Definitions Special Proceedings My Reviewer

7/28/2019 Definitions Special Proceedings My Reviewer

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page 44.

What must the proponent prove during a reprobate proceeding? (5).

1. the testator was domiciled in the foreign country;2. that the will has been admitted to probate in such country;

3. that the foreign court was under the laws of said foreign country, a probate courtwith jurisdiction over the proceedings;4. the law on probate procedure in said foreign country is proof of compliance

therewith; and5. the legal requirements in said foreign country for the valid execution of the will

(Fluemer vs Hix, 54 PHIL 610)

What are the effects of allowance of will under this rule? Rule 77. (3).

1. The will shall be treated as if originally proved and allowed in Philippine courts;2. Letters testamentary or administration with a will annexed shall extend to all

estates of the Philippines;3. After payment of just debts and expenses of administration, the residue of the

estate shall be disposed of as provided by law in cases of estates in the Philippinesbelonging to persons who are inhabitants of another state or country.

Page 60.

Enumerate the grounds under rule 82 section 2 where a court may remove oraccept resignation of an executor or administrator: (6).

1. neglects to render his account and settle the estate according to law;2. or to perform an order or judgement of the court;3. or a duty expressly provided by the rules of court;4. or absconds;5. or becomes insane;6. or otherwise incapable or unsuitable to discharge the trust.

Cite examples of a valid removal of an administrator by the probate court. (4).

1. An administrator who disbursed funds of the estate without judicial approval.2. False representation by an administrator in securing his appointment.3. An administrator who holds an interest adverse to that of the estate or by his

conduct shows unfitness to discharge the trust.4. An administrator who has physical inability and consequent unsuitability to mange

the estate.

Rule 78.

Who are incompetent to serve as executors or administrators? (MNO) (3).

1. is a minor;2. is not a resident of the Philippines; and3. Is in the opinion of the court unfit to execute the duties of the trust by reason ofdrunkenness, improvidence, or want of understanding or integrity, or by reason of convictionof an offense involving moral turpitude.

Order of preference Letters of Administration (4).


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1. Surviving husband or wife, or the next of kin, or both, by the discretion of the court.2. Person requested to be appointed by the surviving husband or wife, or next of kin.3. One or more of the principal creditors.4. Such other person that the court may select.

Must a contingent claim filed in the probate proceeding contain a certification

against non-forum shopping, failing which such claim should be dismissed?

Shekker versus Shekker, page 6.

Issue: Did the RTC err in dismissing petitioners contingent money claim against respondentestate for failure of petitioner to attach to his motion a certification against non-forumshopping? Yes.

The Supreme Court ruled in the affirmative.

The certification of non-forum shopping is required only for complaints and other initiatorypleadings. A money claim is only an incidental matter in the main action for settlement ofthe decedents state; it is not an initiatory pleading. Hence the petitioners contingentmoney claim, not being an initiatory pleading, does not require a certification against non-forum shopping.

What are the possible consequences if in the course of intestate proceeding, awill is later discovered?

The possible consequences are as follows:

1. The intestate proceeding will be consolidated with a new testate proceeding and thejudge will continue to hear both cases.

2. The intestate proceeding will be replaced by a testate proceeding, however, this iswithout prejudice to the continuation of the proceeding as an intestacy.

As to whether the intestate proceeding already commenced should be discontinued and anew proceeding under a separate number and title should be constituted is entirely a matterof form and lies within the sound discretion of the court.

However, the mere discovery of a document purporting to be the last will and testament ofthe decedent does not however ipso facto nullify the letter of administration until the willhas been proved and allowed.

Qualifications under RA Act No. 8043 or the Inter-Country Adoption Act of 1995,page 140.

Who may adopt.

An alien or a Filipino citizen permanently residing abroad may file an application for inter-

country adoption of a Filipino child.

Qualifications (9).

1. is at least twenty (27) years of age and at least sixteen (16) years older than thechild to be adopted, at the time of application

unless:


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the adopter is the parent by nature of the child to be adopted; or the spouse ofsuch parent;

2. if married, his her spouse must jointly file for the adoption;3. has the capacity to act and assume all rights and responsibilities of parental

authority under his national laws, and has undergone the appropriate counselling

from an accredited counsellor in his her country;4. has not been convicted of a crime involving oral turpitude;5. is eligible to adopt under his her national law;6. is in a position to provide the proper care and support and to give the necessary

moral value and example to all his children, including the child to be adopted;7. agrees to uphold the basic rights of the child as embodied under Philippines laws,

the U.N. Convention on the Rights of the Child, and to abide by the rules andregulations issued to implement the provisions of this Act;

8. comes from a country with whom the Philippines has diplomatic relations andwhose government maintains a similarly authorized and accredited agency andthat adoption is allowed under his her national laws; and

9. possess all the qualifications and none of the disqualifications provided herein andin other applicable laws (Section 9).

Qualifications under Republic Act No. 8552 or the Domestic Adoption Act of 1998

Who may adopt (FAG). (3).

1. Any Filipino citizen;2. Any alien possessing the same qualifications as that for Filipino nationals;3. The guardian with respect to the ward.

Qualifications.

Filipino citizen. (4).

1. legal age, in possession of full civil capacity and legal rights;2. of good moral character, has not been convicted of any crime involving moral

turpitude;3. emotionally and psychologically capable of caring for children;4. at least sixteen (16) years older than the adoptee. (waived when the adopter is the

biological parent of the adoptee, or is the spouse of the adoptees parent).

ALIEN. (5).

1. Same as the qualifications of a Filipino citizen;2. His her country has diplomatic relations with the Republic of the Philippines;3. That he she has been living in the Philippines for at least three (3) continuous years

prior to the filing of the application for adoption and maintains such residence untilthe adoption decree is entered;

4. He she has been certified by his her diplomatic consular office or any appropriategovernment agency that he she has the legal capacity to adopt in his her country;

5. His her government allows the adoptee to enter his her country as his her adoptedson daughter.

Residency and certification of the aliens qualification to adopt in his her countrymay be waived for the following: (4),


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1. a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degreeof consanguinity or affinity; or

2. one who seeks to adopt the legitimate son daughter of his her Filipino spouse; or3. if one spouse seeks to adopt his her own illegitimate son daughter: provided,

however, that the other spouse has signified his her consent thereto; or

4. if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son daughterof the other, joint parental authority shall be exercised by the spouses.

Guardian.

Only after the termination of the guardianship and clearance of his her financialaccountabilities (Section 7).

Habeas Corpus Extensions Rightful Custody.

Habeas Corpus may be resorted to in cases where rightful custody is withheld from a personentitled thereto.

Under Article 211 of the Family Code, respondent and petitioner have joint parentalauthority over their child and consequently joint custody. Further, although the couple isseparated de facto; the issue of custody was yet to be adjudicated by the court. In theabsence of a judicial grant of custody to one parent, both parents are still entitled to thecustody of their child. In the present case, Salientes versus Abanilla, private respondentscause of action is the deprivation of his right to see his child as alleged in his petition.Hence, the remedy of Habeas Corpus is available to him.

Republic versus Marcos.

Issue: Whether or not the probate court gravely erred in failing to consider that respondentsImelda R. Marcos and Ferdinand Marcos THE SECOND should be disqualified to act and serveas executors.

The Supreme Court ruled that they are qualified because said decision is still pendingappeal.

Therefore, since respondent Ferdinand Marcos THE SECOND has appealed his convictionrelating to four violations of Section 45 of the NIRC, the same should not serve as a basis todisqualify him to be appointed as an executor of the will of his Father. More importantly,even assuming arguendo that his conviction is later on affirmed, the same is still insufficientto disqualify him as the failure to file an income tax return is not a crime involving moralturpitude.

What is adoption? Page 137.

