Special Proceeding Research (1) (1)

8/10/2019 Special Proceeding Research (1) (1)

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Special Proceeding

Special Proceeding is defined as a remedy by which a party seeks to establish a

status, a right or a particular fact (Rule 1, Sec. 3c). In the absence of special provisions,

the rules provided for an ordinary action shall be, as far as practicable, applicable in

special proceedings

Special Proceedings Enumerated in the Rules of Court:

1. Settlement of estate of deceased persons

2. Escheat

3. Guardianship and custody of children

4. Trustees

5. Adoption

6. Rescission and revocation of adoption

7. Hospitalization of insane persons

8. Habeas corpus

9. Change of name

10. Voluntary dissolution of corporations

11. Judicial approval of voluntary recognition of minor natural children

12. Constitution of family home

13. Declaration of absence and death

14. Cancellation and correction of entries in the civil registry


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Ordinary Civil Action Special Civil Action Special Proceeding

One by which a party sues

another for the enforcement

or protection of a right or

the prevention or redress of

a wrong

Civil Action subject to

special rules

Remedy by which a party

seeks to establish a status,

a right, or a particular fact

Governed by the rules of

ordinary civil actions

Ordinary rules apply

primarily but subject to

specific rules

Governed by special rules

and ordinary rules apply as

supplementary

Involves two or more

parties

Involves two or more

parties

May involve only one party

Initiated by complaints Some are initiated by

complaint while some are

initiated by petition

Initiated by petition

Based on a cause of action Some special civil actions

have no cause of action

Not based on a cause of

action (Except Habeas

Corpus)


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II. Rules

This part presents the rules and proceedings of cases that concern special

proceedings that will provide as a guide when it comes to matters on remedies for the

status or rights of people.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

Estates (Rule 73-74)

There are numerous cases that deceased people have left behind estates that

will either be of interest to those who they have left behind or that would need to be

given an administration to. Thus a settlement must happen in order for the estate to be

properly settled. The RTC of the province of where the deceased resided is the court

that shall handle the case. In that case, if the probate court allows the introduction of

evidence on ownership it is for the sole purpose of determining whether the subject

properties should be included in the inventory, which is within the probate courts

competence. The determination is only provisional subject to a proper action at the RTC

in a separate action to resolve the title. The jurisdiction of the probate court merely

relates to matters having to do with the settlement of the estate and the probate of wills,

the appointment and removal of administrators, executors, guardians and trustees. The

question of ownership is, as a rule, an extraneous matter which the probate court cannot

resolve with finality (Intestate Estate of Ismael Reyes, Heirs of Reyes vs. Reyes, GR

139587, Nov. 2, 2000).


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In probate proceedings, the court orders the probate of the will of the decedent;

grants letters of administration of the party best entitled thereto or to any qualified

applicant; supervises and controls all acts of administration; hears and approves claims

against the estate of the deceased; orders payment of lawful debts; authorizes sale,

mortgage or any encumbrance of real estate; directs the delivery of the estate to those

entitled thereto; issue warrants and processes necessary to compel the attendance of

witnesses or to carry into effect their orders and judgments, and all other powers granted

them by law; if a person defies a probate order, it may issue a warrant for the

apprehension and imprisonment of such person until he performs such order or

judgment, or is released. The court acts as trustee, and as such, should jealously guard

the estate and see to it that it is wisely and economically administered, not dissipated

(Timbol vs. Cano, 111 Phil. 923).

Summary settlement of estate is a judicial proceeding wherein, without the

appointment of executor or administrator, and without delay, the competent court

summarily proceeds to value the estate of the decedent; ascertain his debts and order

payment thereof; allow his will if any; declare his heirs, devisee and legatees; and

distribute his net estate among his known heirs, devisees, and legatees, who shall

thereupon be entitled to receive and enter into the possession of the parts of the estate

so awarded to them, respectively.

If the decedent left no will and no debts and the heirs are all of age, or the minors

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

the parties may, without securing letters of administration, divide the estate among

themselves as they see fit by means of a public instrument filed in the office of the

register of deeds, and should they disagree, they may do so in an ordinary action of


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partition. If there is only one heir, he may adjudicate to himself the entire estate by

means of an affidavit filed in the office of the register of deeds. Where the estate has

been summarily settled, the unpaid creditor may, within the two-year period, file a motion

in the court wherein such summary settlement was had for the payment of his credit.

After the lapse of the two-year period, an ordinary action may be instituted against the

distributees within the statute of limitations, but not against the bond. The action to annul

a deed of extrajudicial settlement on the ground of fraud should be filed within four years

from the discovery of the fraud (Gerona vs. De Guzman, L-19060, May 29, 1964).

Wills (Rule 75-76)

Probate of a will is a proceeding in rem. It cannot be dispensed with and

substituted by another proceeding, judicial or extrajudicial, without offending public

policy. It is mandatory as no will shall pass either real or personal property unless proved

and allowed in accordance with the Rules. It is imprescriptible, because it is required by

public policy and the state could not have intended to defeat the same by applying

thereto the statute of limitation of actions (Guevara vs. Guevara, 74 Phil. 479)

The ones who may petition for probate or are entitled to notice are any executor,

devisee, or legatee named in a will, or any other person interested in the estate, may, at

any time after the death of the testator, petition the court having jurisdiction to have the

will allowed, whether the same be in his possession or not, or is lost or destroyed. The

testator himself may, during his lifetime, petition the court for the allowance of his will.

The will shall be disallowed if not executed and attested as required by law; if the

testator was insane, or otherwise mentally incapable to make a will, at the time of its

execution; if it was executed under duress, or the influence of fear, or threats; if it was


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procured by undue and improper pressure and influence, on the part of the beneficiary,

or of some other person for his benefit; if the signature of the testator was procured by

fraud or trick, and he did not intend that the instrument should be his will at the time of

fixing his signature there.

A will proved outside Philippines may be allowed here. Wills proved and allowed

in a foreign country, according to the laws of such country, may be allowed, filed, and

recorded by the proper Court of First Instance in the Philippines. When will allowed, and

effect thereof. If it appears at the hearing that the will should be allowed in the

Philippines, the court shall so allow it, and a certificate of its allowance, signed by the

judge, and attested by the seal of the court, to which shall be attached a copy of the will,

shall be filed and recorded by the clerk, and the will shall have the same effect as if

originally proved and allowed in such court. Certificate of allowance attached to prove

will.

