

PETITION FOR DECLARATION OFABSENCE AND APPOINTMENT OFADMINISTRATOR/TRUSTEE

WHEN TO PETITION [Rule 107, Sec. 2; Art. 384,CC]1) After 2 years:

a) from the disappearance andwithout any news about the absentee; orb) since the receipt of the last newsabout him;

2) After 5 years, if he left an administrator of his

property.

WHO MAY PETITION [Rule 107, Sec. 2; Art. 385,CC

]1) Spouse present;2) Heirs instituted in a will;3) Relatives who will succeed by intestacy;4) Those who have some (over the absentee’s

property) subordinated to the condition of hisdeath.





PETITION’S CONTENTS [Rule 107, Sec. 3]1) Jurisdictional facts;2) Names/ages/residences of:

a) Heirs instituted in the will;b) Relatives who would succeed byintestacy;

3) Names/residences of creditors and others whomay have any adverse interest over theabsentee’s property;

4) Absentee’s properties.

NOTICE AND PUBLICATION [Rule 107, Sec.4]

• When a petition is filed, the court shall fixthe hearing’s date and place.• Copies of the notice of hearing shall beserved upon the known interested persons, atleast 10 days before the hearing.• Publish the notice of hearing once a week

for 3 consecutive weeks before the hearing, ina newspaper of general circulation in theprovince/city where the absentee resided.

HEARING

• Anyone appearing to contest the petitionshall state his grounds in writing, and serve acopy on the other interested parties on orbefore the hearing. [Rule 107, Sec. 5]

• Upon proof of notice, publication and thepetition’s allegations, the court shall grant thepetition and appointing the absentee’srepresentative/trustee/administrator. [Rule107, Sec. 6

]

• The court shall safeguard the absentee’srights and interests and shall specify therepresentative/trustee/administrator’s powers,obligations and remuneration, regulating themby the rules on guardians. [Rule 107, Sec. 6;

Art. 382, CC

]

• Declaration of absence takes effect 6months after its publication in a newspaper of general circulation and in the OG. [Rule 107,Sec. 6; Art. 386, CC]

WHO MAY BE APPOINTED

REPRESENTATIVE/ADMINISTRATOR/TRUSTEE[Rule 107, Sec. 7; Art. 383, CC

]1) The spouse present is preferred;

• Exception: If there is legal separation.2) If the absentee has no spouse, or the spouse is

a minor/incompetent, any competent person

TERMINATION

GROUNDS FOR TERMINATION [Rule 107, Sec. 8]1) If the absentee appears personally or by agent;2) If absentee’s death is proved and heirs appear;3) If a 3rd person appears, showing by a proper

document that he has acquired the absentee'sproperty by title.Administrator/trustee shall cease in theperformance of his office, and the property shall beplaced at the disposal of those who may have aright to it.

VIII. WRITS

A. HABEAS CORPUS

PROCEDURE FOR ISSUANCE OF THE WRITOF HABEAS CORPUS UNDER RULE 102

Petition alleging illegal confinement/detention

Issuance of the writ by a court with jurisdiction

Service by leaving the original with the person towhom the writ is directed and preserving a copy

Hearing by the court

Recommitment, bail or discharge of the detained

Execution of the writ by conveying the detainedperson before the court, with return of service

DEFINITION

• HC WRIT – Writ directed to the persondetaining another and commanding him toproduce the body of the detained at a certaintime and place, with the day and the cause of

his caption and detention, to do, to submit toand receive whatever the court shall consider inthat behalf. [Bouvier’s Law Dictionary

]

• The HC writ is a speedy and effectualremedy to relieve persons from unlawfulrestraint, and is the best and only sufficientdefense of personal freedom. It secures to aprisoner to have the cause of his detentionexamined and determined by a court of justice,and to have the issue ascertained as to WONhe is held under lawful authority. [Feria v. CA(2000)

]

KINDS OF HC WRIT [Lee Yick Hon v. Insular

Collector of Customs]1) PRELIMINARY CITATION – If the person is

detained under governmental authority and theillegality of his detention is not patent from thepetition for the writ, the court issues thecitation to the government officer havingcustody to show cause why the HC writ shouldnot issue.

2) PEREMPTORY WRIT – If the cause of the

detention appears to be patently illegal. Non-compliance with this is punishable.


• HC writ extends to:

1) All cases of illegal

confinement/detention by which any partyis deprived of his liberty. [Cruz v. CA(2000)]

2) If the rightful custody of a person is

withheld from the one entitled to it.[Ilusorio v. Bildner (2000)

]





• General rule: HC writ shall notissue if the restraint is voluntary. [Kelly v. Director of Prisons

]

• Exception: HC is a properremedy to enable parents to regaincustody of a minor, even if theminor is in the custody of a 3rd

person of his own free will. [Tijingv. CA

]

• Rationale: Custody casesinvolving minors are prosecutedto determine custody rightsover a child.