It is defined as a juridical act, a proceeding in rem, which creates between two persons arelationship similar to that which results from legitimate paternity and filiation. Only anadoption made through the court is valid in this jurisdiction. It is not a natural law at all, butis wholly and entirely artificial. To establish the relation, the statutory requirements must bestrictly carried out; otherwise, the adoption is an absolute nullity. The fact of adoption isnever presumed, but must be affirmatively proved by the person claiming its existence,such as by the decree of adoption issued by the court. Lazatin versus Campos, 92 SCRA250).


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Who may be adopted under RA No. 8552. (5).

1. Any person below eighteen (18) years of age who has been administratively orjudicially declared available for adoption;

2. The legitimate son daughter of one spouse by the other spouse;

3. An illegitimate son daughter by a qualified adopter to improve his her status to thatof legitimacy;4. A person of legal age if prior to the adoption, said person has been consistently

considered and treated by the adopter adopters as his her own child sinceminority;

5. A child whose adoption has been previously rescinded;6. A child whose biological or adoptive parent parents has died:

Provided that no proceedings shall be initiated within six (6) months from the time of deathsaid parent parents. Section 8.

Under RA 8043 only a legally free child may be the subject of inter countryadoption. Section 8.

What is a clerical typographical error? Page 252.

A clerical error is one which is visible to the eye or obvious to the understanding; an errormade by the clerk or a transcriber; a mistake in copying or writing, or some harmless orinnocuous change such as correction of a name that is merely misspelled or a misstatementof the occupation of the parties. Yu versus Civil Registrar of Manila.

Define the Writ of Habeas Data under Section 1 page 215.

It is a remedy available to any person whose right to privacy in life, liberty, or security sviolated or threatened by an unlawful act or omission of a public official or employee, or of aprivate individual or entity engaged in the gathering, collecting or storing of data orinformation regarding the person, family, home and correspondence of the aggrieved party.

Page 77.

Claim of the Estate against a Third Person.

As a general rule, a probate court has no jurisdiction to entertain a claim in favour of theestate against a third person as the same must be the subject of an ordinary action.

The exception to this Rule is provided under rule 86, Section 10. It authorizes the executoror administrator to interpose any counterclaim in offset of a claim against the state. Saidcounterclaim is regarded as a compulsory counterclaim as the failure to file the same shallbar the claim forever.

page 77, BAR QUESTION (2002).

X filed a claim in the intestate proceedings of D. Ds administrator denied liability and filed acounterclaim against X. Xs claim was disallowed.

1. Does the probate court still have jurisdiction to allow the claim of Ds administrationby way of offset? Why?


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The probate court has no jurisdiction to allow the claims of Ds administrator by way ofoffset because it appears that there is no amount against which to offset the claim.

2. Suppose Ds Administrator did not allege any claim against X by way of offset. CanDs administrator prosecute the claim in an independent proceeding? Why?

Ds administrator can proceed with the claim in an independent action since the claim of Xwas disallowed.

Where X had a valid claim and Ds administrator did not allege any claim against X by wayof offset, his failure to do so would bar his claim forever.

Rule 72.

Define Special Proceeding.

It is a remedy by which a person seeks to establish a status, a right, or a particular fact.

What is a civil action?

A civil action is an action by which a party sues another for the enforcement or protection ofa right or the prevention or redress of a wrong.

Pursuant to Rule 1, Section 3 of the 1997 Rules of Civil Procedure, a civil action is one bywhich a party sues another for the enforcement or protection of a right, or the prevention orredress of a wrong while a special proceeding under the same rule provides that it is aremedy by which a party, seeks to establish a status, a right or a particular fact. Unlikeactions, a special proceeding is generally commenced by application, petition, or specialform of pleading as may be provided for by the particular rule of law.

What is a criminal action?

A criminal action is one by which the State prosecutes a person for an act or omissionpunishable by law.

What is succession?

Article 774. Succession is a mode of acquisition by virtue of which the property, rights, andobligations to the extent of the value of the inheritance, of a person are transmittedthrough his death to another or others either by his will or by operation of law.

What is a will?

Article 783. A will is an act whereby a person is permitted, with the formalities prescribedby law, to control to a certain degree the disposition of his estate, to take effect after hisdeath.

Rule 73.

What is the meaning of the term resides?

Resides should be viewed or understood in its popular sense, meaning, the personal,actual or physical habitation of a person, actual residence of place of abode. It signifiesphysical presence in a place and actual stay thereat. In this popular sense, term meansmerely residence, that is, personal residence, not legal residence or domicile. Residence


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simply requires bodily presence as an inhabitant in a given place, while domicile requiredbodily presence in that particular place and also an intention to make ones domicile. Noparticular length of time of residence is required though; however, the residence must bemore than temporary. (Garcia Fule versus CA, 74 SCRA 189).

Rule 74.

What is summary settlement of small value?

It is a summary proceeding without need of an appointment of an administrator or executorfor the settlement of the estate of a deceased person who died testate or intestate, wherethe gross value thereof dose not exceed Ten thousand pesos.

What is an Affidavit of Self-Adjudication?

It is an affidavit required by Rule 74, Section 1 to be executed by the sole heir of a deceasedperson in adjudicating to himself the entire estate left by the decedent. It is filed with theRegistry of Deeds.

Rule 75.

Explain Probate or Allowance of Wills.

It is the act of proving in court a document purporting to be the last will and testament of acertain deceased person for the purpose of its official recognition, registration, and carryingout its provision in so far as they are in accordance with law. (Blacks Law Dictionary)

Is the allowance of a will necessary?

Yes, the allowance of a will is necessary. Rule 75, Section 1 is explicit. No will shall passeither real or personal estate unless it is proved and allowed in the proper court.

Rule 75. Section 1. Allowances necessary. Conclusive as to execution. --- No will shall passeither real or personal estate unless it is proved and allowed in the proper court. Subject tothe right of appeal, such allowance of the will shall be conclusive as to its due execution.

Rule 76.

Define Probate of a Will.

It is the act of proving in court a document purporting to be the last will and testament of acertain deceased person for the purpose of its official recognition, registration, and carryingout its provision in so far as they are in accordance with law. (Blacks Law Dictionary)

Rule 78.

Differentiate an Executor from an Administrator.

An executor is a person named expressly by the deceased person in his will to administer,settle, and liquidate his estate, while an administrator is a person appointed by the intestatecourt to administer the estate of a deceased person who: a) dies without leaving a will; b) ordid not name any executor even if there was a will; c) or if there be one named, he isincompetent, refuses the trust or fails to give a bond, or that the will subsequently, isdeclared null and void.


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Define Letters Testamentary.

It is the authority issued to an executor named in the will to administer the estate.

Define Letters of Administration.

It is an authority issued by the court to a competent person to administer the estate of thedeceased who died intestate.

Rule 80.

Define a Special Administrator.

A Special Administrator is a representative of the decedent appointed by the probate courtto care for and preserve his estate until an executor or general administrator is appointed.

Rule 82.

What is liquidation?

Liquidation means the determination of all the assets of the estate payment of all debts andexpenses.

Rule 85.

What are Administration Expenses?

Administration expenses should be those which are necessary for the management of theestate, for protecting it against destruction or deterioration, and possibly, for the productionof fruits. They are expenses and its management for purposes of liquidation, payment ofdebts, and distribution of the residue among the persons entitled to thereto.

What are Necessary Expenses?

Necessary expenses of administration are such expenses as are entailed for thepreservation and productivity of the estate and for its management for purposes ofliquidation, payment of debts, and distribution of the residue among persons entitledthereto. (Lizarraga Hermanos versus Abada, 40 Phil. 124)

Expenses for renovation and improvement of the family residence, incurred to preserve thefamily home and to maintain the familys social standing in the community are allowable aslegitimate administration expenses of the estate of the deceased. (Guzman versus DeGuzman Carillo, 83 SCRA 256).

Rule 86.

What is the so called Statute of Non-Claims?