The general rule universally recognized is that administration extends only to the

assets of the decedent found within the state or country where it was granted, so that an

administrator appointed in one state or country has no power over the property in

another state or country (Leon & Ghezzi vs. Manufacturers Life Ins., 80 Phil. 495).

When a person dies intestate owning property in the country of his domicile as well as in

foreign country, administration shall be had in both countries. That which is granted in

the jurisdiction of the decedents domicile is termed the principal administration, while

any other administration is termed ancillary administration. The ancillary administration is

proper whenever a person dies leaving in a country other than that of his domicile,

property to be administered in the nature of assets of the decedent, liable for his

individual debts or to be distributed among his heirs (Johannes vs. Harvey, 43 Phil. 175).


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Letters Testamentary and of Administration (Rule 77)

Letters testamentary is the appointment issued by a probate court, after the will

has been admitted to probate, to the executor named in the will to administer the estate

of the deceased testator, provided the executor named in the will is competent, accepts

the trust and gives a bond. Any person who is a minor, not a resident of the Philippines,

is in the opinion of the court unfit to execute the duties of the trust by reason of

drunkenness, improvidence, or want of understanding or intergrity or by reason of

conviction of an offense involving moral turpitude may not serve as executor or

administrator.

The administrator can be a surviving spouse, or next of kin, or both, or person as

such surviving spouse, or next of kin, requests; One or more of the principal creditorsif

such surviving spouse, or next of kin, or the person selected, be incompetent or

unwilling, or if they neglect for 30 days after the death of the decedent to apply for

administration or to request that administration be granted to some other person, it may

be granted to, if competent and willing to serve; Such other person as the court may

select.

Powers and duties of Executors and Administrators; restrictions on the powers

(Rule 84)

An executor is the person nominated by a testator to carry out the directions and

requests in his will and to dispose of his property according to his testamentary

provisions after his death. An administrator is person appointed by the court, in

accordance with the governing statute, to administer and settle intestate estate and such

testate estate as no competent executor was designated by the testator. Executor or

administrators are to keep buildings in repair. An executor or administrator shall maintain


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in tenantable repair the houses and other structures and fences belonging to the estate,

and deliver the same in such repair to the heirs or devisees when directed so to do by

the court.

An executor or administrator shall have the right to the possession and

management of the real as well as the personal estate of the deceased so long as it is

necessary for the payment of the debts and the expenses of administration.

An administrator of an intestate cannot exercise the right of legal redemption

over a portion of the property owned in common sold by one of the other co-owners

since this is not within the powers of administration (Caro vs. CA, 113 SCRA 10). Where

the estate of a deceased person is already the subject of a testate or intestate

proceeding, the administrator cannot enter into any transaction involving it without any

prior approval of the Court (Estate of Olave vs. Reyes, 123 SCRA 767). The right of an

executor or administrator to the possession and management of the real and personal

properties of the deceased is not absolute and can only be exercised so long as it is

necessary for the payment of the debts and expenses of administration (Manaquil vs.

Villegas, 189 SCRA 335).

When there is delay in granting letters testamentary or of administration by any

cause, including an appeal from the allowance or disallowance of a will, the court may

appoint a special administrator to take possession and charge of the estate of the

deceased until the questions causing the delay are decided and executors or

administrators appointed. Court may remove or accept resignation of executor or

administrator. Proceedings may happen upon death, resignation, or removal.


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Claims Against the Estate (Rule 86-87)

Administration is for the purpose of liquidation of the estate and distribution of the

residue among the heirs and legatees. Liquidation means the determination of all the

assets of the estate and payment of all debts and expenses. The purpose of

presentation of claims against decedents of the estate in the probate court is to protect

the estate of deceased persons. That way, the executor or administrator will be able to

examine each claim and determine whether it is a proper one which should be allowed.

Further, the primary object of the provisions requiring presentation is to apprise the

administrator and the probate court of the existence of the claim so that a proper and

timely arrangement may be made for its payment in full or by pro rata portion in the due

course of the administration, inasmuch as upon the death of a person, his entire estate

is burdened with the payment of all his debts and no creditor shall enjoy any preference

or priority; all of them shall share pro rata in the liquidation of the estate of the deceased.

The rule requires certain creditors of a deceased person to present their claims

for examination and allowance within a specified period, the purpose thereof being to

settle the estate with dispatch, so that the residue may be delivered to the persons

entitled thereto without their being afterwards called upon to respond in actions for

claims, which, under the ordinary statute of limitations, have not yet prescribed (Santos

vs. Manarang, 27 Phil. 213).

When there is delay in granting letters, testamentary or of administration by any

cause including an appeal from the allowance or disallowance of a will, the court may

appoint a special administrator to take possession and charge of the estate of the

deceased until the questions causing the delay are decided and executors or

administrators appointed.


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No action upon a claim for the recovery of money or debts or interest thereon

shall be commenced against the executor or administrator. An action to recover real or

personal property, or an interest therein, from the estate, or to enforce a lien thereon,

and actions to recover damages for an injury to person or property, real or personal, may

be commenced against the executor or administrator. Whenever a party to a pending

action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel

to inform the court within thirty (30) days after such death of the fact thereof, and to give

the name and address of his legal representative or representatives. Failure of counsel

to comply with this duty shall be a ground for disciplinary action. The heirs of the

deceased may be allowed to be substituted for the deceased, without requiring the

appointment of an executor or administrator and the court may appoint a guardian ad

litem for the minor heirs.

Payment of Debts (Rule 88-90)

If there are sufficient properties, the debts shall be paid, thus all debts shall be

paid in full within the time limited for the purpose; If the testator makes provision by his

will, or designates the estate to be appropriated for the payment of debts they shall be

paid according to the provisions of the will, which must be respected; If the estate

designated in the will is not sufficient, such part of the estate as is not disposed of by will

shall be appropriated for the purpose; The personal estate not disposed of by will shall

be first chargeable with payment of debts and expenses; If the personal estate is not

sufficient, or its sale would be detrimental to the participants of the estate, the real estate

not disposed of by will shall be sold or encumbered for that purpose; Any deficiency shall

be met by contributions from devisees, legatees and heirs who have entered into

possession of portions of the estate before debts and expenses have been paid; The


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executor or administrator shall retain sufficient estate to pay contingent claims when the

same becomes absolute.

