SpecProc Beda Notes

San Beda College of Law San Beda College of Law San Beda College of Law San Beda College of Law 100

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

��CHAIRPERSON: Jinky Ann Uy �� ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea ��EDPS: Martessa Nuylan, Charissimae

Ventura, Jocelyn Zabala �� SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and

Special

Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

SPECIAL PROCEEDINGS SPECIAL PROCEEDINGS - A remedy by

which a party seeks to establish a status,

a right or a particular fact. (Rule 1,

Section 3)

JURISDICTION GENERAL RULE: Regional Trial Court

EXCEPTION: MTC has jurisdiction in the

following cases:

1. Probate proceedings whether testate

or intestate where the gross value of

the estate does NOT exceed

P300,000 or P400,000 in Metro

Manila, EXCLUSIVE of interest,

damages of whatever kind,

attorney’s fees, litigation expenses

and costs.

2. DELEGATED JURISDICTION

– in Cadastral and Land

Registration Cases covering lots

where there is no controversy or

opposition or contested lots where

the value of which does not exceed P

100T.

– appeal is taken to the CA, not

to the RTC since MTC is equal to RTC

in this instance.

3. SPECIAL JURISDICTION

– petitions for writ of Habeas

Corpus in case of absence of RTC

judges.

� SC and CA have original jurisdiction

over Habeas Corpus cases, concurrent

with the RTC.

ORDINARY ACTION

SPECIAL PROCEEDING

to protect or

enforce a right or prevent or redress a

wrong

involves the

establishment of the right, status or fact

involves two or more parties

may involve only

one party

governed by

ordinary rules

governed by special rules supplemented

supplemented by

special rules

by ordinary rules

heard by courts of general jurisdiction

heard by courts of limited jurisdiction

Initiated by a

pleading and parties respond through an

answer

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

an opposition

DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON

1. Extrajudicial Settlement of

Estate (Section 1, Rule 74)

2. Partition (Rule 69)

3. Summary Settlement of Estate of

Small Value (Section 3, Rule 74)

4. Probate of Will (Rule 75 to 79)

5. Petition for letters of

Administration in cases of

Intestacy (Rule 79)

PROCEDURE IN SETTLEMENT PROCEEDINGS

Issuance of Letters Testamentary/Administration

(A special administrator may be

appointed) (Rule 77-80)

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

Payment of Claims Sale/Mortgage/Encumbrance of Properties of the Estate

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

payment if a bond is filed by the heirs)

Filing of Claims (Rule 86)






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RULE 73 VENUE AND PROCESS

VENUE

� INHABITANT OF PHILIPPINES

(whether citizen or alien) – Court

of province/city where he

resides at the time of death.

� INHABITANT OF FOREIGN

COUNTRY – RTC of any province

wherein he had his estate. Residence – means his personal, actual

or physical habitation, his actual

residence or place of abode. (Fule vs.

CA, L-40502, Nov. 29, 1976)

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

2 KINDS OF SETTLEMENT A. EXTRAJUDICIAL SETTLEMENT -

(Rule 74, Section 1)

B. JUDICIAL SETTLEMENT - Testate or

Intestate Proceedings instituted in

the country where decedent has his

residence

EXTENT OF JURISDICTION Probate courts are courts of LIMITED

jurisdiction. It may only determine and

rule upon issues relating to the

settlement of the estate, namely:

1. administration of the estate;

2. liquidation of the estate; and

3. distribution of the estate.

GENERAL RULE: Probate court cannot

determine issue of ownership.

EXCEPTIONS: 1. Provisionally, ownership may be

determined for the purpose of

including property in inventory,

without prejudice to its final

determination in a separate action;

or

2. When all the parties are heirs and

they submit the issue of ownership

to the probate court provided that

the rights of third parties are not

prejudiced. (Bernardo vs. CA, L-

18148, Feb. 28, 1963)

EXAMPLES OF OTHER QUESTIONS WHICH THE PROBATE COURT CAN DETERMINE

1. Who are the heirs of the

decedent;

2. The recognition of a natural

child;

3. The validity of disinheritance

effected by the testator;

4. Status of a woman who claims to

be the lawful wife of the

decedent;

5. The validity of a waiver of

hereditary rights;

6. The status of each heir;

7. Whether property in inventory is

conjugal or exclusive property of

deceased spouse;

8. All other matters incidental or

collateral to the settlement and

distribution of the estate.

PRINCIPLE OF EXCLUSIONARY RULE The court first taking cognizance of the

settlement of the estate of the

decedent, shall exercise jurisdiction to

the exclusion of all other courts.

The probate court acquires jurisdiction

from the moment the petition for the

settlement is filed with said court. It

cannot be divested of such jurisdiction

by the subsequent acts of the parties as

by entering into extrajudicial partition

of the estate (Sandoval vs. Santiago, 88

PHIL 784); or filing another petition for

settlement in a proper court of

concurrent venue (De Boria vs. Tan, 77

Phil 872).

EXCEPTION: Estoppel by LACHES

� Jurisdiction under Rule 73 Sec. 1

does NOT relate to jurisdiction per se

but to venue. Hence, institution in the

court where the decedent is neither an

inhabitant or have his estate may be

waived. (Uriarte vs. CFI, L-21938-39,

May 29, 1970)

� Improper venue must be seasonably

raised. (Eusebio v. Eusebio, 100 PHIL

593)






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REMEDY IF THE VENUE IS IMPROPERLY LAID ORDINARY APPEAL not certiorari or

mandamus UNLESS want of jurisdiction

appears on the record of the case.

� RTC may issue writs and processes.

(Sec.3, Rule 73)

GENERAL RULE: Probate court cannot

issue writs of execution.

Reason: its orders usually refer to the

adjudication of claims against the estate

which the executor/administrator may

satisfy without the need of executory

process.

EXCEPTIONS: EXCLUSIVE (expressio

unius est exclusio alterius) 1. To satisfy the contributive share

of the devisees, legates and

heirs when the latter had

entered prior possession over the

estate. (Sec. 6, Rule 88)

2. To enforce payment of the

expenses of partition. (Sec. 3,

Rule 90)

Where the estate settled upon

dissolution of marriage (Sec.2)

Upon the death of either the husband or

the wife, the partnership affairs must be

liquidated in the testate or intestate

proceedings of the deceased husband or

wife. If both have died, liquidation may

be made in the testate or intestate

proceedings of either.

RULE 74 SUMMARY SETTLEMENT OF ESTATE

GENERAL RULE: If a person dies, his

estate is submitted to a judicial

settlement proceeding.

EXCEPTION: The heirs may resort to:

1. Extrajudicial settlement of estate;

or

2. Summary settlement of estate – must

be conducted in accordance with

regular procedure NOT under rules

of summary procedure. (Regalado)

� In these exceptions an administrator

or executor need not be appointed.

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS (Sec.1) Requisites: A. Substantive

1. The decedent left -

a) no will

b) no debts

2. The heirs are all of age or the

minors are represented by their

judicial or legal representatives

duly authorized for the purpose

B. Procedural

1. Division of estate must be in a

PUBLIC INSTRUMENT or by

AFFIDAVIT of ADJUDICATION in

the case of a sole heir.

2. Filed with proper Registry of

Deeds

3. Publication of notice of the fact

of extrajudicial settlement once

a week for 3 CONSECUTIVE WKS.

4. Bond filed equivalent to the

value of PERSONAL property.

� The bond is required only when

personalty is involved or the real estate

is subject to a lien in favor of creditors,

heirs or other persons for the full period

of 2 years from such distribution and

such lien cannot be substituted by a

bond.

� The bond is the value of the personal

property certified by the parties under

oath and CONDITIONED upon payment of

just claims filed under Sec. 4, Rule 74.

BOND

1. equivalent to the value of

personal property

2. certified by parties under oath

by an affidavit

3. conditioned upon the payment of

just claims filed under Sec. 4.

If they cannot agree to the manner of

partition among themselves, they may

resort to Ordinary Action of Partition. If

despite the institution of such action

they subsequently arrived at an

agreement, they may enter into the

corresponding stipulation and register






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the same with the Register of Deeds.