3) If, as a consequence of a judicial

proceeding: [Feria v. CA (2000)]a) There is deprivation of aconstitutional right resulting in theperson’s restraint;b) The court has no jurisdiction toimpose the sentence; or

c) An excessive penalty was imposed,because the sentence is void as to theexcess.

ACTUAL AND EFFECTIVE RESTRAINT

• The essential object of the HC writ is toinquire into inbvoluntary restraint and torelieve the detained person. Thus, the restraintof liberty must be an illegal and involuntarydeprivation of freedom of action which must beactual and effective, not merely nominal/moral.[Ilusorio v. Bildner (2000)]

• It is not physical restraint alone which isinquired into by the HC writ. Any restraintwhich will prejudice freedom of action issufficient ground. [Moncupa v. Enrile (1986)

]

• Freedom may be lost due to external moralcompulsion, fear or erroneous belief in theexistence of the will. If the actual effect of such psychological spell is to plow a personat the mercy of another, the victim isentitled to the courts’ protection as muchas an individual who is illegally deprived of liberty by physical coercion. [Caunca v.Salazar]

• Jurisprudence extended the definition of “restraint” to an accused who is out on bail and

to convicts on parole. [In re: Azucena Garcia(2000)]

RELEASE OF THE DETAINED

• The sole issue in HC proceedings isdetention. When the release of the detainedperson is effected, the petition for the issuanceof the HC writ becomes moot and academic.[Olaguer v. Military Commission (1987)

]

• The release that renders a petition for theHC writ moot and academic is one that is freefrom involuntary restraints. Hence, the writmay still be applied for if: [Moncupa v. Enrile

(1986)]1) A person continues to be deniedany of his constitutional rights;2) The restraints are not merelyinvoluntary but appear to be unnecessary;3) An originally valid deprivation of liberty became arbitrary, in light of subsequent developments.

NOT A SUBSTITUTE FOR TRIAL’S ORDINARYCOURSE

• The HC writ does not lie to correct errors of fact or law. If a court has jurisdiction, its

judgment/order is not subject to collateralattack by HC. The writ cannot perform thefunction of a writ of error, even if the

judgment/order is erroneous, provided thecourt had jurisdiction. [Harden v. Director (1948)

]

• HC writ is not intended as a substitute forthe functions of a trial court. In the absence of exceptional circumstances, the orderly courseof trial should be pursued and the usualremedies exhausted before the writ may beinvoked. HC writ is not ordinarily available inadvance of trial to determine jurisdictionalerrors that may arise. [Galvez v. CA (1994)

]

• HC writ may not be validly resorted to inlieu of a lost/dismissed appeal. [In re: AzucenaGarcia (2000)]

• It is necessary that the court judgmentwhich resulted in the illegal deprivation of liberty is no longer appealable, in which casethe writ is in the nature of a collateral attackagainst a final but void judgment. [Chavez v.CA (1968)]

HC PETITION

• A signed and verified petition must allege:[Rule 102, Sec. 3]

1) Fact of confinement/detention;2) By whom;

• If the restraining person isunknown/uncertain, use an assumedappellation. But the person served isdeemed the person intended.

3) Where; and4) Cause or commitment order (if itcan be procured without impairing HC writ’sefficiency), or lack thereof.

HC WRIT’S ISSUANCE

• General rule: If it appears that the writshould issue, the COC issues the writ under the

court’s seal. [Rule 102, Sec. 5

]• Exception: In emergency cases, the judge

may issue the writ under his own hand anddeputize any person to serve it.

• The law even makes it the duty of the courtto grant the HC writ if there is evidencethat a person is unjustly restrained withinthe court’s jurisdiction, though noapplication for the writ was made.[Villavicencio v. Lukban (1919)

]

• Contents of the writ: [Rule 102, Sec. 6

]

distraint by officer distraint NOT by officer

directed to him directed to an officerorders him to produce theperson before the court

orders officer to: 1) takeand produce the personbefore the court and 2)summon the persondetaining to show the causeof destraint

• Grounds for denying the writ: [Rule 102,

Sec. 4]





1) Custody under process/order by acourt with jurisdiction;2) If jurisdiction appears after the writis allowed, the detained cannot bedischarged because of informality/defect inthe process/order;3) Charge/conviction for an offense inthe Philippines;4) Imprisonment under lawful order.

HC WRIT’S SERVICE

• If the person to whom the writ is directedcannot be found or does not have custody of the detained person, serve the writ on anyperson who has such custody. [Rule 102, Sec.7

]

HC WRIT’S EXECUTION

• General rule: Officer to whom writ isdirected shall convey the detained person onthe day specified in the writ:

1) Before the judge who allowed thewrit;

2) If he is absent, before any judge of

the same court. [Rule 102, Sec. 8

]

• Exception: If the person to be producedhas sickness/infirmity such that he cannotbe brought before the court withoutdanger.