If the estate is insolvent, the debts shall be paid in the following manner: The

executor or administrator shall pay the debts in accordance with the preference of

credits established by the Civil Code; No creditor of any one class shall receive any

payment until those of the preceding class are paid; If there are no assets sufficient to

pay the credits of any one class of creditors, each creditor within such class shall be paid

a dividend in proportion to his claim; Where the deceased was a non-resident, his estate

in the Philippines shall be disposed of in such a way that. It must be noted that the

payments of debts of the decedent shall be made pursuant to the order of the probate

court.

Before there could be a distribution of the estate, the following two stages must

be followed: Payment of obligations (liquidation of estate) under the Rules, the

distribution of a decedents assets may only be ordered when the inheritance tax, among

other is paid; when a sufficient bond is given to meet the payment of the inheritance tax

and all other obligations; and when the payment of the said tax and all other obligations

has been provided for. There must first be declaration of heirs to determine to whom the

residue of the estate should be distributed. A separate action for the declaration of heirs

is not proper. And likewise after, not before the declaration of heirs is made, may the

residue be distributed and delivered to the heirs. The settlement of a decedents estate

is a proceeding in rem which is binding against the whole world. All persons having

interest in the subject matter involved, whether they were notified or not, are equally

bound.


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When the debts, funeral charges, and expenses of administration, the allowance

to the widow, and inheritance tax, if any, chargeable to the estate in accordance with

law, have been paid, the court, on the application of the executor or administrator, or of a

person interested in the estate, and after hearing upon notice, shall assign the residue of

the estate to the persons entitled to the same, naming them and the proportions, or

parts, to which each is entitled, and such person may demand and recover their

respective shares from the executor or administrator, or any other person having the

same in his possession. If there is a controversy before the court as to who are the

lawful heirs of the deceased person or as to the distributive shares to which each person

is entitled under the law, the controversy shall be heard and decided as in ordinary

cases. No distribution shall be allowed until the payment of the obligations above

mentioned has been made or provided for, unless the distributees, or any of them, give a

bond, in a sum to be fixed by the court, conditioned for the payment of said obligations

within such time as the court directs. If at the time of the distribution the executor or

administrator has retained sufficient effects in his hands which may lawfully be applied

for the expenses of partition of the properties distributed, such expenses of partition may

be paid by such executor or administrator when it appears equitable to the court and not

inconsistent with the intention of the testator; otherwise, they shall be paid by the parties

in proportion to their respective shares or interest in the premises, and the

apportionment shall be settled and allowed by the court, and, if any person interested in

the partition does not pay his proportion or share, the court may issue an execution in

the name of the executor or administrator against the party not paying for the sum

assessed.


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Project of partition is a document prepared by the executor or administrator

setting forth the manner in which the estate of the deceased is to be distributed among

the heirs. If the estate is a testate estate, the project of partition must conform to the

terms of the will; if intestate, the project of partition must be in accordance with the

provisions of the Civil Code (Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629).

The only instances when the probate court may issue a writ of execution is when

there is a need to satisfy the contributing shares of devisees, legatees and heirs in

possession of the decedents assets; To enforce payment of expenses of partition; To

satisfy the costs when a person is cited for examination in probate proceedings.


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ESCHEATS (Rule 91)

Escheats is the proceeding whereby the real and personal property of a

deceased person in the Philippines, who dies without leaving any will or legal heirs,

becomes the property of the State upon his death. This doctrine is exercised because in

the order of succession under the Civil Code, the State is the last heir of the decedent.

There are three instances where escheats are executed. First, if the person dies

intestate leaving no heir but leaving a property in the Philippines. Second, in a form of a

reverter when the donee in tail or issue died without issue and a stranger abated. Third

is guided under the Unclaimed Balances Act where dormant accounts for atleast 10

years shall be escheated.

For the escheat to be valid, it must follow and fulfil the requisites. The requisites

are that there should be a person who died intestate, that the said person left no heirs or

persons by law entitled to the same, and that the deceased left properties.

The escheated property will be assigned not just to anyone or anywhere. There

are guidelines as to where the escheated property in question will go. When the proper

is a personal property of the deceased, it will be escheated to the municipality or city

where the deceased last resided. If the proper is a real property, it will go to the

municipality or city where the property is situated. Finally, if the deceased never resided

in the Philippines, it will go to the municipality or the city where the property may be

found.


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Rules on Guardianship of Minors (Rules 92-97)

Legal guardianship of a person and property of a minor is always vested in the

father and mother without the need for a court appointment. If, however, the parents or

other guardian of the minor or incompetent die, disappear or deprive them of parental

authority, guardianship can be petitioned by any relative, friend, other person on behalf

of a resident minor, and the Director of Health, in favour of the insane person who

should be hospitalized or an isolated leper.

Non-residents of the Philippines should not be appointed as guardians by the

courts. The courts are responsible for the protection of the estates of the deceased and

the welfare of minors. If guardianship is appointed to those who do not reside within

Philippine islands and outside their jurisdiction, the court will find it very difficult to

comply with their responsibility. (Guerrero, etc. v Teran, 13 Phil. 212)

The guardianship of a minor or an incompetent may be instituted at the Regional

Trial Court where the minor or incompetent resides or if the residence is in a foreign

country, then in the Regional Trial Court of the province that the property is located.

Under this rule, the word competent includes those persons suffering the penalty of civil

interdiction or who are hospitalized lepers, prodigals, deaf and dumb, illiterate, those

who have an unsound mind, those who have lucid intervals, and even those do not have

an unsound mind yet can become an easy prey for deceit and exploitation.

There is no need of payment or additional fees if ever a transfer of venue

occurs. The court taking care of the guardianship may transfer the same to a court of

another province where the ward acquired real property or has transferred to a bona fide

residence of that area.