It is the period fixed by Section 2 of Rule 86 for the filing of the claims against the estate.The rule mandates certain creditors of a deceased person to present their claims forexamination and allowance within a specified period, the purpose thereof being to settle theestate with dispatch, so that the residue may be delivered to the persons entitled theretowithout their being afterwards called upon to respond in actions for claims, which under the


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ordinary statute of limitations, have not yet prescribed. (Santos versus Manarang, 27 Phil.213). It must not be less than six months and must not be more than one year.

What is the meaning of money claims that must be filed in the testate orintestate proceedings?

Money claims are claims for money, debt , or interest thereon upon a liability contracted bythe decedent before his death. Claims contracted after his death cannot therefore bepresented with the exception of funeral expenses and expenses incurred on the lastsickness of the decedent.

What is a contingent claim?

It is one by which, by its nature is necessarily dependent upon an uncertain event for itsexistence and claim, and its validity and enforceability depending upon an uncertain event.(Gasket and Co. VERSUS Tan Sit, 43 Phil 810).

It is one which, by its nature, is necessarily dependent upon an uncertain event for itsexistence and validity. It may or not develop into a valid and enforceable claim and itsvalidity and enforceability depending upon an uncertain event. It is one which, by its nature,is necessarily dependent upon an uncertain event for existence or validity, one of which mayor may not develop into a valid and enforceable claim. (Buan versus Laya, 102 Phil. 682).

Rule 90.

What is liquidation?

It means that the determination of all assets of the estate and payment of all debts andexpenses.

Rule 91.

What is the concept of escheat?

It is a proceeding whereby the real and personal property of a deceased person become theproperty of the State upon his death without leaving a will or legal heirs. It is not anordinary action but a special proceeding, and commenced by petition and not by complaint.(Municipal Council of San Pedro, Laguna, et al. VERSUS Colegio de San Jose, Inc., et al., 65Phil. 318)

Rule 92.

Define Guardianship.

It is a trust relation of the most sacred character, in which one person called a guardianacts for another called the ward whom the law regards as incapable of managing his own

affairs.

A guardianship is designed to further the wards well-being not that of the guardian. It isintended to preserve the wards property, as well as to render any assistance that the wardmay personally require.

Define a Guardian.


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A guardian is a person in whom the law has entrusted the custody and control of the personor estate or both of an infant, insane or other person incapable of managing his own affairs.

Differentiate General from Limited Guardian.

A general guardian is one whose responsibility is over the person of the ward or over his

property while a limited guardian is over the property only.

Who is a legal guardian?

A legal guardian is a person who, without the need of judicial appointment, is designated assuch by provision of law as in the case of the parents over the persons of their minorchildren.

Who is a guardian add litem?

A guardian add litem is any competent person appointed by the court to prosecute for ordefend a minor, insane or person declared to be incompetent, in an action in court.

Rule 98

Trustees.

A trust is a confidence reposed in one person, called the trustee, for the benefit of another,called the cestui que trust, with respect to property held by the former for the benefit of thelatter. The person in whom confidence is reposed as regards property for the benefit ofanother is known as the trustee.

Differentiate an Express Trust from an Implied Trust.

An express trust is one created by the direct and positive acts of the parties, by somewriting or deed, or will, or by the words evidencing an intention to create a trust while animplied trust is one which, without being express, is deducible from the nature of thetransaction as a matter of intent, or which are super induced on the transaction by operationof law as matters of equity, independent of the particular intention of the parties. (O Laoversus Co Cho Chit, 220 SCRA 656).

Define Adoption.

It is defined as a juridical act, a proceeding in rem, which creates between two persons arelationship similar to that which results from legitimate paternity and filiation.

Only an adoption made through the court is valid in this jurisdiction. It is not a natural law atall, but is wholly and entirely artificial. To establish the relation, the statutory requirementmust be strictly carried out, otherwise, the adoption is an absolute nullity. The fact ofadoption is never presumed, but must be affirmatively proved by the person claiming its

existence, such as by the decree of adoption issued by the court. (Lazatin versus Campos,92 SCRA 250).

Define Inter-Country Adoption.

According to the Inter-Country Adoption Act of 1995 (R.A. 8043), it is a socio-legal process ofadopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroadwhere the petition is filed, the supervised trial custody is undertaken, and the decree ofadoption is issued outside the Philippines.


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What is an inter-country adoption board?

According to the Inter-Country Adoption Act of 1995 (R.A. 8043), it is a body created to actas the central authority in matters relating to inter-country adoption. It acts as the policymaking body for purposes of carrying out the provisions of the Inter-Country Adoption Act, in

consultation and coordination with the Department of Social Welfare and Development, thedifferent child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities.

Define Writ of Habeas Corpus.

Habeas Corpus is a Latin Phrase which literally means you have body. Basically, it is a writdirected to the person detaining another, commanding him to produce the body of theprisoner at a designated time and place, with the day and cause of his capture anddetention, to do, submit to, and receive whatsoever the court or judge awarding the writshall consider in that behalf.

It is a remedy to all cases of illegal confinement or detention:

1. by which any person is deprived of his liberty; or2. by which the rightful custody of any person is withheld from the person entitled

thereto.

Define the Writ of Amparo.

It is a remedy available to any person whose right to life, liberty, and security has beenviolated or is threatened with violation by an unlawful act or omission of a public official oremployee, or of a private individual or entity. The writ covers extralegal killings andenforced disappearances or threats thereof.

Pursuant to Section 9, after the service of the writ, what must the respondent do?

Within seventy-two (72) hours after service of the writ, the respondent shall file a verifiedwritten return together with supporting affidavits which shall, among other things, containthe following: (4).

1. The lawful defenses to show that the respondent did not violate or threaten withviolation the right to life, liberty and security of the aggrieved party, through anyact or omission;

2. The steps or actions taken by the respondent to determine the fate or whereaboutsof the aggrieved party and the person or persons responsible for the threat, act oromission;

3. All relevant information in the possession of the respondent pertaining to thethreat, act or omission against aggrieved party; and

4. If the respondent is a public official or employee, the return shall further state the

actions that have been or will be taken:

To verify the identity of the aggrieved party; (7).

To recover and preserve evidence related to the death or disappearance of theperson identified in the petition which may aid in the prosecution of the person orpersons responsible;


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To identify witnesses and obtain statements from them concerning the death ordisappearance;

To determine the cause, manner, location and time of death or disappearance aswell as any pattern or practice that may have brought about the death ordisappearance;

To identify and apprehend the person or persons involved in the death ordisappearance; and

To bring the suspected offenders before a competent court

The return shall also state other matters relevant to the investigation, its resolutionand the prosecution of the case.

What are the prohibited pleadings and motions in a petition for writ of amparo?(12).

1. motion to dismiss;2. motion for extension of time to file, return, opposition, affidavit, position paper

and other pleadings;3. dilatory motion for postponement;4. motion for a bill of particulars;5. counterclaim or cross-claim;6. third party complaint;7. reply;8. motion to declare respondent in default;9. intervention;10. memorandum;11. motion for reconsideration of interlocutory orders or interim relief orders; and12. Petition for certiorari, mandamus, or prohibition against any interlocutory

order. (section 11)

What are the Interim reliefs available to the petitioner? (4).

1. Temporary Protection Order2. Inspection Order3. Production Order4. Witness Protection Order

Define Writ of Habeas Data.

It is a remedy available to any person whose right to privacy in life, liberty or security isviolated or threatened by an unlawful act or omission of a public official or employee, or of aprivate individual or entity engaged in the gathering, collecting or storing of data orinformation regarding the person, family, home and correspondence of the aggrieved party.

It is a remedy for any person whose right to privacy in life, liberty and security is violated orthreatened with violation by an unlawful act or omission of a public official or employee, orof a private individual or entity engaged in:

1. Gathering2. Collecting3. Storing


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Of data or information regarding the person family, home and correspondence of theaggrieved party.