• The writ cannot be disobeyed for formaldefect, if it sufficiently appears therefrom:1) Who has custody of the detained; and

2) The judge/court before whom the detainedmust be produced. [Rule 102, Sec. 9

]

HC WRIT’S RETURN• The return is signed by the person whomade it. It shall be sworn to if:

1) The detained is not produced; or

2) If it was not made and signed by a

sworn public officer in his official capacity.[Rule 102, Sec. 11

]

• Contents of the return: [Rule 102, Sec. 10

]

1) WON he has custody of thedetained;

2) Copy of the authority for thecustody;3) If the person is not produced incourt, the nature and gravity of sickness/infirmity;4) If custody is transferred, thecircumstances of the transfer.

• General rule: A person imprisonedfor any criminal matter cannot beremoved from one custody to another.[Rule 102, Sec. 18

]• Exception:

1) By legal process;2) To be delivered to aninferior officer to carry to jail;3) For trial;4) In cases of necessity orpublic calamity.

HEARING ON THE RETURN [Rule 102, Sec.12]

• When the writ is returned, the court mustimmediately hear the case.• Hearing may be adjourned for good causes,with the court making provisions for thesafekeeping of the detained person.• If the detained person is not produced, thecourt must be satisfied of the gravity of thealleged sickness/infirmity.• In the hearing, the court shall disregardmatters of form and technicalities of theauthority/order of commitment.

BURDEN OF PROOF

• General rule: The burden of proving illegalrestraint rests on the petitioner who attacks therestraint. If the return sets forth process whichprima facie shows good ground for theprisoner’s detention, petitioner must allege andprove new matter that tends to invalidate theapparent effect of the process. [Feria v. CA

(2000)

]• Exception: [Rule 102, Sec. 13

]

if custody is underwarrant of commitment

pursuant to law

if custody is by anyalleged private

authority

return is considered primafacie evidence of the causeof restraint

return is only a plea of the facts set forththerein, and the partyclaiming custody mustprove such facts

RECOMMITMENT, BAIL OR DISCHARGEif unlawfully restrained if lawfully committed for

an offensecourt shall orderdischarge fromconfinement; butdischarge is not effectiveuntil copy of order isserved on detainingperson. If detainingperson does not desire toappeal, detained personshall be released.[Rule 102, Sec. 15]

1) if offense is punishableby death - detainedperson cannot bereleased/discharged.

2) if offense is NOTpunishable by death -either:a) recommit to prison;b) admit to bail.

[Rule 102, Sec. 14]

• If detained person is admitted to bail, heshall file a bond conditioned on appearance incourt; otherwise, he will be recommitted. [Rule102, Sec. 14

]

• Person set at liberty by the writ shall not beimprisoned for the same offense. [Rule 102,Sec. 17

]

• Exception: If there is lawful order/processof a court having jurisdiction.

PENALTY FOR REFUSING/DISOBEYING

THE HC WRIT [Rule 102, Sec. 16]

PUNISHABLE ACTS/OMMISSIONS1) If COC refuses to issue the writ after allowance

by the court and demand.2) If person directed in the writ:

a) Neglects/refuse to obey or make thereturn;

b) Makes a false return;





c) Refuses to deliver a true copy of thewarrant/order of commitment, within 6hours after demand.

3) Imprisoning a person set at liberty by the writ,

for the same offense. [Rule 102, Sec. 17]

4) Removing a prisoner from one custody to

another. [Rule 102, Sec. 18

]

PENALTIES1) Forfeiture of P1,000 to the aggrieved party.2) Punished for contempt.

HC WRIT AND CERTIORARI

• The writs of HC and certiorari may beancillary to each other where necessary to giveeffect to the supervisory powers of the highercourts. [Regalado

]

• Rationale: An HC writ reaches the bodyand the jurisdictional matters, but not the

record. A certiorari writ reaches the record,but not the body. Hence, the two may beused together for review purposes.

B. WRIT OF AMPARO

• AMPARO – Literally, to protect.

• The instrument originated in Mexico andhas been constitutionally adopted by LatinAmerican countries (except Cuba) toprotect against human rights abuses,

especially during the time when they weregoverned by military juntas. The writ wasadopted to provide for a remedy to protectthe whole range of constitutional rights,including socio-economic rights.

• In light of the recent prevalence of extralegal killings and enforceddisappearances, SC exercised its enhancedpower to promulgate rules to protect andenforce constitutional rights (Art. 8, Sec.5[5], Consti).

• EXTRALEGAL KILLINGS – Killingscommitted without due process of law(i.e. without legal safeguards or judicial

proceedings).• ENFORCED DISAPPEARANCES –Attended by the followingcircumstances:1) Arrest/detention/abduction of a

person by a government official ororganized groups or privateindividuals acting with the in/directacquiescence of the State;

2) Refusal of the State to disclose the

fate/whereabouts of the personconcerned, or refusal toacknowledge the deprivation of

liberty, which places such personsoutside the protection of the law.[Declaration on the Protection of All Persons from Enforced Disappearances

]• The Philippine Constitution does not

explicitly provide for the writ. However,several amparo protections are availableunder the 1987 Constitution.