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minor without judicial approval (Lindain v Court of Appeals , G.R. No. 95305, August 20,

1992)

As guardians are appointed by the court, they have their corresponding powers

and duties to fulfil. They are responsible for the care and custody of the persons of their

ward and the management of his estate. If the person of the ward of a guardian is a non-

resident, all the estate located within the Philippines shall be managed by the latter and

no court other than that in which such guardian was appointed shall have jurisdiction

over the guardianship. Conflicts regarding the ownership or title of the property in the

hands of the guardian in his capacity as such should be litigated in a separated

proceeding, the court in guardianship proceeding, being solely concerned with the

wards care and custody and proper administration of his properties. (Viloria v

Administrator of Veterans Affairs, L-9620, June 28, 1957)

The guardian is to pay the debts of the ward through proceeds from his own

personal estate and the income of his real estate. They are also tasked to collect debts,

settle accounts and appear in action for ward. The estate of the ward is to be managed

frugally and proceedings be applied to the maintenance of the ward. The guardian is

bound to exercise such diligence and prudence as reasonable men ordinarily employ in

the conduct of their own affairs and will be held liable for any loss which results from his

failure to exercise such prudence and diligence (Herrera, p. 301). A guardian may be

authorized to join in partition proceedings provided that there was a hearing conducted

regarding the matter, notice to the relatives of the ward and a careful investigation as to

the necessity and propriety of the proposed action. However only the expenses he

incurred for the execution of his trust is to be compensated and this should not exceed

15% of the net income of the ward. If embezzling or concealing of property by the

guardian is discovered, the proper criminal proceeding shall take place. He should also


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submit an inventory of his wards properties within three months to the court after his

appointment and annually thereafter.

There are numerous reasons as to why guardianship of a minor or an

incompetent is terminated. A person considered as an incompetent would need a

guardian for his care, custody and estates. Guardianship to an incompetent may be

terminated if it is found that he is no longer incompetent and must submit to the court a

petition of his present competence. Another reason for the guardianship to be terminated

is when the guardian is removed because of insanity, incapability or unsuitability to

discharge functions, wastage or mismanagement of the property of the ward or the

failure to make an account within 30 days. The guardian is reassigned when it reappears

to allow the same. Marriage, voluntary emancipation or coming of age of the minor are

also grounds for the termination of guardianship.


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Trustees (Rule 98)

"A trustee is a person appointed, or required by law, to execute a trust; one in

whom an estate, interest, or power is vested, under an express or implied agreement to

administer or exercise it for the benefit or to the use of another." (Blacks Law

Dictionary). Rules on special proceedings state that trustees are necessary to carry in

effects wills when the testator omitted to appoint a trustee in the Philippines

(Testamentary Trust) as well as other written instruments where the trustee therein

declines, resigns, dies, or is removed before the accomplishment of trust (Contractual

Trust).


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a. Adoption and Rescission and Revocation for Adoption (Amended)

Rules on Domestic Adoption (A.M. No. 02-6-02)

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


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Who may adopt (Section 4)

A. Any Filipino Citizen-

1. Of legal age;

2. In Possession of full civil capacity and legal rights;

3. Of good moral character;

4. Has not been convicted of any crime involving moral turpitude;

5. Emotionally and psychologically capable of caring for children;

6. At least 16 years older than the adoptee; and

7. In a position to support and care for his/her children in keeping with the

means of the family.

B. Any alien possessing the same qualifications as above, Provided:

1. That his country has diplomatic relations with the Philippines;

2. That he has been living in the Philippines for at least 3 CONTINUOUS

YEARS prior to the filing of the application for adoption;

3. Maintains residence until the adoption decree is entered;

4. Certified to have legal capacity to adopt by his count; and

5. That his government allows the adoptee to enter his country as hi adopted

child.

C. The guardian with respect to the ward after the termination of the guardianship

and clearance of his financial accountabilities.

Who may be adopted (Sec. 5)

1. Any person below eighteen (18) years of age who has been judicially declared

available for adoption or voluntarily committed to DSWD;


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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

person has been consistently considered and treated by the adopters as their

own child since minority;

5. A child whose adoption has been previously rescinded

6. A child whose biological or adoptive parents have died, but no proceedings shall

be initiated within 6 months from the time of death of said parents;

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

A Child Legally Available for adoption- it refers to a child who has been voluntarily or

involuntarily committed to the DSWD it to a duly licensed and accredited child-placing or

child caring agency, free of the parental authority of his biological parents or in case or

rescission of adoption, his guardian or adopter/s.

Two ways to commit a child

1.) Administratively/Voluntarily- In this case, the parent or guardian of the child

voluntarily committed him to the DSWD or any duly licensed child placement or

child caring agency. The child must be surrendered in writing. Such written

instrument must be notarized and signed in the presence of an authorized

representative of the department after counselling has been made to encourage

the parents to keep the child.

2.) Judicial/Involuntary- Following the procedure in the proposed rule on

commitment of children.

General rule- Husband and wife shall jointly adopt.


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Exceptions

1.) If one spouse seeks to adopt the legitimate child of the other;

2.) If one spouse seeks to adopt his own illegitimate son/ daughter provided that the

other spouse has signified his consent thereto;

3.) If the spouses are legally separated from each other.

Procedure

A. Order of Hearing

-It must be published at least once a week for 3 consecutive weeks

-At the discretion of the court, copies of the order of hearing shall be furnished to

the office of the Solicitor General. Through the provincial or city prosecutor, the

DSWD and the biological parents of the adoptee, IF KNOWN.

-If a change in the name of the adoptee is prayed for in the petition notice to the

Solicitor General shall be Mandatory.

B. Child and Home Study Reports

-The social worker verifies with the Civil Registry the real identity and the name

of the adoptee and the fact that he is legally available for the adoption.

-The social worker may make recommendations to the court if he finds some

grounds to deny the petition.

C. Hearing

It is to be held within 6 months from the date of issuance of the order except in

the case of application for change of name which hearing must not be within 4


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months after last publication nor within 30 days prior to election. The petitioner

and the adoptee must personally appear and the former must testify in court.

D. Supervised Trial Custody (STC)

Before issuance of decree of adoption the court shall give the adopter trial

custody of the adoptee for at least 6 months in order for the parties to adjust

psychologically and emotionally with each other and to establish a bonding

relationship.