(Regalado)

Is a Public Instrument necessary for the

validity of an extrajudicial settlement? NO. Private instrument/document or

Oral agreement of partition is valid

among the heirs who participated in the

extrajudicial settlement. The

requirement under Sec. 1, Rule 74 that

it must be in public instrument is NOT

constitutive of the validity but is merely

evidentiary in nature. (Hernandez vs

Andal)

However, Reformation may be

compelled. (Regalado)

EXTRAJUDICIAL SETTLEMENT

JUDICIAL SETLLEMENT

No court intervention requires summary

judicial adjudication

value of the estate

immaterial

gross estate must

not exceed P10T

allowed only in

intestate succession

allowed in both

testate and intestate

there must be no

outstanding debts of

the estate at the

time of settlement

available even if

there are debts; it is

the court which will

make provision for

its payment

resorted at the

instance and by

agreement of ALL

heirs

May be instituted by

ANY INTERESTED

PARTY even a

creditor of the

estate without the

consent of all heirs

amount of bond is

equal to the value of

personal property

bond to be

determined by the

court

While the Rules provide that the

decedent must not have left any debts,

it is sufficient if any debts he may have

left have been paid at the time of the

extrajudicial settlement is entered into.

(Guico vs. Bautista, 110 Phil 584)

DISPUTABLE PRESUMPTION THAT DECEDENT LEFT NO DEBTS If no creditor files a petition for letters

of administration within 2 years after

the death of the decedent.

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE (Sec.2) GROSS VALUE of the estate must NOT

EXCEED P10, 000.

� This is jurisdictional. (Del Rosario vs.

Conanan, L-37903, March 30, 1977)

IMPORTANT REQUIREMENTS

1. Application must contain

allegation of gross value of

estate.

2. Date for hearing

a) shall be set by court not less

than 1 MONTH nor more

than 3MONTHS from date of

last publication of notice;

b) published, ONCE A WEEK FOR

3 CONSECUTIVE WKS in a

newspaper of general

circulation.

3. Notice shall be served upon such

interested persons as the court

may direct.

4. Bond - amount fixed by the

court (not value of personal

prop) conditioned upon payment

of just claims under Sec.4.

LIABILITY OF DISTRIBUTEES AND ESTATE (Sec.4)

REQUISITES OF TWO-YEAR PERIOD LIEN

1. persons have taken part or have

notice of extrajudicial partition

2. compliance with the provisions

of Sec.1, Rule 74 (Sampilo vs.

CA)

BASIS TO COMPEL SETTLEMENT OF THE

ESTATE 1. undue deprivation of lawful

participation in the estate.

2. existence of debts against the estate

or undue deprivation of lawful

participation payable in money.

REMEDIES

1. WITHIN 2 YRS. - claim against

the bond or the real estate.

2. Action to Annul a deed of

extrajudicial settlement on the

ground of FRAUD – within 4






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YEARS from the discovery of

fraud.

3. Reconveyance of real property.

Where the estate has been summarily

settled, the unpaid creditor may, within

2 years, file a motion in the court

wherein such summary settlement was

had, for the payment of his credit.

EXCEPTION: If on the date of the

expiration of the two-year period, the

creditor or heir is -

a) A minor or incapacitated, or

b) In prison or

c) Outside the Philippines,

he may present his claim within one year

after such disability is removed. (Sec. 5

Rule 75)

The 2-year lien upon the real property

distributed by extrajudicial or summary

settlement shall be annotated on the

title issued to the distributees and after

2 years will be cancelled by the register

of deeds without need of court order

(LRC CIRCULAR 143)

Such lien cannot be discharged nor the

annotation be cancelled within the 2

year period even if the distributees offer

to post a bond to answer for contingent

claims from which lien is established.

(Rebong vs. Ibanez, 79 Phil 324)

RULE 75 PRODUCTION OF WILL/ ALLOWANCE OF

WILL NECESSARY

Section 1. Allowance necessary, conclusive as to execution. NATURE OF PROBATE PROCEEDINGS

1. IN REM -binding on the whole

world.

2. MANDATORY - no will shall pass

either real or personal property

unless it is proved and allowed in

the proper court. HOWEVER, it

has been held in one case that a

will may be sustained on the

basis of Article 1080 of the Civil

Code which reads as follows:

“If the testator should make a

partition of his properties by an

act inter vivos, or by will, such

partition shall stand in so far as

it does not prejudice the

legitime of the forced heir.”

(Mang-Oy vs. CA, 144 SCRA 33).

3. IMPRESCRIPTIBLE – because of

the public policy to obey the will

of the testator.

4. The DOCTRINE OF ESTOPPEL

does not apply.

Reason: presentation and

probate of will is required by

public policy and involves public

interest. (Fernandez vs.

Dimagiba)

RULE 76

ALLOWANCE OR DISALLOWANCE OF WILL

Probate or Allowance of Wills - act of proving in a court a document purporting

to be the last will and testament of a

deceased person in order that it may be

officially recognized, registered and its

provisions carried insofar as they are in

accordance with law.

Who may petition for allowance of will? (Sec.1)

1. any creditor - as preparatory

step for filing of his claim

therein (Regalado, p.26)

2. devisee or legatee named in the

will

3. person interested in the will

(e.i., heirs)

4. testator himself – during his

lifetime the possession of the

will is not necessary

Who may be a party in probate? Generally, any person having a direct

and material interest in the will or

estate.

CONTENTS OF THE PETITION (Sec.2)

1. the jurisdictional facts – death

of the testator and his residence

at the time of death or the

province where estate was left






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by the decedent who is a non-

resident;

2. the names, ages, and residences

of the heirs, legatees, devisees

of the testator or decedent;

3. the probable value and character

of the property of the estate; 4. the name of the person for

whom the letters are prayed;

5. the name of the person having

custody of the will if has not

been delivered to the court.

But no defect in the petition shall render

void the allowance of the will, or the

issuance of letters testamentary or of

administration with the will annexed.

EFFECT OF THE PROBATE OF A WILL It is conclusive as to the EXECUTION and

the VALIDITY of the will (even against

the state). Thus, a criminal case against

the forger may not lie after the will has

been probated.

ISSUE IN THE PROBATE OF A WILL GENERAL RULE: Only determination of the extrinsic

validity not the intrinsic validity or

testamentary dispositions.

EXCEPTION: Where the entire or all

testamentary dispositions are void and

where the defect is apparent on its face.

(Acain vs. IAC GR No. 72706, Oct. 27,

1987; Nepumuceno vs. CA, 139 SCRA

206)

EXTRINSIC VALIDITY - means due

execution of the will.

MEANING AND EXTENT DUE EXECUTION Due execution means that:

1. the testator is of sound and

disposing mind when he

executed the will;

2. the will was NOT executed under

duress, fraud or other

circumstances that vitiates

consent;

3. the required formalities have

been strictly complied with; and

4. the will is genuine and not a

forgery.

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

When does court acquire jurisdiction over interested persons and res? Upon PUBLICATION for 3 WKS

successively of the order setting the case

for hearing AND sending NOTICES to all

persons interested.

NOTICES MUST BE GIVEN TO: 1. designated or known heirs,

legatees and devisees; and

2. executor and co-executor if not

the petitioner.

MODES OF NOTIFYING By mail: 20 days before hearing

Personal notice: 10 days before hearing

� 3 weeks successively is not strictly 21

days.

ANTE MORTEM If petition for probate is on testator’s

own initiative during his lifetime -

1. no publication is necessary; and

2. notice shall be made only to the

compulsory heirs.

PROOF OF HEARING (Sec.5)

At the hearing, compliance of

Publication and Notice must first be

shown before introduction of testimony

in support of the will.

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

a) Notarial Wills - testimony of at

least 1 of the subscribing

witnesses is allowed.

- if all subscribing witnesses

reside outside the province –

deposition is allowed.