• The Grave Abuse Clause in Art. 8, Sec. 1,Consti accords the same protection tohuman rights given by amparo.

Constitutional basis

Amparo contra leyes Art. 5, Sec.5(2)(a), Consti:SC has review powers overall cases in which the

constitutionality/validity of any treaty,international/executiveagreement, law,presidential issuances, orregulation is in question

Amparo casacion Art. 5, Sec.5(2), Consti:SC has explicit reviewpowers over judicialdecisions

Amparo administrative Recognized in form by the1987 Consti

Amparo libertad Comparable to HC remedyunder the ROC (whichadopted the Old Englishrule on protection of individual liberty) andConsti provisions (Art. 3,Sec. 13 and 15; Art. 7,Sec. 18; Art. 8, Sec. 5,par. 1)

C. WRIT OF HABEAS DATA

• HD WRIT – An independent remedy to

protect the right to privacy, especially the rightto informational privacy.• Rationale:• The privacy of one’s person/family/home is

a sanctified right in the history of constitutional law. A person’s home is hiskingdom, which even the king has torespect.

• The right to privacy is accorded arecognition independent of its identificationwith liberty. In itself, it is fully deserving of constitutional protection. A system of limited government safeguards a privatesector, which belongs to the individual;

firmly distinguishing it from the publicsector, which the government can control.Protection of this private sector (i.e. of theindividual’s dignity and integrity) hasbecome increasingly important as modernsociety developed. All the forces of technological age operate to narrow thearea of privacy and facilitate intrusion intoit. In modern terms, the capacity tomaintain and support this enclave of private life marks the difference between ademocratic and a totalitarian society.[Morfe v. Mutuc (1968)

• The HD writ is also a remedy to protect theright to life/liberty/security of a personfrom violation (or threat thereof) by anunlawful act/omission of a public official/EEor of a private individual/entity. ]





WRIT OF AMPARO VIS-À-VIS WRIT OF HABEAS DATAXxx writ of amparo writ of HD

Nature of remedy If right to life/liberty/security is violated (orthreatened to be so) by a public official/EEor a private individual/entity

If right to privacy is so violated (or threatenedto be so) in gathering/collecting/storing dataor information about aggrieved party'sperson/family/home/correspondence

Who may file 1) Aggrieved party; 1) SAME

Xxx 2) In order: 2) If ELKED cases (in order):

Xxx a) Immediate family members a) SAME

Xxx b) Ascendant/descendant or collateralrelative within 4th civil degree

b) SAME

Xxx c) Concerned citizen/organization Xxx

Xxx * Aggrieved party's filing suspends the rightto file of others

Xxx

Xxx * Filing by an authorized party suspends theright of all others down the order

Xxx

Docket fees Exempt If indigent petitioner, exempt

Docket petition and act immediately SAME, but without prejudice to submission of proof of indigency within 15 days from filing

Contents of petition Signed, verified and allege: Xxx

Xxx 1) Petitioner's circumstances 1) SAME

Xxx 2) Respondent's circumstances 2) SAME

Xxx 3) Right violated or threatened to beviolated, and how violated/threatened

3) File/database location and person/entity inpossession/control

Xxx 4) Investigations conducted

Xxx 5) Petitioner's actions/recourses todetermine aggrieved party'sidentity/whereabouts and violator's identity

4) Petitioner's actions/recourses to secure thedata/information

Xxx 6) Relief prayed for 5) SAME, including theupdate/rectification/suppression/destructionof the file/database or enjoinment of the

threatXxx * Include general prayer for other just and

equitable reliefs* SAME

Issuance of writ Upon filing and petition's prima facievalidity:

SAME

Xxx Court shall immediately issue the writ SAME

Xxx Clerk of court shall issue the writ under thecourt's seal

SAME, and he shall serve it within 3 daysfrom issuance

Xxx * If urgent, the judge/justice may issue thewrit in his own handwriting and deputizeanyone to serve it

* SAME

Xxx * The writ shall set the date and time forsummary hearing, which should be within 7days from issuance

* SAME, but within 10 days from issuance

Penalty for refusingto issue writ Contempt, without prejudice to otherdisciplinary actions SAME

Service of writ Serve a copy on respondent and retain acopy on which to make a return of service

SAME

* If respondent cannot be served personally,apply substituted service rules

* SAME

Return on the writ Respondent must file a verified writtenreturn within 72 hours after service

SAME, but within 5 working days (the courtmay extend the period for justifiable reasons)

Xxx Contents of return:

Xxx 1) Lawful defenses 1) SAME





Xxx 2) Steps/actions taken to determine thewhereabouts of the aggrieved party and theviolator

2) If respondent has possession/control of thedata/information:

Xxx 3) All relevant information a) Disclosure of the data/information, itsnature, and the purpose of its collection

Xxx 4) If respondent is a public official/EE,actions that were taken or will be taken:

b) Steps/actions taken to secure thedata/information's confidentiality

Xxx a) To verify the aggrieved party's identity c) Data/information's currency and accuracy