E. Decree of Adoption

The decree of adoption shall take effect as of the date of filing of the original

petition. In case of change of name, the decree shall be submitted to the Civil

Registrar where the court issuing the same is situated. An amended birth

certificate shall be issued. The original birth certificate shall be stamped

cancelled and shall be sealed in the Civil Registry records.

Effects of Adoption

1. Adopter will exercise parental authority;

2. All legal ties between biological parents and the adoptee shall be severed except

when biological parent is spouse of adopter;

3. Adoptee shall be considered legitimate child of adopter for all intents and

purposes;

4. Adopters shall have reciprocal rights of succession without distinction from

legitimate filiation.


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Who may rescind the adoption?

The adopter cannot rescind the adoption, only the adoptee may rescind within 5

years from reaching the age of majority or after recovery from incompetency. Such a

petition for rescission is to be filed in the Family Court where the adoptee resides.

Inter-country Adoption (A.M. No. 02-6-02)

Where to File Petition (Sec. 28)

1. A verified petition to adopt a Filipino child may be filed by a foreign national or

Filipino citizen permanently residing abroad with the Family Court having

jurisdiction over the place where the child resides or may be found.

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

Who may Adopt

1. Any alien or Filipino citizen permanently residing abroad who is at least twenty

seven years of age

2. Other requirements are the same as with RA 8552.

Who may be adopted (Sec. 29)

Only a child legally available for domestic adoption may be the subject of Inter-

Country Adoption. A child under the Inter-Country Adoption Act is defined as any

person below fifteen (15) years of age.

The board shall ensure that all possibilities for adoption of the child under the Family

Code have been exhausted and that inter-country adoption is in the best interest of

the child.


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Contents of Petition (Sec. 30)

Petitioner must allege:

1.) His age and the age of the child to be adopted, showing that he is at least 27

years of age and at least 16 years older than the child to be adopted at the time

of application, unless the petitioner is the parent by nature of the child to be

adopted or the spouse of such parent, in which case the age difference does not

apply;

2.) If married, the name of the spouse who must be joined as co-petitioner except

when the adoptee is a legitimate child of his spouse;

3.) That he has the capacity to act and assume all rights and responsibilities of

parental author under his national laws, and has undergone the appropriate

counselling from an accredited counsellor in his country;

4.) That he has not been convicted of a crime involving moral turpitude;

5.) That he is eligible to adopt under his national law;

6.) That he can provide the proper care and support and instill the necessary moral

values and example to all his children, including the child to be adopted;

7.) That he agrees to uphold the basic rights of the child, as embodied under the

Philippine rules and regulations issued to implement the provision of Republic

Act No. 8043;

8.) That he comes from a country with which the Philippines has diplomatic relations

and whose government maintains a similarly authorized and accredited agency

and that adoption of a Filipino child is allowed under his national laws; and

9.) That he possesses all the qualifications and none of the disqualification provided

in the Rule.


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Annexes (Sec. 31)

The following must be in writing and officially translated in English:

1. Birth certificate of petitioner;

2. Marriage contract (if marriage and if applicable the divorce decree or judgement

dissolving the marriage)

3. Sworn statement of consent

4. Physical, medical and psychological evaluation

5. Income tax returns

6. Police clearance

7. Character reference

8. Full body postcardsize picture.

b.Rescission and revocation for the Adoption Rule (Amended by R.A. 8552)

Under the Domestic Adoption Act of 1988, the Adopter can no longer rescind the

adoption. He can merely disinherit the adoptee in accordance with the provisions of the

Civil Code. Rescission relates only as to the date of the judgement. Hence, vested rights

prior to rescission should be respected.

Who files:

1. Adoptee:

a. Over 18 years of age;

b. If still a minor with the assistance of DSWD.

2. Guardian or Counsel, if over 18 but incapacitated.


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Grounds for Rescission (Sec. 19)

1.) Repeated physical violence and verbal maltreatment by the adopter despite

having undergone counselling;

2.) Attempt on the life of the adoptee;

3.) Sexual assault or violence; or

4.) Abandonment or failure to comply with parental obligations

Period within which to file verified petition

Within 5 years from reaching the age of majority or after recovery from

incompetency. Adverse party shall file his ANSWER within 25 days from the receipt of

order of court requiring him to answer.

Effects of Judgement of Rescission

1.) Parental authority of biological parent or legal custody of DSWD will be restored;

2.) Reciprocal rights of adoptee and adopter will be extinguished;

3.) Vested rights acquired prior to judicial rescission shall be respected;

4.) Successional rights shall revert to its status prior to adoption, as of the date of

judgement of judicial rescission;

5.) Adoptee shall use the name stated in his original birth or foundling certificate;

6.) Civil registrar will reinstate his original birth or foundling certificate.

Unlike in revocation of guardianship, revocation of adoption is a separate proceeding

from the adoption.


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Proceedings for Hospitalization of Insane Persons (Rule 101)

Insanity is a condition of the mind which is so impaired in function or so deranged

as to induce a deviation from a normal conduct on the person so afflicted. A person

suffering from insanity has the option of hospitalization if the proper and conditions are

fulfilled. An insane person may be hospitalized under special proceedings by the

Director of Health with the assistance of city or provincial fiscal. The director of health

possesses the opinion that the commitment of the persons alleged to be insane is for

public welfare or to the welfare of said person. Also, such person or the one having

charge of him is opposed to his being taken to a hospital or asylum.

As a general rule, the burden of proving insanity is on the plaintiff who alleged it.

But as an exception to this rule, the defendant may prove the existence of insanity when

it is set up as an affirmative defense or the defense where it may absolve the defendant

from liability. To discharge the same, again, the director of health may file this petition in

the RTC which ordered the commitment, when he is of the opinion that the person is

permanently or temporarily cured or may be released without danger.

Habeas Corpus (Rule 102)

A writ of habeas corpus directs a person who detains another to produce the

body of the prisoner at a certain time and place, with the day and the cause of his

caption and detention, to do, submit to, and receive whatsoever the court or judge

awarding the writ shall consider in that behalf. This is the remedy for all cases of (1)

illegal detention or (2)where the rightful custody of a person is withheld from one entitled

to such custody. To be entitled to the writ, the standard required is actual and effective

restraint and not merely moral or nominal.