- if subscribing witnesses

reside is dead, insane, or none

reside in the Philippines – Court

may admit testimony of the

witnesses to prove the sanity of

the testator, and the due

execution of the will, and as

evidence of the execution of the

will, it may admit proof of the

handwriting of the testator and






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of the subscribing witnesses or of

any of them.

b) Holographic Wills - the

testimony of 1 witness who

knows the handwriting and

signature of the testator. In the

absence thereof, testimony of an

expert witness.

2. CONTESTED (Sec.11)

a) Notarial Wills - ALL subscribing

witnesses AND notary public.

� HOWEVER, if any or all the

witnesses (i) testify against the

execution of the will, (ii) do not

remember attesting thereto, or

(iii) of doubtful credibility, the

will may be allowed if the court

is satisfied from the testimony of

other witnesses and from all the

evidence presented that the will

was executed and attested in

the manner required by law.

b) Holographic Wills - 3 witnesses

who knows the handwriting of

testator. In the absence thereof,

testimony of an expert witness

may be resorted to.

� HOWEVER, in Codoy vs.

Calugay, GR NO. 123486, Aug.

12, 1999, the SC ruled that if the

holographic will is contested, 3

witnesses who know the

handwriting and signature of the

testator are now

required/mandatory to prove its

authenticity and for its

allowance.

GENERAL RULE: Holographic will if

destroyed CANNOT be probated.

EXCEPTION: If there exists a Photostat

or Xerox copy thereof. (Gan vs. Yap, 104

Phil 509)

Proof of lost or destroyed will (Sec.6)

Facts which should be proved in order

that a lost or destroyed will may be

allowed:

1. due execution and validity of the

will;

2. will was in existence when

testator died, or if it was not,

that it has been fraudulently or

accidentally destroyed in the

lifetime of the testator without

his knowledge; and

3. the provisions of the will are

clearly established by at least

two credible witnesses.

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION

OF ESTATE THEREUNDER

A will allowed or probated in a foreign

country, must be RE-PROBATED in the

Philippines. If the decedent owns

properties in different countries,

separate administration proceedings

must be had in said countries.

TWO TYPES OF ESTATE PROCEEDINGS: 1. Domicilliary administration -

the proceeding instituted in last

residence of the decedent.

2. Ancillary administration - the

administration proceedings

where he left his estate.

REQUISITES OF ANCILLARY

ADMINISTRATION (Sec.2) 1. there must be a will (inferred

from the wordings of Rule 77);

2. filing of:

a) copy of the will executed in

foreign country;

b) order or decree of foreign

court allowing such will; and

c) authentication of requisites

a and b above;

3. notice of time and place of

hearing;

4. hearing; and

5. certificate of allowance.

Can a will executed and proved in a foreign country be allowed in the Philippines under Rule 77?

YES. Provided that the following must

be proved:






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1. foreign court must have

jurisdiction over the proceeding;

2. domicile of testator/decedent in

the foreign country and not in

the Philippines;

3. that the will has been admitted

to probate in such country;

4. it was made with the formalities

prescribed by the law of the

place in which the decedent

resides, or according to the

formalities observed in his

country, or in conformity with

the formalities prescribed by our

Civil Code; and

5. due execution of the will in

accordance with the foreign

laws. (Regalado)

EFFECTS

1. the will shall have the same

effect as if originally proved and

allowed in court of the

Philippines.

2. letters testamentary or

administration with a will

annexed shall extend to all

estates of the Philippines.

3. Residue of estate after payment

of debts, etc. shall be disposed

of as provided by law in cases of

estates in Philippines belonging

to persons who are inhabitants

of another state or country.

RULE 78 LETTERS TESTAMENTARY AND OF

ADMINISTRATION WHEN AND TO WHOM ISSUED

PERSONS WHO CAN ADMINISTER THE ESTATE

1. Executor;

2. Administrator, regular or special

(Rule 80); and

3. Administrator with a will

annexed (Rule 79, Section 1).

Executor - The one named by the

testator in his will for the administration

of his property after his death.

Administrator - One appointed by the

Court in accordance with the Rules or

governing statutes to administer and

settle the intestate estate or such

testate estate, where the testator did

not name any executor or that the

executor so named refuses to accept the

trust, or fails to file a bond, or is

otherwise incompetent.

Administrator with a will annexed - one

appointed by the court in cases when,

although there is a will, the will does not

appoint any executor, or if appointed,

said person is either incapacitated or

unwilling to serve as such.

WHO MAY SERVE AS EXECUTOR/ ADMINISTRATOR? Any COMPETENT person may serve as

executor or administrator.

WHO ARE INCOMPETENT TO SERVE AS EXECUTOR/ADMINISTRATOR?

1. a minor

2. a non-resident

3. one who in the opinion of the

court is unfit to exercise the

duties of the trust by reason of:

a) drunkenness

b) improvidence

c) want of understanding and

integrity

d) conviction for an offense

involving moral turpitude

� Executor of executor shall not, as

such, administer the estate of the first

testator. (Sec. 2)

Letters testamentary - Authority issued

to an executor named in the will to

administer the estate.

Letters of administration – Authority

issued by the court to a COMPETENT

person to administer the estate of the

deceased who died intestate.






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TO WHOM LETTERS OF ADMINISTRATION GRANTED Order Of Preference

1. The surviving husband or wife or

the next of kin, or both in the

discretion of the court, or to

such person as such surviving

spouse or next of kin, request to

have appointed, if competent

and willing to serve. (SURVIVING

SPOUSE OR NOMINEE)

2. If the surviving spouse or the

next of kin or the person

selected by them be

incompetent or unwilling to

serve, or if the surviving spouse

or next of kin neglects for 30

days after the death of the

decedent to apply for

administration, ANY one or more

of the PRINCIPAL CREDITORS, if

competent and willing to serve.

3. If there is no such creditor

competent and willing to serve,

it may be granted to such other

person as the court may select.

(STRANGER)

� The Order of appointment of Regular

administrator is final and appealable.

BASIS FOR THE PREFERENTIAL RIGHT The underlying assumption is that those

who will reap the benefits of a wise,

speedy and economical administration of

the estate or on the other hand, suffer

the consequences of waste,

improvidence or mismanagement, have

the higher interest and most influential

motive to administer the estate

correctly.

RULE 79

OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION AND

CONTENTS FOR LETTERS OF ADMINISTRATION

What is the MAIN ISSUE in an administration proceeding? Who is the person rightfully entitled to

administration.

Who may oppose the issuance of letters? GENERAL RULE: Any person interested in

the will. (Section 1)

EXCEPTION: Even where a person who

had filed a petition for the allowance of

the will of the deceased person had no

right to do so in view of his lack of

interest in the estate, nevertheless,

where the interested persons did not

object to its application, the defect in

the petition would be deemed cured.

The filing of the petition may be

considered as having been ratified by the

interested parties. (Eusebio vs. Valmores

97 PHIL 163)

Petition for Opposition may at the same

time be filed for Letters of

Administration with the will annexed.

Contents of a petition for letters of

administration: (Sec.2)

a) jurisdictional facts;

b) name, age, residence of heirs

and creditors;

c) probable value and character of

the estate; and

d) name of the person for whom

letters is prayed for.

No defect in the petition shall render

void the issuance of the letters of

administration.

Grounds for Opposition: 1. In Letters Testamentary

a) incompetence

2. In Letters of Administration a) incompetence;

b) preferential right of the heir

under Sec. 6, Rule 78.

Publication for 3 Weeks and notice to

heirs, creditors and other persons

believed to have an interest in the

estate is required before hearing.

Letters can be granted to any person or

any other applicant even if other

competent persons are present if the

latter fail to claim their letters when

notified by the court. (Sec. 6, Rule 79)






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RULE 80 SPECIAL ADMINISTRATOR

When may a probate court appoint a

special administrator? 1. Delay in granting of letters

including appeal in the probate

of the will.

2. Executor is a claimant of the

estate he represents.

- in this second instance, the

administrator shall have the

same powers as that of a

general administrator.