Compare Writ of Habeas Data and Writ of Amparo.

Habeas Data essentially allows families of victims of enforced disappearance to petition the

courts to compel government and security officials to allow access to documents about themissing.

The writ of amparo, on the other hand, denies state officials the defense of denial withwhich they normally espouse to evade petitions for habeas corpus that families of missingpersons file, and compels them instead to exert efforts to find these missing persons or facesanctions.

Distinguish Rules 103, 108, and RA 9048

103 is Change of Name, 108 is cancellation correction of entries in the civil registry; and RA0948 is the Clerical Error Act.

The subject matter of 103 is the substantial correction of the full name (change of full name)

The subject matter of rule 108 are substantial corrections in the civil entries (change orcorrections in civil entries)

RA 9048 Change of first name and nickname and civil entries (only typographical or clericalerrors) --- amended by RA 10172 (birth month and day added)

Under rule 108 what entries are subject to cancellation or corrections? (15).

1. births2. marriages3. deaths4. legal separations5. judgments of annulments of marriage6. judgments declaring marriages void from the beginning7. legitimations8. adoptions9. acknowledgments of natural children10. naturalization11. election, loss or recovery of citizenship12. civil interdiction13. judicial determination of filiation14. voluntary emancipation of a minor; and15. changes of name

Rule 72.

Distinguish between a special proceeding and a civil action.

Special Proceeding versus Civil Action. (6).

1. A remedy to that seeks to establish a status, a right, or a particular fact while a civilaction is an action wherein a party sues another for the protection or enforcement of a rightor the prevention or redress of a wrong.


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2. Initiated by petition versus Initiated by a complaint.

3. Definite Petitioner No adverse party Not adversarial versus Definite Parties Adversarial.

4. Handled by a Court of limited jurisdiction versus Handled by a Court of generaljurisdiction.

5. 30 day appeal period versus 15 day appeal period.

6. SoL does not apply versus SoL applies.

Rule 73.What are the possible consequences if in the court of intestate proceedings, a willis later discovered? (3).

1. it is the sound discretion of the court to continue with the intestate proceeding or toproceed under a separate number or title (Reynoso versus Santiago 85 Phil. 268, 270).

2. consolidate and hear both cases (Roberts versus Leonidas, 129 SCRA 33).

3. replace the intestate proceedings but the proceedings will continue as an intestacy(Uriate versus CFI Negros, 33 SCRA 252, 259).

Exceptions to Issuance of Writ of Execution (3).

1. To satisfy the distributive shares of the devisees, legatees, and heirs on possession of thedecedents assets as laid down in Rule 88, Section 6;

2. To enforce payment of the expenses of partition under Rule 90, Section 3;

3. To satisfy the cost when the person is cited for examination in probate proceedings underRule 142, Section 13.

Rule 74.

Distinguish Extrajudicial Settlement under Section 1 from Summary Settlement ofEstates of Small Value under Section 2 of Rule 74. (5).

1. Extrajudicial Settlement requires court intervention Summary Settlement requires courtintervention by summary proceeding;

2. In Extrajudicial Settlement, the value of the estate is immaterial while in SummarySettlement the gross value of the estate is P10,000.00 or below. The amount is

jurisdictional.

3. In Extrajudicial Settlement, it is allowed only in intestate succession while SummarySettlement it is allowed in both testate and intestate estates.

4. In Extrajudicial Settlement, it is only proper when there are no outstanding debts of theestate at the time of the settlement, while in Summary Settlement it is allowed even if thereare debts.


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5. In Extrajudicial Settlement, it is instituted by agreement of all heirs, while in SummarySettlement it is instituted by any interested party, even by a creditor of the estate, withoutthe consent of all the heirs.

What are the requisites of a valid extrajudicial settlement? (5).

1. The decedent died intestate;2. The estate has no outstanding debts at the time of the settlement;3. The heirs are all of age, or the minors are represented by their judicial guardians or legalrepresentatives;4. The settlement is made in a public instrument, stipulation or affidavit duly filed with theregister of deed; and5. The fact of such judicial settlement must be published in a newspaper of generalcirculation in the province once a week for three (3) consecutive weeks.

Rule 75.

Give the concept and extent of the meaning of due execution.

A decree of probate is conclusive with respect to the due execution of the will and it cannotbe impugned on any grounds except that of fraud, in any separate or independent action orproceeding. (Manahan versus Manahan, 58 Phil. 448,45).

Due execution covers the following: (ASDUG) (5).

1. The will was executed in accordance with the strict formalities of the law;2. The testator was of sound and disposing mind at the time of the execution of the will;3. Consent is not vitiated by any duress, fear, or threats;4. The will was not procured by any undue influence from the beneficiary or by some otherperson for his benefit;5. The signature of the testator is genuine.

The general rule provides that a probate court cannot decide a question of title ofownership. Are there any exceptions where it can pass upon the question of titleto property?

The probate court may pass upon the question of title to property on thefollowing: (2).

1. The interested parties who are all heirs of the deceased consent thereto and the interestsof third parties are not prejudiced;2. In a provisional manner, to determine whether said property should be included in orexcluded from the inventory, without prejudice to the final determination of title in aseparate action.

Rule 76.

Section 2. Contents of petition. (5).

1. The jurisdictional facts;2. The names, ages, and residences of the heirs, legatees, and devisees of the testator ordecedent;3. The probable value and character of the property of the estate;4. The name of the person for whom letters are prayed;


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5. If the will has not been delivered to the court, the name of the person having custody ofit.

How may a lost will be proved? (3).

1. Execution and validity of the will must be established;

2. The will must have been in existence at the time of the death of the testator; or shown tohave been fraudulently or accidentally destroyed in the lifetime of the testator without hisknowledge;3. The provisions are clearly and distinctly proved by at least two credible witnesses.

Rule 77.

What must the proponent prove during a re-probate proceeding? (5).

1. the testator was domiciled in the foreign country;2. the will has been admitted to probate is such country;3. that the foreign court was, under the laws of said foreign country, a probate court with

jurisdiction over the proceedings;4. the law on probate procedure in said foreign country proof of compliance therewith; and5. the legal requirements in said foreign country are complied with for the valid execution ofthe will (Fluemer versus Hix, 54 Phil. 610)

What are the effects of allowance of a will under this rule? (3).

The effects are as follows:

1. The will shall be treated as if originally proved and allowed in Philippines courts;2. Letters testamentary or administration with a will annexed shall extend to all estates ofthe Philippines; and3. After payment of just debts and expenses of administration, the residue of the estateshall be disposed of as provided by law in cases of estates in the Philippines belonging topersons who are inhabitants of another state or country.

Rule 78.

Who are incompetent to serve as executors or administrators? (MNO). (3).

1. is a minor;2. is not a resident of the Philippines; and3. Is in the opinion of the court unfit to execute the duties of the trust by reason ofdrunkenness, improvidence, or want of understanding or integrity, or by reason of convictionof an offense involving moral turpitude.

Order of preference Letters of Administration. (4).

1. Surviving husband or wife, or the next of kin, or both, by the discretion of the court.2. Person requested to be appointed by the surviving husband or wife, or next of kin.3. One or more of the principal creditors.4. Such other person that the court may select.

Rule 79.

Enumerate the contents of petition for Letters of Administration. (4).


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1. Jurisdiction facts;2. The names, ages, and residences of the heirs, and the names and residences of thecreditors, of the decedent;3. The probable value and character of the property of the estate;4. The name of the person for whom letters of administration are prayed.

Rule 80.

Administrator versus Special Administrator. (3).

1. appointed due to intestacy versus Due to delay.2. obliged to pay debts of the estate versus Not obliged to pay.3. appointment subject to appeal versus Appointment not subject to appeal because it is aninterlocutory order.

Rule 81.

Is the Executor or Administrator required to post bond?