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However, actual physical restraint is not always required; any restraint which will

prejudice freedom of action is sufficient (Moncupa v. Enrile ). The fact that no physical

force was exerted to keep a person does not make less real the deprivation of his

personal freedom which includes the freedom of movement, freedom to transfer from

one place to another, freedom to choose ones residence. Freedom may be lost due to

internal moral compulsion, to founded or groundless fear, to erroneous belief in the

existence of an imaginary power of an impostor to cause harm if not blindly obeyed, to

any other psychological element, that may curtail the mental faculty of choice or the

unhampered exercise of the will. If the actual effect of such psychological spell is to

place a person at the mercy of another, the victim is entitled to the protection of the

courts of justice as much as the individual who is illegally deprived of liberty by duress of

physical coercion. It may also be availed of where, as a consequence of a judicial

proceeding, (a) there has been a deprivation of a constitutional right resulting in the

restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c)an

excessive penalty has been imposed, such sentence being void as to the excess. Where

a deprivation of a constitutional right is established, the court that rendered the judgment

is deemed ousted of jurisdiction and habeas corpus is the remedy to assail the legality of

detention.

A petition for habeas corpus is like a proceeding in rem as it is an inquisition of

the government, at the suggestion and instance of the individual, most probably, but still

in the name and capacity of the sovereign. It is constituted for the purpose of fixing the

status of a person. No judgment can be entered against anybody since there is no real

plaintiff and defendant.

Habeas corpus is not in the nature of a writ of error, nor is it intended as

substitute for the trial courts function. It cannot take the place of appeal, certiorari or writ


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of error. Thus, it cannot be used to investigate and consider questions of error that may

be raised relating to procedure or on the merits. The inquiry in a habeas corpus

proceeding is addressed to the question of whether the proceedings and the assailed

order are, for any reason, null and void. It is a summary remedy.

In order for habeas corpus to lie, it is necessary that the judgment of the court

which resulted in the allegedly illegal deprivation of liberty is no longer appealable, in

which case the writ is in the nature of a collateral attack against a final but void

judgment. If still appealable, there remedy is an appeal because habeas corpus is not a

substitute for appeal. It is not issued as a matter of right but in the sound discretion of

the court or judge.

What are not grounds for issuance of the writ? The alleged circumstances that

the information is invalid because the preliminary investigation is invalid and that the

offense has already prescribed are not grounds for the issuance of writ of habeas

corpus. If petitioner claims that no preliminary investigation had been validly conducted,

his remedy is to ask the court which issued the warrant of commitment for an

investigation or reinvestigation of the case. Habeas corpus will not lie where the person

alleged to be restrained of his liberty is in the custody of an officer under process issued

by a court which has jurisdiction to do so. The writ will not issue if the restraint is

voluntary.

The writ, if issued by the Supreme Court, may be made returnable before the

RTC. The latter court does not there by become merely a recommendatory body, whose

findings and conclusions are devoid of effect unless the Supreme Court acts on its

recommendation, but such lower court acquires the authority and the duty to inquire into

the facts and the law pertinent to the legality or illegality of the petitioners detention and


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to order his discharge from confinement should it find that he is unlawfully imprisoned or

restrained.

Petition must be verified but if not, it is not fatally defective in form. In

Villavicencio v. Lukban, the Supreme Court has held that it is the duty of a court to issue

the writ if there is evidence that a person is being unjustly restrained of his liberty within

its jurisdiction even if there is no application there for. However, it is necessary that the

person on whose behalf the petition is filed is under actual and effective restraint or

deprivation of liberty.

Where the person is detained under governmental authority and the illegality of

his detention is not patent from the petition for the writ, the court may issue a citation to

the government officer having the person in his custody to show cause why the writ of

habeas corpus should not issue. This is known as a preliminary citation, as distinguished

from the peremptory writ which is issued when the cause of the detention appears to be

patently illegal, and the non-compliance therewith is punishable.

If the detention is by reason of public authority, the return is considered prima

facie evidence of the validity of the restraint and the petitioner has the burden of proving

that the restraint is illegal. On the other hand, if the detention is by reason of private

authority, the return is considered only a plea of the facts asserted therein and the

person responsible for the detention has the burden of proof to establish that the

detention is legal and justified.

Where the prisoner has been detained and held without bail although the offense

is bail able, he may in a habeas corpus proceeding be allowed to post bail to ensure his

appearance before the court where he was charged with said offense. If the offense is

not bail able, as where it involves a capital offense and the evidence of guilt is strong, he


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cannot obtain his provisional liberty on bail by habeas corpus proceedings in another

court. If the person is detained under governmental authority and the illegality of his

detention is not patent from the petition for the writ, the court may issue a citation to the

government officer having the person in his custody to show because why the writ of

habeas corpus should not issue. This is known as a preliminary citation, as distinguished

from the peremptory writ which is issued when the cause of the detention appears to be

patently illegal, and the non-compliance therewith is punishable.

The release contemplated under a writ of habeas corpus is one which is free

from any involuntary restraint. When the person so released continues to be denied one

or more of his constitutional freedoms, where there is present a denial of due process, or

where the restraints are not merely involuntary but appear to be unnecessary, the

person concerned or those acting on his behalf may still avail of the privilege of the writ,

as in the case of Moncupa v. Enrile, a writ of habeas corpus reaches the body but not

the record, while a writ of certiorari reaches the record, but not the body. They are two

different things. Thus, certiorari may lie with the writ of habeas corpus for the purpose of

review, in recognition of the supervisory powers of superior courts, but the reverse is not

true, or where the petitioner has resorted to the remedy of appeal or certiorari because

habeas corpus, as stated earlier, cannot be made to perform the functions of a writ of

error or appeal for the purpose of reviewing mere errors or irregularities in the

proceedings of a court having jurisdiction over the person and the subject matter.