ORDER OF APPOINTMENT

DISCRETIONARY The preference accorded by Sec. 6 of

Rule 78 of the Rules of Court to surviving

spouse refers to the appointment of a

regular administrator, NOT to that of

special administrator, and that the order

appointing the later lies within the

discretion of the probate court, and is

not appealable. (Pijuan vs. De Gurrea,

124 Phil. 1527)

POWERS AND DUTIES

1. Possession and charge of the

goods, chattels, rights, credits,

and estate of the deceased;

2. Commence and maintain suit for

the estate;

3. Sell ONLY

a) perishable property; and

b) those ordered by the court;

4. Pay debts ONLY as may be

ordered by the court.

DURATION OF POWER OF SPECIAL

ADMINISTRATOR Until questions causing the delay is

decided and the regular administrator is

appointed.

When does the power of a special

administrator cease? After the questions causing the delay are

resolved and letters are granted to

regular executor or administrator.

Is appointment of special administrator appealable? NO, the same is INTERLOCUTORY.

However, appointment of a REGULAR

ADMINISTRATOR is appealable because it

is a final order. � It is possible for the executor or

administrator whose appointment is

challenged by appeal to be appointed

also as the special administrator pending

such appeal. There is no harm in

appointing the same person as special

administrator because there is a vast of

difference between the powers and

duties of the two positions.

RULE 81 BONDS OF EXECUTOR AND

ADMINISTRATOR

BOND OF EXECUTOR/ADMINISTRATOR (Sec.1)

When filed? Before an executor or administrator

enters upon execution of his trust

Amount? Fixed by the court

CONDITIONS 1. Make an INVENTORY of property

which came to his knowledge

and possession within 3 MONTHS.

2. ADMINISTER the estate and from

the proceeds pay all debts and

charges.

3. Render an ACCOUNT within ONE

YEAR

4. Perform all orders of the court.

ADMINISTRATOR’S BOND — STATUTORY BOND Conditions prescribed by statute forms

part of bond agreement.

Terms and effectivity of bond does not

depend on payment of premium and

does not expire until the administration

is closed. As long as the probate court






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retains jurisdiction of the estate, the

bond contemplates a continuing liability.

(Luzon Surety vs. Quebrar, 127 SCRA

295).

BOND OF SPECIAL ADMINISTRATOR (Sec.4)

Conditions 1. make inventory.

2. render accounting when required

by court.

3. deliver the same to person

appointed executor or

administrator or other

authorized persons.

The bond is effective as long as the court

has jurisdiction over the proceedings.

RULE 82 REVOCATION OF ADMINISTRATION,

DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

If after letters of administration have

been granted on the estate of the

decedent as if he had died intestate, his

will is allowed and proved by the court,

the letters of administration shall be

revoked and all powers thereunder

cease, and the administrator shall

forthwith surrender the letters to the

court, and render his account within

such time as the court may direct.

� The discovery of a will does NOT ipso

facto nullify the letters of administration

already issued until the will has been

proved and allowed pursuant to Rule 82

Sec. 1. (De Parreno vs. Aranzanso, GR

No. L-27657, Aug. 30, 1982)

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

Grounds

1. neglect to render accounts;

(w/in 1 YEAR or when the court

directs);

2. neglect to settle estate

according to these rules;

3. neglect to perform an order or

judgment of the court or a duty

expressly provided by these

rules;

4. absconding; or

5. insanity or incapability or

unsuitability to discharge the

trust. (Sec. 2)

These grounds are EXCLUSIVE.

Lawful acts of an administrator or

executor before the revocation,

resignation, or removal are valid unless

proven otherwise. (Sec.3)

POWERS OF NEW EXECUTOR OR ADMINISTRATOR (Sec. 4)

1. collect and settle the estate not

administered;

2. prosecute or defend actions

commenced by or against the

former executor or

administrator; and

3. recover execution on judgments

in the name of former executor

or administrator.

RULE 83 INVENTORY AND APPRAISAL PROVISION

FOR SUPPORT OF FAMILY Inventory and appraisal must be made

within 3 MONTHS from the grant of

letters testamentary or of

administration. (Sec.1)

Approval of an inventory is not a

conclusive determination of what assets

constituted the decedent’s estate and of

the valuation thereof. Such

determination is only provisional and a

prima facie finding of the issue of

ownership.

ALLOWANCE TO WIDOW AND FAMILY (Sec.3) Allowance - monetary advances subject

to collation and deductible from their

share in the estate of the decedent.

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

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






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� According to Art. 188 of the Civil

Code, the children need not be minors or incapacitated to be entitled to

allowance. (Santero vs CFI of Cavite, GR No. 61700-03, Sept. 24, 1987)

Grandchildren are NOT entitled to

allowance under Rule 83. (Heirs of Ruiz

vs CA)

When liabilities exceed the asset of the

estate, his widow and children are not

entitled to support pending the

liquidation of the intestate estate, on

the ground that such support, having the

character of an advance payment to be

deducted from the respective share of

each heir during distribution. (Wagner

vs. Moore)

RULE 84 GENERAL POWERS OF EXECUTORS AND

ADMINISTRATORS

POWERS OF EXECUTOR/ ADMINISTRATOR OF THE ESTATE

1. To have access to, and examine

and take copies of books and

papers relating to the

partnership in case of a

deceased partner;

2. To examine and make invoices of

the property belonging to the

partnership in case of a

deceased partner;

3. To make improvements on the

properties under administration

with the necessary court

approval except for necessary

repairs;

4. To possess and manage the

estate when necessary:

a) for the payment of debts;

and

b) for payment of expenses of

administration;

5. To maintain in tenantable

repairs houses and other

structures and fences and to

deliver the same in such repair

to the heirs or devisees when

directed so to do by the court.

SOME RESTRICTIONS ON POWER OF ADMINISTRATOR/EXECUTOR

1. Cannot acquire by purchase,

even at public or judicial

auction, either in person or

mediation of another, the

property under administration.

2. Cannot borrow money without

authority of the court.

3. Cannot speculate with

funds under administration.

4. Cannot lease the property for

more than one year.

5. Cannot continue the business of

the deceased unless authorized

by the court.

6. Cannot profit by the increase or

decrease in the value of the

property under administration.

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

GENERAL RULE: The executor or

administrator is accountable for the

whole estate of the deceased.

EXCEPTION: He is not accountable for

properties which never came to his

possession.

EXCEPTION TO THE EXCEPTION: When

through untruthfulness to the trust or his

own fault or for lack of necessary action,

the executor or administrator failed to

recover part of the estate which came to

his knowledge.

Administrator or executor shall not profit

by the increase of the estate nor be

liable for any decrease which the estate,

without his fault, might have sustained.

EXPENSES OF ADMINISTRATION: those

necessary for the management of the

property, for protecting it against

destruction or deterioration, and

possibly for the production of fruits.






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When shall executor or administrator render an account? (Sec.8)

RULE: Within one year from the time of

receiving letters testamentary or letters

of administration.

EXCEPTION: An extension of time is

allowed for presenting claims against or

paying the debts of the estate for

disposing of the estate but even in such

cases, the administration should be

terminated in not more than two-years

and a half.

RULE 86 CLAIMS AGAINST ESTATE

Claim - any debt or pecuniary demand

against the decedent’s estate.

When may a court issue notices to creditors to file their claims?

Immediately issued after granting letters

testamentary or of administration.

PURPOSE: for the speedy settlement of

the affairs of the deceased person and

early delivery of the property of the

estate into the hands of the persons

entitled to receive it.

Claims arising AFTER his death cannot be

presented except for:

a) funeral expenses; and

b) expenses of the last sickness of

the decedent.

Claims for taxes (inheritance and estate)

due and assessed after the death of the

decedent need not be presented in the

form of a claim. The court in the

exercise of its administrative control

over the executor or administrator may

direct the latter to pay such taxes. And

the heirs, even after distribution are

liable for such taxes.

STATUTE OF NON-CLAIMS (Sec.2)

When should the claims be filed? GENERAL RULE: Within in the time fixed

in the notice which shall not more than

12 MONTHS nor less than 6 MONTHS after

the date of the FIRST PUBLICATION.

Otherwise, they are BARRED FOREVER.