Xxx b) To recover and preserve evidence forprosecution

3) Other relevant allegations

Xxx c) To determine death's/disappearance'scircumstances

xxx

Xxx d) To identify and apprehend personsinvolved

xxx

Xxx e) To bring suspected offenders to court xxx

Xxx * General denial of petition's allegations isnot allowed

* SAME

Defenses raised All defenses not raised in the return aredeemed waived

Hearing may be in chambers if respondentinvokes the following defenses:

Xxx Xxx 1) Release of the data/information willcompromise national security or State secrets

Xxx Xxx 2) Data/information cannot be divulged topublic because of its nature or privilegedcharacter

Prohibitedpleadings/motions

1) MTD SAME

Xxx 2) Motion for extension to file pleading xxx

Xxx 3) Dilatory motion for postponement xxx

Xxx 4) Motion for bill of particulars xxx

Xxx 5) Counter/cross complaint xxx

Xxx 6) 3rd party complaint xxx

Xxx 7) Reply xxx

Xxx 8) Motion to declare respondent in default xxx

Xxx 9) Intervention xxx

Xxx 10) Memorandum xxx

Xxx 11) MFR of interlocutory orders or interimrelief orders

xxx

Xxx 12) Petition forcertiorari/mandamus/prohibition againstinterlocutory orders

xxx

Effect of failure tofile return

Ex parte hearing SAME

Xxx Xxx May grant petitioner relief as petitionwarrants, although it is the court's discretionto require petitioner to submit evidence

Summary hearing Allowed, but the court may call for apreliminary conference to simplify issues anddetermine possibility of obtainingstipulations and admissions

SAME

Xxx Hearing will be day to day until completed,and has the same priority as HC petitions

xxx

Interim reliefs Upon fi ling and anytime before judgment,the court may grant any of the following:

xxx

Xxx 1) Temporary protection order xxx

Xxx 2) Inspection order = To permit entry forinspecting relevant objects/operations

xxx

Xxx 3) Production order = To produce and permitinspection of evidence

xxx

Xxx 4) Witness protection order xxx

Availability of interim reliefs torespondent

Only #2 and #3 xxx

Contempt For disobeying lawful court orders/processes SAME

Burden of proof Substantial evidence xxx

Required standardof diligence

If respondent is: xxx





Xxx 1) Private individual/entity: Ordinary xxx

Xxx 2) Public official/EE: Extraordinary; andcannot invoke presumption of regularity inperformance of official duty to evade liability

xxx

Judgment Must be rendered within 10 days frompetition's submission for decision

SAME

Xxx * If petition's allegations are proven by

substantial evidence, grant writ and reliefs;otherwise, deny

* SAME

Xxx Xxx * Upon judgment's finality, enforce within 5days

Return of service Xxx Executing officer must make return within 3days from enforcement

Xxx Xxx * Notice and hearing on the executingofficer's return

Appeal Appeal to SC under Rule 45, on questions of law, and within 5 days from notice of adverse judgment

SAME

Xxx * Appeal has same priority as HC cases * Appeal has same priority as HC and amparocases

Archiving andrevival of cases

If petition cannot proceed for a valid cause,the court shall not dismiss it but shall

archive it

Xxx

Xxx * After 2 years from notice of archiving topetitioner, petition shall be dismissed withprejudice upon failure to prosecute

Xxx

Institution of separate actions(criminal/civil)

Not precluded SAME

Effect of filing acriminal action

A separate petition for the amparo writcannot be filed, but the remedy may beavailed by motion in the criminal action

SAME

Consolidation withanother action

If a separate criminal (and civil) action isfiled subsequent to the filing of petition forthe writ, consolidate the petition into thecriminal action

Xxx

Substantive rights Cannot be increased/decreased/modified SAME

ROC application Suppletory SAME





IX.CHANGE OF NAME

A. CHANGE OF NAME

UNDER RULE 103

PROCEDURE IN CHANGE OF NAMEUNDER RULE 103

Petition for change of name

Court order fixing the date and place for hearing

Publication of the court order fixing the date andplace of hearing, at least once a week for 3successive weeks in a newspaper of general

circulation


Judgment granting/denying the change of name.Copy of the judgment shall be served upon the civil

registrar, who shall annotate the same

NATURE

Change of Name (Rule

103)

Correction of clerical

or typographical error(RA 9048)Judicial Administrative: Local civil

registrar or consulgeneral (for nonresidentcitizens)

Includes change insurname

Clerical/typographicalerrors and change infirst/nick name

• A change of name is a proceeding in rem. Assuch, strict compliance with all jurisdictionalrequirements, particularly on publication, isessential in order to vest the court with

jurisdiction. [Regalado

]

• An alien can petition for a change of namebut he must be domiciled in the Philippines.[Ong Huan Tin v. Republic (1967)

]

• The name that can be changed is the namethat appears in the civil register, and not inthe baptismal certificate or that by which theperson is known in the community. [Ng YaoSiong v. Republic (1966)

]

• Legal separation is not a ground for thefemale spouse for a change of name underRule 103. [Laperal v. Republic (1962)

]

• A change of name granted by the courtaffects only a petitioner. A separate petitionfor change of name must be filed for his/herspouse and children. [Secan Kok v. Republic (1973)]

• Sex reassignment is not a valid ground to

change one’s first name (applies to both Rule103 and RA 9048). [Silverio v. Republic (2007)]

VENUE [Rule 103, Sec. 1

]

• In the RTC of the province where thepetitioner has been residing for years prior tothe filing of the petition.