The writ of habeas corpus is not intended as a substitute for the functions of a

trial court and absent exceptional circumstances, the orderly course of trial should be

pursued and the usual remedies be exhausted before the writ may be invoked. Habeas

corpus is normally not available in advance of trial to determine jurisdictional errors that

may arise. While the extraordinary writ of habeas corpus is the appropriate remedy to


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them is the court may order a Temporary protection order. The court, justice, or judge,

upon motion or moto proprio, may order that the petitioner or the aggrieved party and

any member of the immediate family be protected in a government agency or by an

accredited person or private institution capable of keeping and securing their safety. If

the petitioner is an organization, association, or institution, the protection may be

extended to the officers involved. Another is the Inspection Order. In this relief, the court

may order any person in possession or control of a designated land or other property to

permit entry for the purpose of inspecting, measuring, surveying, or photographing the

property or any relevant object or operation thereon. Lastly, there is the Production

Order. The court may order any person in possession, custody, or control of any

designated documents, papers, books, accounts, letters, photographs, objects, or

tangible things, or objects in digitized or electronic form which constitute or contain

evidence relevant to the petition or the return to produce and permit their inspection,

copying, or photographing by or on behalf of the movant. These interim reliefs are also

available to the respondent after due hearing.

Judgement of the court shall be rendered within ten days from the time the

petition is submitted for decision. The Supreme Court may appeal within five days and

may raise questions of fact or law or both.

Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC)

The writ of habeas data is a remedy available to any person whose right to

privacy in life, liberty or security is violated or threatened by an unlawful act or omission

of a public official or employee, or of a private individual or entity engaged in the

gathering, collecting or storing of data or information regarding the person, family, home


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Similarly like the rule on the writ of amparo, the verified written return shall be filed

together with supporting affidavits within five working days and it shall contain the

following:

1. The lawful defense such as national security, state secrets, privileged

communications, confidentiality of the source of information of media and others

2. In case of respondent in charge, in possession or in control of the data or information

subject of the petition

3. Other allegations relevant to the resolution of the proceeding.

Failure to file a return shall mandate the court to proceed and hear the petition ex

parte, granting the petitioner such relief as the petition may warrant unless the court in

its discretion requires the petition to submit evidence. Making a false return or refusing to

make a return shall be punished by contempt.

The defense may invoke the characteristics of the information demanded by the

court to prevent it from being public. They are but only limited to subjects of national

security, state secrets, privilege communications, and confidentiality of the source of

information of media and others.

Change of Name (Rule 103)

There are certain instances in a persons life that would be the cause of a need

for the correction of ones name in the Local Civil registry. The grounds for the change of

name may be because it is tainted with dishonour as it may be ridiculous, consequence


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of a change of status like that of a legitimated child, a sincere desire to adopt a Filipino

name to erase signs of former alienage as long as it is in good faith without prejudicing

anyone and, necessity to avoid confusion. It must not be purely on the grounds of being

misspelled or wrongly registered because it constitutes Rule 108 or the Cancellation or

Correction of Entries in the Civil Registry. If the person desires to change his name then

he must present proper reasons through presenting not only important information about

him but also his parents. Thus he can petition for his name under the assurance that he

has proper and reasonable cause as to the change of name. [Republic v. Belmonte, et

al., L-32600, Feb 26, 1988]

A person petitioning for the change of his name shall present this at the Court of

First Instance of the province of his residence or at the Juvenile and Domestic Relations

Court in the City of Manila. The contents of said petition are that the petitioner should be

a bona fide resident of the province, the cause for which the change of petitioners name

is sought and, the name asked for. The proceeding starts with a petition to change his

name then the Court order fixing the time and place of it. This should be published once

every week for three consecutive weeks in a newspaper of general circulation. After the

schedule of place and time, the hearing of the court commences. Lastly is the service of

judgement either granting or denying the petition as this is all based on the reasons of

the person.


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Figure 103.1 Procedure for Change of name

Voluntary Dissolution of Corporations (Rule 104)

Under the Batas Pambansa Bilang 68 or also known the corporation code, a

corporation is defined as an artificial being created by the operation of law, having the

right of succession and the powers, attributes and properties expressly authorized by

law or incident to its existence. Rule 104 of the Revised Penal refers to the Voluntary

dissolution of corporations wherein purpose of a petition is for the dissolution of a

corporation. This shall be signed by a majority of the corporation, board of directors or

the officers managing the corporations affairs. This should be filed at the Court of First

Instance of the province where the corporation is located and must be published by a

newspaper of general circulation once every week for four (4) consecutive weeks. [B.P.

Blg. 68 or the Corporation Code; Regalado F., Remedial Law Compendium]

Petition of Change of Name

Court order fixing the date and

Publication of Court Order at anewspaper of general circulation

Hearing on the petition

Judgement granting/denying the

petition of the change of name


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Judicial Approval of Voluntary Recognition of Minor Natural Children (Rule 105)

The filiation of illegitimate children is governed by Articles 172, 173 and 175 of

the Family Code whereas the petition for the judicial approval of a voluntary recognition

of a minor natural child shall contain the names and residence of the parents who

acknowledge the child, A record of birth of the child and any public or written document

signed by the parent/s regarding the filiation of the illegitimate child.

In case the absence of the preceding allegations, the evidences needed to

constitute the proof needed for the legitimate filiation are an open and continuous

possession of the status of the legitimate child and any other means mentioned in the

Rules of Court and other special laws. The same goes if it takes in effect of judicial

approval of the Rules of Court. Under Article 173 of the Family Code, A child may or

may claim the legitimacy throughout his lifetime through Article 175 which provides that

the establishment of the illegitimate filiation is the same way as how the legitimate

children prove the validity.

Constitution of Family Home (Rule 106)

Owning a family home is considered as one of the properties of the family and it

is the head of a family owning a house and the land which it is placed may be the one to

file a petition of its ownership at the Court of First Instance of the province or city where

the property is situated. The petition should also contain information like description of

property, its estimated value, an encumbrance, the names of those interested in the

property and the beneficiaries. An information that any of the beneficiaries reside in that

property is also needed. Before the effective time of the New Family Code, there should

have been a verified petition of a judicial constitution of the family in the property as


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home. Now, it is no longer needed after the August 3, 1988 approval of the New Family

Code. (Juanita Ramos, et al. v. Danilo Pangilinan, et al., G.R. No. 185920, July 20,

2010)

A mortgagee is a person or organization, like that of a bank, which lends money

to someone for buying property. If a particular property is under fire, all the creditors,

mortgagees and all persons interested in it are to be notified through distributing copies

and publishing in a newspaper of general circulation the information about it once every

week for three consecutive weeks. Any petition filed by the family shall be approved and

their home saved if the propertys estimated value does not exceed twenty to thirty

thousand pesos and that no third person is prejudiced by it.