Yes. Before an executor or administrator enters upon the execution of his trust, and letterstestamentary or of administration issue, he shall give a bond, in such sum as the courtdirects, conditioned as follows: (4).

1. to make and return to court, within three (3) months, a true and complete inventory of allgoods, chattels, rights, credits, and estate of the deceased which shall come to hispossession or knowledge or to the possession of any other person for him;

2. to administer according to these rules, and, if an executor, according to the will of thetestator, all goods, chattels, rights, credits, and estate which shall at any time come to hispossession or to the possession of any other person for him, and from the proceeds to payand discharge all debts, legacies, and charges on the same, or such dividends thereon asshall be decreed by the court;

3. to render a true and just account of his administration to the court within one (1) year,and at any other time when required by the court;

4. to perform all orders of the court by him to be performed.

Rule 82.

Enumerate the grounds under rule 82 section 2 where the court may remove oraccept resignation. (6).

1. If an executor or administrator neglects to render his account and settle the estateaccording to law;2. Neglects to perform an order or judgment of the court;

3. Fails to perform a duty provided by these rules;4. Absconds;5. Becomes Insane;6. Incapable or unsuitable to discharge the trust.

Examples of a valid removal of an Administrator by the probate court.

1. unapproved (i.e., judicial approval) disbursement of funds (Cotia versus Jimenez, 104Phil. 966);


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2. false representation by the administrator in securing his appointment. (Cobarrubiasversus Dizon, 76 Phil. 209);3. adverse interest or by conduct shows unfitness to discharge the trust (Garcia versusVasquez, 32 SCRA 490); and4. physical inability and consequent unsuitability to manage the estate.. ( De Borja versus

Tan, 93 Phil. 167).

Rule 84.

What are the general powers and duties of Executors and Administrators? (5).

1. shall at all times have access to, and may examine and take copies of, books and papersrelating to the partnership business;2. may examine and make invoices of the property belonging to such partnership;3. shall maintain in tenable repair the houses and other structures and fences belonging tothe estate, and deliver the same in such repair to the heirs or devisees when directed so todo by the court;4. shall have the right to the possession and management of the real as well as the personalestate of the deceased so long as it is necessary for the payment of the debts and theexpenses of administration.5. to post a bond.

When is leave of court necessary?

In the following circumstances leave of court is necessary as the acts are not consideredwithin the power of administration: (2).

1. An administration of an intestate cannot exercise the right of legal redemption over aportion of the property owned in common sold by one of the other co-owners since this isnot within the powers of administration. (Caro versus CA, 113 SCRA 10);

2. Where estate of a deceased person is already the subject of a testate or intestateproceeding, the administrator cannot enter into any transaction involving it without anyprior approval of the Court. (Estate of Olave versus Reyes, 123 SCRA 767).

Rule 86.Enumerate the types of claims that must be filed with the probate court under thenotice to the creditors. (3).

1. All money claims against the decedent arising from contract, express or implied, whetherthe same be due, not due, or contingent;2. All claims for funeral expenses and expenses for the last sickness of the decedent;3. Judgment for money against the decedent. The judgment must be presented as a claimagainst the estate, where the judgment debtor dies before levy on execution of hisproperties.

What are the three distinct, alternative remedies available to a mortgage creditorupon the death of the mortgagor? (3).

1. To waive the security mortgage and claim the entire debt from the estate as an ordinaryclaim.


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By filing money claim against the estate he is deemed to have abandoned the mortgageand thereafter he cannot file a foreclosure suit if he fails to recover his money claimagainst the estate;

2. To foreclose mortgage judicially and prove any deficiency as an ordinary claim.

The foreclosure suit should be against the executor or administrator as party defendant.In the event that a creditor fails to fully recover his claim, he may obtain deficiencyjudgement and file it as a claim against the estate in the manner provided by this Rule;

3. To rely solely upon the mortgage and foreclose the same at any time before it is barredby prescription without right to claim any deficiency. This mode includes extrajudicialforeclosure of sale and its exercise precludes one from recovery any balance ofindebtedness against the estate and frees the estate from further liability.

Rule 87.

Under this rule, what actions may be commenced against the Executor orAdministrator? (3).

1. Recovery of real or personal property or any interest therein from the estate;2. Enforcement of a lien thereon;3. Action to recover damages for any injury to person or property, real, or personal.

The aforementioned instances are deemed actions that survive the death of the decedent.

As a rule, heirs have no standing in court to sue for the recovery of the estaterepresented by an executor or administrator during pendency of administrativeproceedings. Cite any exceptions, if any. (3).

1. If the executor or administrator is unwilling to bring suit;2. When the executor or administrator is made a party defendant where he is alleged tohave participated in the act complained of;3. When there is no appointed administrator.

Rule 88.

Exceptions to the issuance of writ of execution by the probate court to pay claims.(3).

1. to satisfy the distributive shares of devisees, legatees, and heirs in possession of thedecedents assets;2. to enforce payment of the expenses of partition; and3. to satisfy the costs when a person is cited for examination in probate proceedings.

Rule 90.

When must the order for distribution of residue be made? (5).

When all.

1. debts2. funeral charges3. and expenses of administration4. allowance to the widow


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5. inheritance taxes (transfer taxes), if any,

Chargeable to the estate in accordance with law have been paid.

Exception: the distributees or any of them give a bond the amount fixed by the court.

Rule 93.With respect to a minor, (as governed by SC A.M. No. 03-02-05) the following arethe persons who may petition: (4).

1. any relative; or2. other person on behalf of the minor; or3. the minor himself if 14 years of age or over; or4. the Secretary of Social Welfare and by the Secretary of Health in case of an insane minorwho needs to be hospitalized. (Section 2 of SC AM 03-02-05).

With respect to incompetent other than a minor, (as governed by the Rules ofCourt) the following persons may petition: (5).

1. any relative; or2. friend; or3. other person on behalf of the resident incompetent who has no parents or lawfulguardian; or4. the Director of Health in favour of an insane person who should be hospitalized or infavour of an isolated leper;5. any one interested in the estate of a non-resident incompetent.

The contents of petition for guardianship over a minor are as follows: (8).

1. the jurisdictional facts;2. the name, age, and residence of the prospective ward;3. the ground rendering the appointment necessary or convenient;4. the death of the parents of the minor or the termination, deprivation or suspension oftheir parental authority;5. the remarriage of the minors surviving parent;6. the names, ages, and residences of relatives within the fourth (4th) civil degree of minorand of persons having him in their custody;7. the probable value, character, and location of the property of the minor, and8. the name, age, and residence of the person for whom letters of guardianship are prayed.

The contents of petition for guardianship over an incompetent who is not a minorare as follows: (4).

1. the jurisdictional facts;2. the incompetency of the person rendering the appointment of a guardian necessary or

convenient;3. the probable value and character of his estate;4. the names of the person for whom letters of guardianship are prayed.

Enumerate the factors considered in appointing a guardian. (7).

1. financial condition;2. physical condition;3. sound judgment;


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4. prudence and trustworthiness;5. moral character and conduct;6. present and past history of prospective appointee;7. probability of his being able to exercise the powers and duties of a guardian for the fullperiod during the guardianship.

(Francisco versus CA, 127 SCRA 371) .

Rule 95.

When may a guardian file a petition with leave of court to sell or encumber thestate? (3).

1. When the income of an estate under guardianship is insufficient to maintain the ward andhis family;2. to maintain and educate the ward when a minor; or3. when it appears that it is for the benefit of the ward that his real estate or some partthereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof put outan interest, or invested in some productive security, or in the improvement or security ofother real estate of the ward.Rule 96.

The general powers and duties of a guardian are as follows: (6).