PETITION’S CONTENTS [Rule 103, Sec. 2]

• A petition for change of name shall be

signed and verified by the person desiring hisname changed, or some other person on hisbehalf. It shall contain: [Secan Kok v.Republic (1973)

]1) That the petitioner has been a bona fide

resident of the province where thepetition is filed for at least 3 years priorto the date of such filing;

2) The cause for which the change of thepetitioner's name is sought;

3) The name asked for;4) All names by which petitioner is known.

• All aliases of the applicant must be set forthin the petition’s title; otherwise, such defectwould be fatal even if said aliases arecontained in the body of the petition. [GoChiu Beng v. Republic (1972)

]

• Verification is a formal, not a jurisdictionalrequirement. The lack of verification is not aground for dismissing the petition. [Oshito v.Republic

]

• Petition should be filed by applicant uponreaching the age of majority. [Regalado

]

VALID GROUNDS FOR CHANGE OF NAME

1) When the name is ridiculous, dishonorable, orextremely difficult to write/pronounce.

2) Consequence of a change in status (e.g.legitimation).

3) To avoid confusion. [Alfon v. Republic (1980)

]4) Having continuously used and been known

since childhood by a Filipino name, unawareof his/her alien parentage. [Ang Chay et al.v. Republic (1970)

]





5) A sincere desire to adopt a Filipino name toerase signs of former alienage, all in goodfaith and without prejudicing anybody. [Uy v.Republic (1965)

]

COURT ACTION [Rule 103, Sec. 3]

•

The court shall promulgate an order:1) Reciting the purpose of the petition;2) Fixing a date and place of hearing;3) Directing that a copy of the order be

published before hearing at least once aweek for 3 successive weeks in anewspaper of general circulation.

• The date for hearing shall not be within 30days prior to an election nor within 4 monthsafter the last publication of notice of hearing.

WHO MAY OPPOSE PETITION [Rule 103,Sec. 4

]

1) Any interested person;2) The Solicitor General (OSG) or the properprovincial/city fiscal shall appear on behalf of the Republic of the Philippines. The OSGmust be notified by service of a copy of thepetition.

WHEN CHANGE OF NAME MAY BEGRANTED [Rule 103, Sec. 5

]

• If there is satisfactory proof in open court onthe date fixed in the order that such orderhas been published as directed and that theallegations of the petition are true, the courtshall, if proper and reasonable cause appearsfor changing the name of the petitioner,adjudge that such name by changed inaccordance with the prayer of the petition.

• Judgments/orders allowing the change of name shall be furnished the civil registrar of the municipality/city where the court issuingthe same is situated, who shall forthwithenter the same in the Civil Register.

DISCREPANCY IN PETITION ANDPUBLISHED ORDER

A discrepancy in the name sought to be adoptedas stated in the petition and in the publishedorder constitutes a substantial defect because itdid not correctly identify the parties to theproceedings. As such, there is no strictcompliance with the publication requirement andrenders the entire proceedings null and void sincethe court has not acquired jurisdiction. [Jacobov. Republic]

B. CHANGE OF NAMEUNDER RA 9048

PROCEDURE IN CHANGE OF NAMEUNDER RA 9048

Petition with the civil registrar or consul general

Publication of the petition at least once a week for 2consecutive weeks

Posting by the civil registar of the petition in aconspicuous place for 10 consecutive days

Decision by the civil registrar within 5 days after thecompletion of the posting requirement

Transmission by the civil registrar of a copy of hisdecision (together with the records of the proceeding)

to the Civil Registrar General

The Civil Registrar General may impugn the decisionbased on grounds in RA 9048, and exercise appellate

jurisdiction

APPLICATION OF RA 9048 TO CHANGESOF NAME OR CORRECTIONS OFENTRIES IN THE CIVIL REGISTRY [RA9048, Sec. 1

]

• RA 9048 can only be used with regardsclerical or typographical errors and change of first or nickname which can be corrected orchanged by the Civil Registrar or by theConsul General as regards non-residents.

CLERICAL OR TYPOGRAPHICAL ERROR

[RA 9048, Sec. 2(3)

]

• Definition: A mistake committed in theperformance of clerical work inwriting/copying/transcribing/ typing an entryin the civil register that is harmless andinnocuous, such as misspelled name ormisspelled place of birth or the like, which isvisible to the eyes or obvious to theunderstanding, and can becorrected/changed only by reference to otherexisting record/s: Provided, however, That nocorrection must involve the change of nationality, age, status or sex of the

petitioner.