Even if the testator acknowledged the

debt in his will and instructed the

executor to pay the debt, the statute of

non-claims must still be complied with;

otherwise the claim may also be barred.

EXCEPTION: Belated Claims.

Belated Claims are claims not filed

within the original period fixed by the

court. On application of a creditor who

has failed to file his claim within the

time previously limited, at ANY TIME

BEFORE an order of distribution is

entered, the court MAY, for cause shown

and on such terms as are equitable,

allow such claim to be filed within a

time NOT EXCEEDING 1 MONTH from the

order allowing belated claims.

Statute of Non-Claims supersedes the

Statute of Limitations insofar as the

debts of deceased persons are

concerned. However, BOTH statute of

Non-Claims and Statute of Limitations

MUST CONCUR in order for a creditor to

collect.

Claims which are not filed within the Statute of Non-Claims are barred forever (Sec.5) Claims referred to under this section

refer to claims for the recovery of

money and which are not secured by a

lien against the property of the estate.

(Olave vs. Carlos, 208 Phil 678)

Claims which should be filed under the

Statute of Non-claims? 1. Money claims, debts incurred by

deceased during his lifetime

arising from contract

2. express or implied

3. due or not due

4. absolute or contingent

5. Claims for funeral expenses and

for the last illness of the

decedent.

6. Judgment for money against

decedent.






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Contingent Claim – conditional claim or

claim that are subject to the happening

of a future uncertain event.

Claims not yet due or contingent may be

approved at their present value.

HOWEVER, a creditor barred by the

Statute of Non-claims may file a claim as

a COUNTERCLAIM in any suit that the

executor or administrator may bring

against such creditor.

SOLIDARY OBLIGATION OF DECEDENT (Sec.6)

Claim should be filed against decedent

as if he were the only debtor without

prejudice on the part of the estate to

recover contribution from the other

debtor. (Jaucian vs Quero, 38 Phil 707l)

Joint obligation of decedent

The claim must be confined to the

portion belonging to the decedent.

MORTGAGE DEBT DUE FROM ESTATE (Sec.7)

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

1. ABANDON security and prosecute

his claim against the estate and

share in the same general

distribution of the assets of the

estate;

2. FORECLOSE his mortgage or

realize upon his security by

action in court making executor

or administrator a party

defendant and if there is

judgment for DEFICIENCY, he

may file a claim (contingent)

against the estate within the

statute of non-claims.

Agency coupled with an interest

The power to foreclose a mortgage is

not an ordinary agency that

contemplates exclusively the

representation of the principal by

the agent but is primarily an

authority conferred upon the

mortgagee for latter’s own

protection. That power survives the

death of the mortgagor. (Bicol

Savings and Loan Association vs. CA)

3. RELY SOLELY ON HIS MORTGAGE

and foreclose the name at

anytime within the period of the

statute of limitation but he

cannot be admitted as creditor

and shall not receive in the

distribution of the other assets

of the estate;

� These remedies are alternative, the

availment of one bars the availment of

other remedies.

JUDGMENT ALLOWING CLAIM (Sec.13) Judgment against executor and

administrator shall not create any lien

upon the property of the estate or does

not constitute a specific lien which may

be registered on such property.

Judgment of a probate court approving

or disapproving a claim is appealable.

� The mode of appeal is record on

appeal and must be filed within 30 DAYS

from notice of judgment.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS

AND ADMINISTRATORS

Actions which may or may not be brought against executor and administrator (Sec.1)

Independent and separate of the

probate proceeding:

1. recovery of real or personal

property or any interest therein

from the estate

2. enforcement of a lien thereon

3. action to recover damages for

any injury to person or property,

real or personal (tortuous acts)

These are actions that survive the death

of the decedent.

An action for revival of money judgment

may be filed against the administrator to






Special


preempt prescription of judgment.

(Romualdez vs. Tiglao, 105 SCRA 762).

Heir may not sue until share assigned

(Sec.3)

Before distribution is made or before any

residue is known, the heirs and devisees

have no cause of action against the

executor or administrator for recovery of

the property left by the decedent.

Proceedings when property concealed, embezzled or fraudulently conveyed (Sec.6)

PURPOSE: To elicit information or to

secure evidence from those persons

suspected as having possessed or having

knowledge of properties belonging to

deceased, or of having concealed,

embezzled or conveyed away any

properties of the deceased.

GENERAL RULE: The probate court has

no authority to decide whether or not

the properties belong to the estate or to

the person being examined since probate

courts are courts of limited jurisdiction.

EXCEPTIONS:

1. Provisional determination of

ownership for inclusion in the

inventory; or

2. Submission to the court’s

jurisdiction (Bernardo vs. CA, GR

No. 82483, Sept. 26, 1990)

Embezzlement before letters issued (Sec.8)

The responsible person shall be liable to

an action in favor of the executor or

administrator of the estate for double

the value of the property sold,

embezzled, or alienated, to be

recovered for the benefit of the estate.

Property fraudulently conveyed by the deceased may be recovered. When

executed or administered must bring action (Sec.9)

This provision applies when there is a

deficiency of assets in the hands of the

executor or administrator for the

payment of the debts and expenses for

administration

administration for it is under this

circumstance that there may be

conveyances made by the deceased with

intent to defraud the creditor.

REQUISITES BEFORE ACTION MAY BE FILED

1. deficiency in assets

2. the conveyance made is void (when

there are badges of fraud)

3. subject of conveyance is liable for

attachment in lifetime of

decedent.

When creditor may bring action. Lien for costs (Sec.10)

When a grantee in a fraudulent

conveyance is OTHER THAN THE

EXECUTOR OR ADMINISTRATOR, a

creditor may commence and prosecute

the action if the following requisites are

present:

1. That the executor or

administrator has shown to have

no desire to file the action or

failed to institute the same

within the reasonable time;

2. Leave is granted by court to

creditor to file the action;

3. Bond is filed by creditor as

prescribed in this provision; and

4. Action by creditor is in the name

of the executor or administrator.

� These requisites need not be

complied with if the grantee of the

fraudulent conveyance is the executor or

administrator himself, in which event

the action should be in the name of all

creditors.

RULE 88

Debts paid in full if estate sufficient (Sec.1)

If estate is insolvent, as in liabilities are

more than the assets, Sec.7 in relation

to Art. 1059 and 2239 to 2251 of the

Civil Code must apply. Use rule on

preference of creditors If it is sufficient

to satisfy claims of a class.






Special


When the will provides for payment of debts, Section 2 must be followed. Although testator acknowledged a

specific debt on his will, the creditor

must still file his claim in the testate or

intestate proceedings, otherwise his

claim will be barred.

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

If the court is satisfied that contingent

claim duly filed is valid, it may order the

executor or administrator to retain in his

hands sufficient estate to pay a portion

equal to the dividend of the creditors.

REQUISITES 1. contingent claim is duly filed;

2. court is satisfied that the claim

is valid; and

3. The claim has become absolute.

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

1. Payment approving a claim does

not create a lien upon a property

of the estate.

2. Special procedure is for the

court to order the sale to satisfy

the claim.

How contingent claim becoming absolute in two years allowed and paid

(Sec.5)

If such contingent claim becomes

absolute and is presented to the court,

or to the executor or administrator,

within two years from the time limited

for other creditors to present their

claims. The residual funds within the

estate, although already in the

possession of the universal heirs, are

funds of the estate. The Court has

jurisdiction over them and it could

compel the heirs to deliver to the

administrator of the estate the

necessary portion of such funds for the

payment of any claims against the

estate. (In re Testate Estate of

Margarita David, Sison vs. Teodoro, 98

Phil 680)

If the contingent claim matures after the

expiration of the two years, the

creditors may sue the distributees, who

are liable in proportion to the shares in

the estate respectively received by

them. (Jaucian vs. Querol, supra)

It has been ruled that the only instance

wherein a creditor can file an action

against a distributee of the debtor’s

assets is under Sec. 5, Rule 88 of the

Rules of Court. The contingent claims

must first have been established and

allowed in the probate court before the

creditors can file an action directly

against the distributees. (De Bautista vs.