1. Have the care and custody of the person of the ward, and the management of his estate,or the management of the estate only, as the case may be (Section 1);2. Pay the debts of the ward (Section 2);3. Settle accounts, collect debts and appear in actions for the ward (Section 4);4. Manage the estate of the ward frugally, and apply the proceeds to maintenance of theward (Section 4);5. Render verified inventory within 3 months after his appointment and annually thereafterupon application of interested persons (Section 7);6. Must present his account to the court for settlement and allowance (Section 8).

Rule 97.

The grounds for termination of guardianship over a minor are as follows: (3).

1. The ward has come of age; or2. The death of the ward; or3. The death of the guardian.

The grounds for the termination of guardianship of an incompetent other than aminor are as follows: (3).

1. Competency of the ward has been judicially determined; or2. Guardianship is no longer necessary; or3. Death of the ward; or4. Death of the guardian.

The mother has been declared unsuitable to have custody of her children in oneor more of the following instances: (6).

1. neglect,


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2. abandonment,3. unemployment,4. immorality,5. habitual drunkenness,6. drug addiction,5. maltreatment of the child,

6. insanity or affliction with a communicable disease.

Administrative Circular No. 03-02-05, Rule on Guardianship of Minors

Effectivity date: May 1, 2003

Enumerate the grounds for the appointment of a guardian as provided undersection 4. (4).

The grounds are:

1. death, continued absence, or incapacity of his parents;2. suspension, deprivation or termination of parental authority;3. marriage of his surviving parent , if the latter is found unsuitable to exercise parentalauthority; or4. when the best interests of the minor so require.

Under Section 5, What should the court consider in appointing a guardian?

The following should be considered: (7).

1. moral character;2. physical, mental, and psychological condition;3. financial status;4. relationship of trust with the minor;5. availability to exercise the powers and duties of a guardian for the full period of theguardianship;6. lack of conflict of interest with the minor; and7. ability to manage the property of the minor.

What is the order of preference in appointing guardian, in default of parents or acourt-appointed guardian pursuant to section 6?

The order of preference is as follows: (4).

1. the surviving grandparent and in case several grandparents survive, the court shall selectany of them taking into account all relevant considerations;2. the oldest brother or sister or the minor over twenty-one years of age, unless unfit ordisqualified;3. the actual custodian of the minor over twenty-one years of age, unless unfit or

disqualified; and4. any other person, who in the sound discretion of the court, would serve the best interestsof the minor.

What are the required contents and form in a petition of guardianship undersection 7? (8).

1. The jurisdictional facts;


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2. The name, age, and residence of the prospective ward;3. The ground rendering the appointment necessary or convenient;4. The death of the parents of the minor or the termination, deprivation or suspension oftheir parental authority;5. The remarriage of the minors surviving parent;6. The names, ages, and residences of relatives within the 4th civil degree of the minor, and

of persons having him in their care and custody;7. The probable value, character, and location of the property of the minor; and8. The name , age, and residence of the person for whom letters of guardianship areprayed.

The petition shall be verified and accompanied by a certification against forum shopping.However, no defect in the petition or verification shall render void the issuance of letters ofguardianship.

Enumerate the conditions set in the filing of a bond by the guardian under section14. (4).

1. To make and return to the court, within three months after the issuance of his letters ofguardianship, a true and complete inventory of all the property, real and personal, of hisward which shall come to his possession or knowledge or to the possession or knowledge ofany other person in his behalf;

2. To faithfully execute the duties of his trust, to mange and dispose of the propertyaccording to this rule for the best interest of the ward, and to provide for his proper care,custody, and education;

3. To render a true and just account of all the property of the ward in his hands, and of allproceeds or interest derived therefrom, and of the management and disposition of thesame, at the time designated by this rule and such other times as the court directs; and atthe expiration of his trust, to settle his accounts with the court and deliver and pay over allthe property, effects, and monies remaining in his hands, or due from him on suchsettlement, to the person lawfully entitled thereto; and

4. To perform all orders of the court and such other duties as may be required by law.

What are the duties of a guardian under section 17?

A guardian shall have the care and custody of the person of his ward and the managementof his property, or only the management of his property. The guardian of the property of anon-resident minor shall have the management of all his property within the Philippines.

A guardian shall perform the following duties: (7).

1. To pay the just debts of the ward out of the personal property and the income of the realproperty of the ward, if the same is sufficient; otherwise, out of the real property of the ward

upon obtaining an order for its sale or encumbrance;

2. To settle all accounts of his ward, and demand, sue for, receive all debts due him, ormay, with the approval of the court, compound for the same and give discharges to thedebtor on receiving a fair and just dividend of the property and effects; and to appear forand represent the ward in all actions and special proceedings, unless another person isappointed for that purpose;


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3. To manage the property of the ward fugally and without waste, and apply the income andprofits thereon, insofar as may be necessary, to the comfortable and suitable maintenanceof the ward; and if such income and profits be insufficient for that purpose, to sell orencumber the real or personal property, upon being authorized by the court to do so;

4. To consent to a partition of real or personal property owned by the ward jointly or in

common with others upon authority granted by the court after hearing, notice to relatives ofthe ward, and a careful investigation as to the necessity and propriety of the proposedaction;

5. To submit to the court a verified inventory of the property of his ward within threemonths after his appointment, and annually thereafter, the rendition of which may berequired upon the application of an interested person;

6. To report to the court any property of the ward not included in the inventory which isdiscovered, or succeeded to, or acquired by the ward within three months after suchdiscovery, succession, or acquisition; and

7. To render to the court for its approval an accounting of the property one year from hisappointment, and every year thereafter or as often as may be required.

Enumerate the grounds for removal or resignation of guardian under section 24.(5).

1. When a guardian becomes insane or otherwise incapable of discharging his trust;2. found to be unsuitable;3. has wasted or mismanaged the property of the ward;4. has failed to render an account or make a return for thirty days after it is due;5. the court may allow the guardian to resign for justifiable causes.

Give the grounds for termination of guardianship under section 25. (2).

1. The ward has come of age;2. The ward died.

Rule 98

When is a trustee necessary?

A trustee is necessary: (2).

1. to carry into effect a will where the testator omitted appointing a trustee in thePhilippines;

2. to carry into effect other written instruments where the trustee declines, resigns, dies oris removed before the accomplishment of trust.

Can a trustee acquire property by prescription?

No. The general rule is that an action to compel a trustee to convey property registered inhis name in trust for the benefit of the cestui que trust does not prescribe. The trusteespossession is not adverse and therefore cannot ripen into a title by prescription.

However, prescription may arise where there is adverse possession of the property. Toconstitute adverse possession, the following requisites must concur: (3).


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(1) that the trustee has performed unequivocal acts of repudiation amounting to the ousterof the cestui que trust;(2) that such positive acts of repudiation have been known to the cestui que trust; and(3) that the evidence thereon should be clear and conclusive. (Ceniza versus CA, 181 SCRA552).

Adoption

Compare domestic adoption from inter-country adoption. (5).

1. In domestic adoption, jurisdiction is under the Family Court where the adopter resideswhile in the inter-country adoption, it is the Family Court having jurisdiction over the placewhere the child resides or may be found. It may be filed directly with the Inter-CountryAdoption Board;

2. In domestic adoption, application is made only by filing a petition with the Family Court inthe Phiippines while in the latter, application may be through the agency located in theforeign country;

3. In domestic adoption, as a rule, trial custody shall be made in the Philippines for six (6)months while in the latter, trial custody shall be mandatory in the country of the adopter;

4. In domestic adoption, publication of the petition is necessary while in the latter, there isno requirement for publication;

5. In domestic adoption, petition is allowed to be accompanied with prayers for change ofname, rectification of simulated birth or declaration that the child is a foundling, abandoneddependent or neglected child while in the latter, there is none.

Distinctions between R.A. 8552 and R.A. 8043.

Adoption laws

Republic Act No. 8552. or the Domestic Adoption Act of 1998

Republic Act No. 8043. or the Inter-Country Adoption Act 1995

Short title Domestic Adoption Act of 1998. Inter-Country Adoption Act of 1995

What kind?