WHO MAY FILE PETITION [RA 9048, Sec.3]

• Any person having direct and personalinterest in the correction of aclerical/typographical error in an entry and/orchange of first name or nickname in the civilregister.

VENUE UNDER RA 9048 [RA 9048, Sec. 3]

1) Local Civil Registry of thecity/municipality where the record beingsought is kept.2) Local Civil Registry where the interestedparty is presently residing/domiciled: Only if the petitioner migrated to another place inthe country and it would not be practical forsuch party, in terms of transportationexpenses, time and effort to appear in personbefore the local civil registrar keeping thedocuments to be corrected or changed. In





this case, the 2 local civil registrarsconcerned will communicate to facilitate theprocessing of the petition.3) Philippine consulates: Only in cases of Philippine citizens who are residing/domiciledin foreign countries.

•All petitions for correction of errors/change of first names/nicknames may be availed of only once.

VALID GROUNDS FOR CHANGE OFFIRST NAME/NICKNAME UNDER RA9048[RA 9048, Sec. 4

]

1) When the name is ridiculous, dishonorable orextremely difficult to write/pronounce.

2) The new first/nick name has been habituallyand continuously used by the petitioner andhe has been publicly known by that first/nick

name in the community.3) To avoid confusion.

PETITION’S CONTENTS UNDER RA 9048[RA 9048, Sec. 5]

• The petition shall be in the form of anaffidavit, subscribed and sworn to before anyperson authorized by the law to administeroaths and shall set forth: [Secan Kok v.Republic (1973)

]1) The facts necessary to establishthe merits of the petition;

2) That the petitioner is competentto testify to the matters stated;3) The erroneous entry which aresought to be corrected;4) All names by which petitioner isknown.

ANNEXES TO THE PETITION [RA 9048,Sec. 5

]

1) A certified true machine copy of thecertificate or of the page of the registry bookcontaining the entries sought to becorrected/changed.

2) At least 2 public/private documents showingthe correct entries upon whichcorrection/change shall be based

3) Other documents which the petitioner or thecity/municipal civil registrar or the consulgeneral may consider relevant and necessaryfor the approval of the petition.

4) Certification from appropriate lawenforcement agencies that the petitioner hasno pending case or no criminal record.

PUBLICATION REQUIREMENT [RA 9048,Sec. 5]

• The petition must be published at least oncea week for 2 consecutive weeks in anewspaper of general circulation.

COPIES OF PETITION TO BE FILED[RA 9048, Sec. 5]

1) For the city/municipal civil registrar, or theconsul general;

2) For the Office of the Civil Registrar General.

3) For the petitioner.

DUTIES OF THE CITY/MUNICIPAL CIVILREGISTRAR OR THE CONSUL GENERAL[RA 9048, Sec. 6]

1) Examine the petition and its supporting

documents.2) Post the petition in a conspicuous placeprovided for that purpose for 10 consecutivedays after he finds the petition and itssupporting documents sufficient in form andsubstance.

3) Act on the petition and render a decision notlater than 5 working days after thecompletion of the posting and/or publicationrequirement.

4) Transmit a copy of his decision together withthe records of the proceedings to the Officeof the Civil Registrar General within 5working days from the date of the decision.

DUTIES AND POWERS OF THE CIVILREGISTRAR GENERAL [RA 9048, Sec. 7

]

1) Within 10 working days from receipt of the decision granting a petition, the CivilRegistrar General shall exercise the power toimpugn such decision by way of an objectionbased on the following grounds:

a) The error is not clerical/typographical.

b) The correction of entries is

substantial/controversial as it affects thecivil status of a person.

c) The basis used in changing the first/nickname of a person does not fall underthose provided by law.

2) The Civil Registrar General shallimmediately notify the city/municipal civilregistrar or the consul general of the actiontaken on the decision.3) He has appellate powers over thedecision of the local civil registrars/consulgenerals.

If the Civil Registrar General fails to exercise hispower to impugn within the prescribed period,the decision of the city/municipal civil registrar or

the consul general shall become final andexecutory.





X. CANCELLATION OR

CORRECTION OF ENTRIES IN

THE CIVIL REGISTRY

A. CANCELLATION OR

CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

UNDER RULE 108

PROCEDURE IN CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVILREGISTRY UNDER RULE 108

Petition for change of name

Court order fixing the date and place for hearing

Publication of the court order at least once a weekfor 3 successive weeks in a newspaper of general

circulation, with reasonable notice given to personsnamed in the petition

Filing of opposition by the civil registar and anyperson having/claiming interest under the entry

whose cancellation/correction is sought, within 15days from notice of the petition or from the last date

of publication of the notice


Judgment granting/denying the petition. Copy of the judgment shall be served upon the civil registrar,

who shall annotate the same

RULE 103, 108 AND RA 9048COMPARED

Cancellation/correctionof entries in the civilregistry (Rule 108)