De Guzman, 125 SCRA 682)

Estate of Insolvent nonresident, how disposed (Sec.9)

In the administration taken in the

Philippines of the estate of the

INSOLVENT his estate in the Philippines

shall be disposed of that his creditors in

and outside in the Philippines in

proportion to their respective credits.

When and how claim proved outside

the Philippines against insolvent resident’s estate paid (Sec.10)

Claims proven outside the Philippines

where the executor had knowledge and

opportunity to contest its allowance

therein may be added to the list of

claims in the Philippines against the

estate of an INSOLVENT RESIDENT and

the estate will be distributed equally

among those creditors.

However the benefit of Sections 9 and 10

cannot be extended to the creditors of

foreign country where the property of

the deceased therein is not equally

apportioned to creditors residing in the

Philippines and other creditors.

Time for paying Debts and Legacies (Sec.15) Need not exceed 1 year in the first

instance. But court extend on

application of executor or administrator

and after hearing and notice thereof.






Special


Extension must not exceed six months

for single extension. Whole period

allowed to the original executor or

administrator shall not exceed 2 years

(section 15) successor of dead executor

or administrator may be given an

extension not to exceed 6 months.

RULE 89

SALES, MORTGAGE AND OTHER ENCUMBRANCES OF THE PROPERTY OF

THE DECEASED

Order of sale of personalty (Sec.1)

The court may order the whole or part of

the personal estate to be sold if

necessary:

1. to pay debts and expense of

administration;

2. to pay legacies; or

3. to cover expenses for the

preservation of the estate.

When court may authorize sale, mortgage or other encumbrances of realty to pay debts and legacies though

personality not exhausted? (Sec. 2)

1. If personal estate is NOT

sufficient to pay debts, expenses

of administration and legacies;

2. If sale of personal estate may

injure the business or interests

of those interested in the estate;

3. If testator has NOT made

sufficient provision for payment

of such debts, expenses and

legacies;

4. If deceased was in his lifetime

under contract, binding in law to

deed real property to

beneficiary; (Section 8)

5. If the deceased during his

lifetime held real property in

trust for another person.

(Section 9)

REQUISITES a) application of

Executor/Administrator;

b) written notice to person

interested; and

c) hearing

� Assets in the hands of

executor/administrator will not be

reduced to prevent a creditor from

receiving his full debt or diminish his

dividends.

� Without notice and hearing, the

sale, mortgage or encumbrance is void.

Notice is mandatory. Noncompliance

therewith under the sale is null and void. Reason: The reason behind this

requirement is that the heirs are the

presumptive owner. Since they succeed

to all the rights and obligation of the

deceased from the moment of the

latter’s death, they are the person

directly affected by the sale or mortgage

and therefore cannot be deprived of the

property, except in the manner provided

by law. (Maneclang vs. Baun, 208 SCRA

179)

May the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries? (Sec. 5)

When it appears from records and

proceedings of a probate court of

another country that the estate of the

deceased in foreign country is not

sufficient to pay debts and expenses.

Application for authority to sell,

mortgage or encumber property of the

estate may be denied by the court if:

1. the disposition is not for any of

the reasons specified by the

rules; OR

2. under Section 3 Rule 89, any

person interested in the estate

gives a bond conditioned to pay

the debts, expenses of

administration and legacies.

RULE 90 DISTRIBUTION AND PARTITION OF THE

ESTATE

Liquidation means the determination of

all assets of the estate and payment of

all debts and expenses.






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

RULE: ORDER OF DISTRIBUTION shall be

made AFTER payments of all debts,

funeral expenses, expenses for

administration, allowance of widow and

inheritance tax is effected.

In these proceedings, the court shall:

1. collate;

2. determine heirs; and

3. determine the share of each

heir.

A separate action for the declaration of

heirs is not necessary.

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

Only after partition is approved and not

before, the court may order the delivery

to the heirs of their respective shares

except when the heir file a bond

conditioned to pay the debts.

An order which determines the

distributive shares of heirs is appealable.

If not appealed, it becomes final.

The probate court lose jurisdiction over

the settlement proceedings only upon

payment of all debts and expenses of the

obligor and delivery of the entire estate

to all the heirs. (Timbol vs. Cano, 1

SCRA 1271)

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

1. Showing that the executor,

administrator or person

interested in the estate applied

for such; and

2. The requirements as to notice

and hearing upon such

application have been fulfilled.

PROHIBITION AGAINST INTERFERENCE BY OTHER COURTS

As long as the order of distribution of the

estate has not been complied with, the

probate

probate proceedings cannot be deemed

closed and terminated, because a

judicial partition is not final and

conclusive and does not prevent the

heirs from bringing an action to obtain

his share, provided the prescriptive

period therefore has not elapsed. The

better practice, however, for the heir

who has not received his share, is to

demand his share through proper motion

in the same probate or administrative

proceedings, or for the reopening of the

probate or administrative proceedings if

it had already been closed, and not

through an independent action, which

would be tried by another court or judge

which may thus reverse a decision or

order of the probate or intestate court

already final and executed and re-

shuffle properties long ago distributed

and disposed of. (Timbol vs. Cano,

supra).

RULE 91 ESCHEATS

3 INSTANCES of ESCHEATS

1. When a person dies intestate

leaving no heir but leaving

property in the Philippines

(Section 1)

2. REVERSION PROCEEDINGS – Sale

in violation of the Constitutional

provision

3. Unclaimed Balance Act under

Banking Laws

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

the STATE is the last heir of the

decedent.

Who files? Solicitor General or his representative in

behalf of the Philippines.

Where to file? RTC of last residence or of location of his

estate in the Philippines if he is a non-

resident.






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If petition is sufficient in FORM and

SUBSTANCE the court shall:

1. Make an ORDER OF HEARING –

hearing shall not be more than 6

MONTHS AFTER ENTRY OF

ORDER.

2. Direct publication of the copy of

order – at least once a week for

6 CONSECUTIVE WEEKS.

REQUISITES 1. publication of the order

2. person died intestate

3. he is seized of real/personal

property in the Philippines

4. he left no heir or person entitled

to such property

5. there is no sufficient cause to

the contrary

The court, at the instance of an

interested party, or on its own motion,

may order the establishment of a

PERMANENT TRUST, so that only the

income from the property shall be used.

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

Who? By devisee, legatee, heir, widow/er, or

other person entitled thereto)

When to file? - Within 5 YEARS FROM DATE OF

JUDGEMENT otherwise forever barred.

OTHER ACTIONS FOR ESCHEATS (Sec. 5) - actions for reversion of property

alienated in violation of

Constitution or any statute.

- These shall be governed by Rule

91. HOWEVER, the action must

be instituted in the province

where the land lies in whole or

in part.

Period: Within 5 years from the date of

judgment; (under ART. 1014 of the Civil

Code, the 5-year period is reckoned from

the date the property was delivered to

the State and further provides that if the

property had been sold, the municipality

or city shall be accountable only for such

part of the proceeds as may not have

been lawfully spent.)

By whom: person of interest

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

1. if personal property, in the

municipality or city where he

last resided.

2. if real property, where the

property is situated.

3. if deceased never resided in the

Philippines, where the property

may be found.

Can court convert escheat proceedings into ordinary special proceedings or vice-versa?

NO. This is not allowed for the two

actions have different requirements in

acquiring jurisdiction. In special

proceedings, publication is once a week

for 3 weeks while in escheat, once a

week for 6 weeks.

RULE 92

GUARDIANSHIP

� Guardianship of minors is now

governed by the Rule on Guardianship of

Minors (A.M. No. 03-02-05-SC) which took

effect on May 1, 2003. While

guardianship of incompetents is still

governed by the provisions of the Rules

of Court on Guardianship (Rule 92 to

Rule 97).