Domestic Adoption Act. Judicial Adoption.

Inter-Country Adoption Act. Extrajudicial Adoption.

Promulgation

Domestic Adoption Act. February 25, 1998.

Inter-Country Adoption Act. June 7, 1995.

What it governs.


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Domestic Adoption Act.

R.A. 8552 amended Articles 183 up to 193 of the Family Code of the Philippines and is thegoverning for Filipino citizens adopting other Filipinos (whether relatives or strangers) withsome exceptions. Rescission of adoption is no longer allowed under R.A. 8552.

Inter-Country Adoption Act.

R.A. 8043 on the other hand, governs the adoption of Filipinos by foreigners, and isimplemented by the Inter-Country Adoption Board.

Definition of Child.


Child is a person below eighteen (18) years of age.


Child means a person below fifteen (15) years of age unless sooner emancipated by law.

Who may adopt.

The following may adopt:


1. Any Filipino Citizen;2. Any alien possessing the same qualifications as above stated for Filipino nationals;3. The guardian with respect to the ward.


1. An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child.

Qualifications.


Filipino Citizen.

1. legal age, in possession of full civil capacity and legal rights;2. of good moral character, has not been convicted of any crime involving moral

turpitude;

3. emotionally and psychologically capable of caring for children;4. at least sixteen (16) years older than the adoptee (waived when the adopter is the

biological parent of the adoptee, or is the spouse of the adoptees parent).

Alien.

1. Same as the qualifications of the Filipino citizen;2. his her country has diplomatic relations with the Republic of the Philippines;


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3. that he she has been living in the Philippines for at least three (3) continuous yearsprior to the filing of the application for adoption and maintains such residence untilthe adoption decree is entered;

4. He she has been certified by his her diplomatic or consular office or any appropriategovernment agency that he she has the legal capacity to adopt in his her country;and

5. His her government allows the adoptee to enter his her country as his her adoptedson daughter.

Residency and certification of the aliens qualification to adopt in his her country may bewaived for the following:

1. a former Filipino citizen who seeks to adopt a relative within the fourth (4th degree ofconsanguinity or affinity; or

2. one who seeks to adopt the legitimate son daughter of his her Filipino spouse; or3. if one spouse seeks to adopt his her own illegitimate son daughter: provided,however, that the other spouse has signified his her consent thereto; or4. if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son daughterof the other, joint parental authority shall be exercised by the spouses.

Guardian

Only after the termination of the guardianship and clearance of his her financialaccountabilities (Section 7).


Qualifications under (R.A. No. 8043).

1. is at least twenty-seven (27) years of age and at least sixteen (16) years older thanthe child to be adopted, at the time of application unless the adopter is the parent bynature of the child to be adopted or the spouse of such parent;

2. if married, his her spouse must jointly file for the adoption;3. has the capacity to act and assume all rights and responsibilities of parental

authority under his national laws, and has undergone the appropriate counsellingfrom an accredited counsellor in his her country;

4. has not been convicted of crime involving moral turpitude;5. is eligible to adopt under his her national law;6. is in a position to provide the proper care and support and to give the necessary

moral values and example to all his children, including the child to be adopted;7. agrees to uphold the basic rights of the child as embodied under Philippine laws, the

U.N. Convention of the Rights of the Child, and to abide by the rules and regulationsissued to implement the provisions of this Act;

8. comes from a country with whom the Philippines has diplomatic relations and whose

government maintains a similarly authorized and accredited agency and thatadoption is allowed under his her national laws; and

9. possesses all the qualifications and none of the disqualifications provided herein andin other applicable Philippine laws. (Section 9).

Who may be adopted.

The following may be adopted:


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1. any person below eighteen (18) years of age who has been administratively or judiciallydeclared available for adoption;2. the legitimate son daughter of one spouse by the other spouse;3. an illegitimate son daughter by a qualified adopter to improve his her status to that of

legitimacy;4. a person or legal age if, prior to the adoption, said person has been consistentlyconsidered and treated by the adopter(s) as his her own child since minority;5. a child whose adoption has previously rescinded; or6. a child whose biological or adoptive parent(s) has died: Provided that no proceedings shallbe initiated within six (6) months from the time of death of said parent(s). (Section 8).


1. Only a legally free child may be the subject of inter-country adoption. (Section 8).

Where to file application.


1. Family Court of the place where the adopter resides.


1. RTC having jurisdiction over the child, or with the Inter-Country Adoption Board, throughan intermediate agency, whether governmental or an authorized and accredited agency, inthe country of the prospective adoptive parents. (Section 10).

What petition for adoption may include.


1. May include prayer for change of name, rectification of simulated birth or declaration thatthe child is a foundling, abandoned, dependent, or neglected child.


1. Only petition for adoption.

Is there a need to include income tax returns, police clearance, characterreference, family picture, birth certificate of adopter?


1. Not required


1. required to be annexed to the petition.

What law will apply when a foreigner who is married to a Filipino citizen seeks toadopt jointly with his her spouse a relative within the fourth degree ofconsanguinity or affinity of the Filipino spouse


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1. R.A. 8552 will apply.


1. R.A. 8043 does not apply.

Supervised Trial Custody.


1. Supervised trial custody period in the Philippines for at least six (6) months (Court mayreduce period or exempt parties from trial custody). (Section 12).


1. Suprevised trial custody period in the Philippines for at least six (6) months. (Section 14).

Penalty for any government official, employee or functionary who shall be foundguilty of violating any of the provisions of this adoption laws.


1. Shall automatically suffer suspension until the resolution of the case.


1. Same (Section 17).

The Supreme Court has issued guidelines in petitions for adoptions under R.A.8552 and R.A. 8043. Basically, a petition for domestic adoption under R.A. 8552will go through these steps: (7).

1. A lawyer prepares the petition for the person or persons wanting to adopt. The petitionincludes documents like birth certificates, marriage certificate, proof of financial capacity(like ITR, bank deposit, etc.), clearances (barangay, police, NBI, fiscal, court), and others asproof of good moral character, good health, etc.

2. Upon payment of the filing or docket fee, the petition is raffled to a Family Court (of thecity nearest the place where the petitioner resides). If the petition is sufficient in form andsubstance, the court issues an order, usually within a month after the filing of the petition,setting the case for initial hearing and ordering the court social worker to conduct a casestudy and home visit.

3. The court order is published in a newspaper of general circulation once a week for three

weeks. The newspaper is chosen by raffle conducted by the Office of the Clerk of Court, incompliance with a Supreme Court circular.

4. Before the initial hearing, the social worker conducts a case study and home visit. Thesocial worker submits his investigation report and recommendations to the court before theinitial hearing.


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5. On the date of the initial hearing, the petitioner and the prospective adoptee must bepresent. The lawyer presents what are known as the jurisdictional facts (petition, proof ofpublication in newspaper, notice to the Office of the Solicitor General, etc).

6. If there is no opposition to the petition for adoption by any party, then the lawyer asksthe court permission for an exparte presentation of evidence, done before only the court

stenographer and the court appointed commissioner (the branch clerk of court). The courthowever can require presentation of evidence in open court.

7. If the court decision is favourable and there is no appeal by any party, then the courtissues a Certificate of Finality. The lawyer then coordinates with the Local Civil Registrar (ofthe town or city where the court is located, and the adoptees birthplace) and the NationalStatistics Office for the issuance of a new birth certificate bearing the petitioners surname.

Jurisdiction and Venue.

1. Settlement of estate of deceased persons.

a. RTC Gross value of the estate exceeds three hundred thousand pesos outside metromanila, exceeds four hundred thousand pesos in metro manila.

b. MTC Gross value of the estate does not exceed three hundred thousand pesos outsidemetro manila, does not exceed four hundred thousand pesos metro manila.

if resident place where deceased resided at the time of death.

if non-resident place where deceased had estate.