Correction of clerical ortypographical error

(RA 9048)Judicial Administrative: Local civil

registrar or consulgeneral (for nonresidentcitizens)

Substantial changes (i.e.those affecting civilstatus, citizenship,nationality and substantialerrors)

Clerical/typographicalerrors and change infirst/nick name

Rule 103 Rule 108

Petition to be filed in theRTC where the petitionerresides

Verified petition filed inthe RTC where thecorresponding civilregistry is located

Civil registar is not aparty to the proceeding

Civil registrar concernedis made a party to theproceeding as arespondent. The OSGmust also be served acopy of the petition

Petition is filed by persondesiring to change hisname

Petition is filed by anyperson interested in anyact/event/order/decreeconcerning the civil statusof persons

Order for hearing shall bepublished once a week for3 consecutive weeks. No

mention of causing noticeto be sent

Order for hearing shall bepublished once a week for3 consecutive weeks AND

the court shall causereasonable notice to begiven to persons namedin the petition

• Cancellation/correction of entries in the civilregistry is a proceeding in rem. As such,strict compliance with all jurisdictionalrequirements, particularly on publication, isessential in order to vest the court with

jurisdiction.

WHO MAY FILE PETITION [Rule 108, Sec.1]

• Any person interested in anyact/event/order/ decree concerning the civilstatus of persons.

• The civil registrar and all persons whohave/claim any interest shall be made partiesto the proceeding.

VENUE [Rule 108, Sec. 1

]

• RTC of the place where the correspondingcivil registrar is located.

ENTRIES SUBJECT TO CANCELLATIONOR CORRECTION [Rule 108, Sec. 2

]

1) Births;2) Marriages;3) Deaths;4) Legal separations;5) Judgments of annulments of marriage;6) Judgments declaring marriages void ab initio;7) Legitimations;





8) Adoptions;9) Acknowledgements of natural children;10) Naturalization;11) Election/loss/recovery of citizenship;12) Civil interdiction;13) Judicial determination of filiation;14) Voluntary emancipation of a minor;15) Change of name.

COURT ORDER AFTER FILING OFPETITION

1) Fix the date and place for the hearing.2) Cause reasonable notice to be given to the

persons named in the petition.3) Cause the order to be published once a week

for 3 consecutive weeks in a newspaper of general circulation in the province.

4) Make orders expediting the proceedings, andmay also grant preliminary injunction for thepreservation of parties’ rights pending such

proceedings.5) Grant/deny the petition. In either case, acertified copy of the judgment shall be servedupon the civil registrar concerned, who shallannotate the same.

ACTIONS TO BE TAKEN TO OPPOSE THEPETITION [Rule 108, Sec. 5

]

• The civil registrar and any personhaving/claiming any interest under the entrywhose cancellation or correction is soughtmay file an opposition in court, within 15

days from notice of the petition or from thelast date of such notice.

B. CANCELLATION OR

CORRECTION OF ENTRIES IN

THE CIVIL REGISTRY UNDER

RA 9048

Note: The provisions of RA 9048 apply both tocancellation/correction of entries in the civil

registry and to change of name.

XI.APPEALS IN SPECIAL

PROCEEDINGS

APPEALABLE ORDERS/JUDGMENTS [Rule109, Sec. 1

]

1) If it dis/allows a will;2) If it determines who are the lawful heirs or

the distributive shares;3) If it wholly or partially dis/allows a claim

against a decedent’s estate, or any claimpresented on the estate’s behalf in offset to aclaim against it;

4) If it settles the account of anexecutor/administrator/trustee/guardian;

5) If it constitutes a final determination in thelower court of the rights of the partyappealing, in proceedings relating to estatesettlement or administration of atrustee/guardian;

• Exception: Appointment of a specialadministrator is not appealable.

6) If it is the final order/judgment rendered inthe case, and affects the substantial rights of

the person appealing.• Exception: Orders granting/denying a

MFR/MNT.

• While some of the items in Rule 109,Sec.1 may be considered as interlocutoryunder ordinary civil actions, the nature of special proceedings declares them asappealable and as exceptions to Rule 41,Sec. 2, [Regalado]

• Since multiple appeals are contemplatedunder this provision, appeals in specialproceedings necessitate a record on appeal

as the original record should remain with thetrial court. [Regalado

]

• In special proceedings, the period of appeal is 30 days, a notice of appeal and arecord on appeal being required. The appealperiod may be interrupted by the filing of aMFR/MNT. Once the appeal period expireswithout an appeal/MFR/MNT, the orderbecomes final. [Testate Estate of Biascan v.Biascan (2000)]





ADVANCE DISTRIBUTION [Rule 109, Sec.2]

• Notwithstanding a pendingcontroversy/appeal in estate settlementproceedings, the court may permit that the

estate’s parts which are not affected by thecontroversy/appeal be distributed, uponcompliance with Rule 90.

Documents

Remedial Law Formatted