Absentees (Rule 107)

There is a rule when a person who is supposedly expected to administer his

property disappears without notice. An absentee is the one who disappears from his

domicile and his whereabouts being unknown and without having left an agent to

administer his property or the power of the agent has expired. The rule on absentees

assigns a person to take over the absentees' property via petition of appointment of the

court as long as the person is authorized if the period of absence is during the first two

years.

If the person who disappeared, still without any news since the receipt (after two

years if without an administrator or after five years if with an administrator), then the

remedy will be a petition for declaration of absence and appointment of administrator or

trustee. The said petition can be instituted by either the spouse if present, the heirs

instituted in a will, relatives who would succeed via the law of intestacy, or those who


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have over the property of the absentee some right subordinated to the condition of his

death.

If the absence is beyond seven years (or four years under extraordinary

circumstances), then the absentee is considered dead for all intents and purposes

except for purposes of succession. For purposes of marriage, four years continuous

absence shall be sufficient for present spouse to remarry, and only two years under

extraordinary circumstance of marriage.

Cancellation or Correction of Entries in the Civil Registry (Rule 108)

Cancellation or Correction of Entries in the Civil Registry includes information on

birth, marriages, death, legal separations, judgements of annulments or marriage,

judgements declaring marriage void from the very beginning, legitimations, adoptions,

acknowledgements of natural children, naturalization, election, loss or recovery of


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citizenship, civil interdiction, judicial determination of filiation, voluntary emancipation of a

minor and change of name. Any person interested in any act, event, order or decree

concerning the civil status of persons recorded in the civil registry are authorized to file a

petition. It can be filed in the RTC of the province where the corresponding civil

registrant is located.

Proceeding under this rule may be classified as summary or adversarial.

Summary is when the correction in question is a mere clerical error and adversarial is

where the rectification affects civil status, citizenship, or even nationality of a party or any

other substantial change. Take note that proceedings for the correction of entries should

not be considered as establishing one's status in a manner conclusively beyond dispute.

The status corrected would not have a superior quality for evidentiary purposes. There is

no increase or diminution of substantive right (Chiao Ben Lim vs. Zosa, L-40252, Dec.

29, 1986)


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R.A. 9048 Clerical Error Act

Republic Act No. 9048 also known as the Clerical Error Act is one of the unique

cases of special proceedings. This is a law passed to amend Article 412 of the New Civil

Code. It is stated that No entry in a civil register shall be changed or corrected without a

judicial order, except for clerical or typographical errors and change of first name or

nickname which can be corrected or changed by the concerned city or municipal civil

registrar or consul general in accordance with the provisions of this Act and its

implementing rules and regulations. Clerical or typographical errors refers to the mistake

committed in the performance of clerical work in either writing, typing, copying, or

transcribing as entry in the civil register that is harmless. This includes misspelled

names, place of birth and the like which can be immediately corrected by reference to

other existing records. The initiation of the law removes the limitation of minor changes

(such as clerical errors) and corrections of all entries in the civil register by no longer

mandating it to comply with a judicial order.

Any person of legal age, having direct and personal interest in the correction of a

clerical or typographical error in an entry, and/or change of first name or nickname in the

civil register is an eligible person to file for correction. They may file in either the City or

Municipal Civil registrar or Consul General (if in a foreign country; nearest Philippine

Consulate)


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III. Venue and Jurisdiction of Special Proceedings

Special Proceeding Venue Jurisdiction

Settlement of the Estate Residence of the decedent

or if the decedent is a non-

resident, place where he

had an estate

MTC if the gross value of

the estate does not excee

P400,000 in Metro Manila

RTC if the gross value of

the estate exceeds the

above amounts

Escheat a. Person dies

intestate leaving no

heir Resident of

the decedent or if

non-resident, in the

place where he had

an estate

RTCb. Reversion where

the land lies in whole

or in part

c. Unclaimed Balances

Act where the

dormant deposits

are located

Appointment of Guardians Where the minor or Family Court (in case of


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incompetent resides Minors)

RTC, Regular Courts (in

case of incompetents)

Appointment of Trustees Where the will was allowed

or where the property or

portion thereof affected by

the trust is situated

RTC

Domestic Adoption Where the adopter resides Family Court

Inter-Country Adoption Where the adoptee resides

if filed with the family court

Family Court or the Inter-

Country Adoption Board

Rescission of Adoption Where the adoptee resides Family Court

Habeas Corpus Where the detainee is

detained (if the petition is

filed with the RTC)

SC, CA, RTC, MTC in the

province or city in case

there is no RTC Judge;

Sandiganbayan only in aid

of its appellate jurisdiction

Custody of Minors Province or city where

petitioner resides or minor

may be found

Family Court

Habeas Data Where the petitioner or

respondent resides or that

which has jurisdiction over

the place where the data or

information is gathered

RTC;

Sandiganbayan, CA, or

SC when the action

cocerns public data files or

government offices


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collected or stored at the

option of petitioner

Amparo Proceedings Where the thread act or

omission was committed or

any of its elements occurred

RTC;

Sandiganbayan, CA, or

SC or any justice thereof

Habeas Corpus in relation to

minor

Where the petitioner resides

or where the minor may be

found

Family Court, CA, and SC

Change of Name Where the petitioner resides RTC

Appointment of

Representative of

Absentee/Declaration of

Absence

Where the absentee resided

before his disappearance

RTC

Cancellation/Correction of

Entries in the Civil Registries

Where the corresponding

Civil Registry is located

RTC

Petition for Declaration of

Nullity, Annulment, Legal

Separation

Where the petitioner or

respondent has been

residing for at least 6

months prior to the date of

filing, in case of non-

resident respondent, where

he may be found at the

election of the petitioner

Family Court


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Reference:

Remedial Law Compendium Volume II Seventh revised edition (special

proceedings, criminal procedure, evidence

by Florenz D. Regalado

Documents

Special Proceeding Research (1) (1)