MINOR INCOMPETENT

1. any relative; or 2. other person on

behalf of a minor; or

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

4. the Secretary of Social Welfare and

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

1. any relative; 2. friend; or 3. other person on

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

4. the Director of Health in favor of

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






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5. any one interested

in the estate of a non-resident incompetent (Sec.12)

5. any one interested

in the estate of a non-resident incompetent (Sec. 6)

Jurisdiction:

� Incompetents – RTC of his residence

or where his property is located in

case of non-residents (Sec. 1)

� Minor – Family Court of his residence

or where his property is located in

case of non-resident (Sec. 3, AM 03-

02-08)

KINDS OF GUARDIANS A. According to scope:

1. General - over the person of the

ward or over his property

2. Limited - over the property only

B. According to constitution:

1. general guardian

2. legal guardian

3. guardian ad litem

INCOMPETENT includes: (Sec. 2)

1. those suffering from penalty of

civil interdiction

2. hospitalized lepers

3. prodigals

4. deaf and dumb who are unable

to read and write

5. those of unsound mind though

they have lucid intervals

6. persons not of unsound mind but

by reason of age, disease, weak

mind and other similar causes

cannot take care of themselves

or manage their property.

RULE 93

APPOINTMENT OF GUARDIANS

Who may petition for appointment of guardian? The father and the mother shall jointly

exercise legal guardianship over the

person and property of their minor

without the necessity of a court

appointment. In such case, this Rule

shall be suppletory to the provisions of

the Family Code on Guardianship.

Contents of Petition

MINOR INCOMPETENT

a) the

jurisdictional facts;

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

c) the ground rendering the appointment necessary or convenient;

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

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

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

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

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

a) the

jurisdictional facts;

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

c) the probable value and character of his estate;

d) the names, ages, and residences of the relatives of the minor or incompetent, and of the

e) persons having him in their care;

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






Special


� The petition involving minors is

required to be VERIFIED and

accompanied by certification against

FORUM SHOPPING while that involving

incompetent must be verified only.

HOWEVER, no defect in the petition or

verification shall render void the

issuance of letters of guardianship.

There is NO requirement for

PUBLICATION, only notice EXCEPT in

case of nonresident minor/incompetent.

HOWEVER, service of NOTICE upon minor

if 14 years of age or over, or upon

incompetent is mandatory and

jurisdictional.

If the person is insane, service of notice

upon the Director of Hospital where

hospitalized is sufficient.

OPPOSITION TO PETITION (Sec. 4)

Grounds 1. majority of alleged minor

2. competency of alleged

incompetent

3. unsuitability of the persons for

whom letters are prayed

Procedure a. filing of petition

b. court shall set the case for

hearing

c. cause notices to be served to

the persons mentioned in the

petition, including minor, if

14 years and above

d. court shall receive evidence

e. declaration of the propriety of

the petition

f. issue letters of guardianship

BONDS OF GUARDIANS Before an appointed guardian enters

upon the execution of his trust, he shall

give a BOND (Sec. 1 Rule 94).

SELLING AND ENCUMBERING PROPERTY OF WARD: A. Grounds

1. when income of estate is

insufficient to maintain ward

and family or to maintain and

educate ward when a minor; or

2. when it appears that it is for

the benefit of the ward.

B. Requirements 1. petition must be verified;

2. notice must be given to the

next of kin; and

3. hearing so that they may show

cause why petition should not

be granted.

� Notice to next of kin and interested

persons is JURISDICTIONAL.

Next of kin - pertains to those relatives

who are entitled to share in the estate

of the ward under the Law on Intestate

succession including those who inherit

per stirpes or by right of representation.

Sale of the ward’s realty by the guardian

without authority from the court is VOID.

Under the law, a parent acting merely as

legal administrator of the property of

his/her children, does NOT have the

power to dispose of, or alienate, the

property of said minor without judicial

approval (Lindain vs. CA, GR No. 95305,

Aug. 20, 1992).

� The Order of Sale must specify the

grounds.

C. Duration of the order for sale and

encumbrance of property - Within 1

year from the granting of the order.

It is presumed that if the property

was not sold within 1 year, the ward

has sufficient income.

The authority to sell or encumber shall

not extend beyond 1 year unless

renewed by the court.

GENERAL POWERS AND DUTIES OF GUARDIANS

1. have the care and custody of the

person of the ward, and the

management of his estate, or

the management of the estate

only, as the case may be; 2. pay the debts of the ward;






Special


3. settle accounts, collect debts

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

frugally, and apply the proceeds

to maintenance of the ward; 5. render verified inventory

verified within 3 MONTHS after

his appointment and annually

thereafter upon application of

interested persons; and

6. render to court for its approval

an accounting of the property for

1 YEAR from his appointment &

every year thereafter. TERMINATION OF GUARDIANSHIP

A. Grounds for termination

MINOR INCOMPETENT

1. The ward has

come of age; or

2. has died

1. competency of

the ward has

been judicially

determined

2. guardianship is

no longer

necessary

B. Grounds for removal of a guardian: 1. insanity;

2. incapability or unsuitability to

discharge functions;

3. wastage or mismanagement of

the property of the ward; and

4. failure to render an account or

make a return within 30 days

after it was due.

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

effective May 1, 2003)

A. Grounds for Petition (Sec. 4)

1. Continued Absence, or

Incapacity or Death of his

parents; (AID) 2. Suspension, Termination or

Deprivation of parental

authority; (STD)

3. Remarriage of his surviving

parent, if the latter is found

unsuitable to exercise parental

authority;

4. When the best interest of the

minor so requires.

B. Qualifications of Guardians (Sec. 5)

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

guardianship

6. Lack of conflict of interest with

the minor

7. Ability to manage the property

of the minor.

C. Who may be appointed guardian of the person or property, or both, of a minor (Sec.6)

In default of parents or a court

appointed guardian, the court may

the following observing as far as,

practicable, the ORDER OF

PREFERENCE:

1. the SURVIVING GRANDPARENT

and in case several grandparents

survive, the court shall select

any of them taking into account

all relevant considerations;

2. the OLDEST BROTHER OR SISTER

of the minor over twenty-one

years of age, unless unfit or

disqualified;

3. the ACTUAL CUSTODIAN of the

minor over twenty-one years of

age, unless unfit or disqualified;

and

4. any OTHER PERSON, who in the

sound discretion of the court

would serve the best interests of

the minor.

D. Case Study Report (Sec. 9)

The court shall order a social worker

to conduct a case study of the minor

and all prospective guardians and

submit report and recommendation

to the court for its guidance before

the scheduled hearing.






Special


E. Bond of parents as guardians of property of minor (Sec. 16)

If the market value of the property

on the annual income of the child

exceeds P50,000, the parent

concerned shall furnish a bond in

such amount as the court may

determine, but in no case less than

10% of the value of such property or

income, to guarantee the

performance of the obligations

prescribed for general guardians.

A verified petition for approval of the

bond shall be filed in the Family Court of

the place where the child resides or, if

the child resides in a foreign country, in

the Family court of the place where the

property or any part thereof is situated.

The petition shall be docketed as a

summary special proceeding in which all

incidents and issues regarding the

performance of the obligations of a

general guardian shall be heard and

resolved.

REMOVAL OR RESIGNATION OF

GUARDIAN (Sec. 24)

No motion for removal or resignation

shall be granted unless the guardian has

submitted the proper accounting of the

property of the ward and the court has

approved the same.

Grounds for termination of guardianship (Sec. 25).

The court motu propio or upon verified

motion of any person allowed to file a

petition for guardianship may terminate

the guardianship on the ground that the

ward has COME OF AGE or has DIED. The

guardian shall notify the court of such

fact within 10 days of its occurrence.

RULE 98 TRUSTEES

Jurisdiction: RTC in which the will was

allowed, if it be a will allowed in the

Philippines, otherwise by the RTC of the

province in which the property, or some

portion thereof, affected by the trust is

situated.

A trustee is necessary to carry into

effect:

a) A will where the testator

omitted to appoint a trustee in

the Philippines (Testamentary Trust); and

b) Other written instruments where

the trustee therein declines,

resigns, dies, or is removed

before accomplishment of trust

(Contractual Trust).

No persons succeeding to a trust as

executor or administrator of a formal

trustee shall be required to accept such

trust.