2. Escheat .

a. Ordinary Escheat proceedings: RTC.

if resident placed where deceased last resided.If non-resident place where he had estate.

b. Reversion of land to State for violation of Constitution Laws: RTC where land lies in wholeor in part.

c. Unclaimed deposits (for ten years): RTC of province where bank is located.

All banks located in one province where court is located may be made parties defendant inone action.

3. Guardianship and custody of children: Family Court.

if resident place where minor incompetent resides.

If non-resident place where minor incompetent has property.

4. Trustees.

a. RTC gross value of the estate exceeds P 300,000 P 400,000.


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b. MTC gross value of the estate exceeds P 300,000 P 400,000.

if will allowed in the Philippines , court where will was allowed.

If will allowed outside the Philippines, curt in place where property is situated.

5. Adoption : Regional Trial Court.

If domestic adoption , place where adopter resides.

If inter-country adoption, court who has jurisdiction over the adoptee.

6. Rescission and revocation of adoption : Regional Trial Court.

7. Hospitalization of insane patent: RTC in place where person alleged to beinsane is found.

Periods and Schedules.

Rule 74.

Extrajudicial Settlement (Section 1)

The fact of extrajudicial settlement shall be published in a newspaper of general circulationonce a week for three consecutive weeks in the province.

Summary settlement of estates of small value.

Whenever the gross value of the estate of a deceased person, whether he died testate orintestate, does not exceed ten thousand pesos, and that fact is made to appear to theRegional Trial Court having jurisdiction of the estate by the petition of an interested personand upon hearing, which shall be held not less than (1) month nor more than three (3)months from the date of the last publication of a notice which a newspaper of generalcirculation in the province, and after such other notice to interested persons as the courtmay direct, the court may proceed summarily, without the appointment of an executor oradministrator, to settle the estate.

When does the presumption that the decedent left no debts arise?

If no creditor files a petition for letters of administration within two (2) years after the deathof the decedent.

Rule 75.

What is the duty of a custodian of a will upon knowledge of the death of the

testator?

Rule 75, Section 2 provides that the person who has custody of a will shall, within twenty(20) days after he knows of the death of the testator, deliver the will to the court having

jurisdiction, or to the executor named in the will.

What is the duty of the executor upon knowledge of the death of the testator?

The executor must present the will to the court and must accept or refuse the trust.


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Rule 75. Section 3 expressly states that a person named as executor in a will shall, withintwenty (20) days after he knows of the death of the testator, or within twenty (20) days afterhe knows that he is named executor if he obtained such knowledge after the death of thetestator, present such will to the court having jurisdiction, unless the will has reached thecourt in any other manner, and shall within such period, signify to the court in writing his

acceptance of the trust or his refusal to accept it.

Rule 85.

When shall an executor or administration render an account?

Every executor or administrator shall render an account of his administration within one (1)year from the time of receiving letters testamentary or of administration, unless the courtotherwise directs because of extensions of time for presenting claims against, or paying thedebts of, the estate, or for disposing of the estate; and he shall render such further accountsas the court may require until the estate is wholly settled.

Rule 86.

What is the period within which the claim must be filed?

The range of the period specified in Section 2 is intended to give the court the discretion tofix the period for the filing of claims. The probate court is permitted by the rule to set theperiod as long as it is within the limitation provided. It should not be less than six (6)months nor more than twelve (12) months from the day of the first publication of noticethereof. Such period when fixed by the probate court becomes mandatory.

Rule 91.

What is the consequence if the claim on the escheated property is made after thelapse of the five (5) year period?

The right to claim the property is lost and the escheat judgment can no longer be nullified.

Can a trial court convert an escheat proceeding into an ordinary specialproceeding?

No, this is not allowed by the rules. The two actions are entirely different from each otherand the requirements in vesting jurisdiction are likewise different. In special proceedings,publication is one a week for three (3) consecutive weeks while in escheat, once a week forsix (6) weeks.

Cases.

Rule 72.

Luisa Montaner versus Shara District Court.

The trial court cannot make a declaration of heirship in an ordinary civil action.

Rule 74.

Benatiro versus Heirs of Evaristo Cuyos.


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Co versus Rosario.

Settled is the rule that the selection or removal of special administrators is not governed bythe rules regarding the selection or removal of regular administrators.

Courts may appoint or remove special administrators based on grounds other than thoseenurmerated in the Rules, at their discretion.

Tan versus Gedorio Jr.

Issue: Whether or not the court erred in denying petitioners plea to be given primacy in theadministration of their fathers heir.

No. The order of preference in the appointment of a regular administrator provision doesnot apply to the selection of a special administrator.

Heirs of Jose Sy Bang versus Rolando Sy, et al.

Issues:

1. Whether or not the trial court, acting as a Guardianship Court, had authority to enforcepayment of widows allowance.2. Whether or not the payment of widows allowance should not be implemented as theestate of Sy Bangthe source from which payment is to be takenhas not been determinedwith finality.

Yes. By virtue of Rule 83 Section 3 of the Rules of Court and Article 188 of the Civil Code.

Yes, since properties though not yet been finalized it has been identified and by strictprovision of law the widow should be given allowance under rule 83 Section 3 of the Rules ofCourt and Article 188 of the Civil Code.

Rule 86.

Union Bank versus Santibanez Ariola.

Issue:

Whether the petitioner can hold the heirs liable on the obligation of the deceased afterprobate of will.

In our jurisdiction, the rule is that there can be no valid partition among the heirs until afterthe will has been probated.

PNB versus CA.

Issue:

Whether or not petitioner bank can still file a claim for deficiency despite having chosen theremedy of foreclosure of mortgage.

No. A creditor who elects to foreclose by extrajudicial sale waives all right to recoveragainst the estate of the deceased debtor for any deficiency remaining unpaid after the saleit will be readily seen that the decision in this case will impose a burden upon the estates of


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deceased persons who have mortgaged real property for the security of debts, without anycompensatory advantage.Rule 87.

Teodora A. Rioferio, et al. versus CA.

Issue:

Whether the heirs have legal standing to prosecute the rights belonging to the deceasedsubsequent to the commencement of the administration proceedings.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery ofproperty of the estate during the pendency of administration proceedings has threeexceptions, the third being when there is no appointed administrator such as in this case.

Rule 89.

Pahamotang versus PNB and the Heirs of Arguna.

Whether or not Agustins petitions were null and void for lack of compliance with themandatory requirements of Rule 89 of the Rules of Court, particularly Sections 2, 4, and 7.

Settled is the rule in this jurisdiction that when an order authorizing the sale orencumbrance of real property was issued by the testate or intestate court without previousnotice to the heirs, devisees and legatees as required by the Rules, it is not only the contractitself which is null and void but also the order of the court authorizing the same.

Rule 90.

Ricardo Silverio, Jr. versus CA.

Issue:

Whether or not the authority granted by the administrator allowing the respondent toremain in possession of the estate property while its obligations remain unpaid is valid ornot.

Ruling:

The alleged authority given by Silverio Senior for the respondent to occupy the property isnull and void since the possession of estate property can only be given to a purported heirby virtue of an Order from the Supreme Court. Rule 90, Section 1 is explicit when it statesthat No distribution shall be allowed until the payment of the obligations above mentionedhas been made or provided for, unless the distributees, or any of them, give a bond, in sumto be fixed by the by the court, conditioned for the payment of said obligations within suchtime as the court directs. In fact, the Executor or Administrator shall have the right to the

possession and management of the real as well as the personal estate of the deceased onlywhen it is necessary for the payment of the debts and expenses of administrations. Section3, Rule 84, Rules of Courts.

With this in mind, it is without an iota of doubt that the possession by the respondent of theproperty in question has absolutely no legal basis considering that her occupancy cannotpay the debts and expenses of administration.


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