TRUSTEE APPOINTED ABROAD (Sec. 4)

When land in the Philippines is held in

trust for a resident by a trustee who

derives his authority from abroad, such

trustee must petition the RTC where the

land is situated, otherwise, the trust will

be vacant and a new trustee will be

appointed.

When a trust is created abroad for

property in the Philippines, judicial

approval is still needed though trustor is

alive.

BOND OF TRUSTEES (Sec. 5)

Neglect of trustees to file a bond will be

interpreted by the court as resignation

or decline to accept the trust.

However, he may be exempted from

bond when requested by:

a. testator;

b. All persons beneficially

interested in the trust.

However, the court may cancel such

exemption anytime.

REMOVAL OR RESIGNATION OF THE TRUSTEE (Sec. 8)

REQUISITES 1. Petition filed by parties

beneficially interested;

2. Notice to trustee; and

3. Hearing.






Special


Who may petition? Parties beneficially interested.

Grounds

1. essential in the interest of

petitioners

2. insanity

3. incapability of discharging

trustee

4. unsuitability

Rules on Sale and Encumbrance of Trust

Estate shall conform as nearly as may be

to the provisions on Sale and

Encumbrance by Guardians.

ADOPTION AND CUSTODY OF MINORS

� The provisions of the Rules of Court

on Adoption have been amended by the

Domestic Adoption Act of 1998 and

the Intercountry Adoption Act of 1995 EXCEPT: Secs 6 & 7 of Rule 99

� Effective August 22, 2002, there is a

new Rule on Adoption.

NATURE AND CONCEPT OF ADOPTION Adoption is a juridical act, a proceeding

IN REM, which creates between two

persons a relationship similar to that

which results from legitimate paternity

and filiation.

Only an adoption made through the

court, or in pursuance with the

procedure laid down under Rule on

Adoption is valid in this jurisdiction.

PURPOSE OF ADOPTION The promotion of the welfare of the

child and the enhancement of his

opportunities for a useful and happy life,

and every intendment is sustained to

promote that objective.

WHAT DOES THE COURT DETERMINE IN ADOPTION CASES

1. capacity of the adopters

2. whether the adoption would be

the best interest of the child

Adoption is strictly personal between the

adopter and the adopted. (Teofico vs.

Del Val)

RULES ON ADOPTION (Secs. 1-25)

DOMESTIC ADOPTION

WHO MAY ADOPT 1. Any Filipino Citizen -

a) of legal age;

b) in possession of full civil capacity

and legal rights;

c) of good moral character;

d) has not been convicted of any

crime involving moral turpitude;

e) emotionally and psychologically

capable of caring for children;

f) in a position to support and care

for his/her children in keeping

with the means of the family;

and

g) at least 16 YEARS older than the

adoptee.

2. Any alien possessing the same

qualifications as above; provided:

a) That his/her country has

diplomatic relations with the

PHILIPPINES;

b) That he/she has been living in

the Philippines for at least 3

CONTINUOUS YEARS prior to the

filing of the application for

adoption;

c) Maintains residence until the

adoption decree is entered;

d) Certified to have legal capacity

to adopt, by his/her country;

and

e) That his/her government allows

the adoptee to enter his/her

country as his/her adopted

son/daughter.

3. The guardian with respect to the

ward after the termination of the

guardianship and clearance of his

financial accountabilities.

The requirement of 16 YEARS difference

between the adopter and the adoptee is

NOT applicable if the adopter is:

1. the biological parent of the adoptee

2. the spouse of the adoptee’s parent






Special


The requirement on residency and

certification of alien’s qualification to

adopt may be WAIVED for the following:

1. The adoptee is a former Filipino

citizen who seeks to adopt a

relative within the 4th degree of

consanguinity or affinity.

2. One who seeks to adopt the

legitimate son/daughter of

his/her Filipino spouse.

3. One who is married to a Filipino

citizen and seeks to adopt jointly

with his/her spouse a relative

within the 4th degree of

consanguinity or affinity of the

Filipino spouse.

WHO MAY BE ADOPTED 1. Any person below eighteen (18)

years of age who has been

judicially declared available for

adoption OR voluntarily

committed to DSWD.

2. The legitimate child of one

spouse by the other spouse.

3. An illegitimate child by a

qualified adopter to raise the

status to that of legitimacy.

4. A person of legal age

regardless of civil status, if,

prior to the adoption, said

person has been consistently

considered and treated by the

adopters as their own child since

minority.

5. A child whose adoption has been

previously rescinded.

6. A child whose biological or

adoptive parents have died.

7. A child not otherwise

disqualified by law or these

rules.

GENERAL RULE: Husband and wife shall

jointly adopt.

EXCEPTIONS:

1. If one spouse seeks to adopt the

legitimate son/daughter of the

other.

2. If one spouse seeks to adopt

his/her own illegitimate

son/daughter.

3. If the spouses are legally

separated from each other.

VENUE (Sec.6)

Family Court where the prospective

adoptive parents reside.

Petition shall be verified and specifically

state at the heading of the initiatory

pleading whether the petition contains

an application for a change of name,

rectification of simulated birth,

voluntary or involuntary commitment of

children, or declaration of child as

abandoned, dependent or neglected.

A certification of non-forum shopping

shall be included pursuant to Section 5,

Rule 7 of the 1997 Rules of Civil

Procedure.

PROCEDURE A. ORDER OF HEARING (Sec.12)

- must be published at least once

a week for 3 CONSECUTIVE WKS.

- at the discretion of the court,

copies of the order of hearing

shall be furnished to the office

of the Sol.Gen. through the

provincial or city prosecutor, the

DSWD and the biological parents

of the adoptee, IF KNOWN.

- if a change in the name of the

adoptee is prayed for in the

petition, notice to the Sol. Gen.

Shall be MANDATORY.

B. CHILD & HOME STUDY REPORTS (Sec.13)

- social worker verifies with the

Civil Registry the real identity

and the name of adoptee and

the fact that he is legally

available for adoption.

- social worker may make

recommendations to the court if

he finds some grounds to deny

the petition.

C. HEARING (sec.14)

- to be held within 6 MONTHS from

the date of issuance of the order

EXCEPT: in case of APPLICATION FOR

CHANGE OF NAME which hearing

must not be within 4 MONTHS after

LAST PUBLICATION nor within 30

DAYS prior to election.






Special


- the petitioner and the adoptee

must personally appear and the

former must testify in court.

D. SUPERVISED TRIAL CUSTODY (STC) (Sec.15)

Before issuance of decree of

adoption the court shall give the

adopter trial custody of the adoptee

for at least 6 MONTHS.

Reason: So the parties will adjust

psychologically and emotionally to

each other and establish a bonding

relationship.

� Court may reduce or exempt parties

from STC.

GENERAL RULE: Alien adopter must complete the 6

MONTHS STC.

EXCEPTION: Same as Exemptions from requirements

of residency and certification.

E. DECREE OF ADOPTION If issued, this will take effect as of

the date of filing of the original

petition.

In case of change of name, the

decree shall be submitted to the

Civil Registrar where the court

issuing the same is situated.

An amended birth certificate shall

be issued. The original birth

certificate shall be stamped

“cancelled” and shall be sealed in

the Civil Registry records.

� The new birth certificate to be issued

to the adoptee shall not bear any

notation that it is an amended issue.

EFFECTS OF 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.

� All hearings and records are

confidential. (Sec.18)

INTER COUNTRY ADOPTION (Secs. 26-32)

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

child may be filed by a foreign

national or Filipino citizen

permanently residing abroad with

the Family Court having jurisdiction

over the place where the child

resides or may be found.

- It may be filed directly with the

Inter-Country Adoption Board.

WHO MAY ADOPT 1. any alien or Filipino citizen

permanently residing abroad who

is at least twenty-seven (27)

years of age;

2. other requirements same as with

RA 8552.

WHO MAY BE ADOPTED Only a legally free child may be the

subject of inter-country adoption.

� A child under the Inter-Country

Adoption Act is defined as any person

below fifteen (15) years of age. RESCISSION AND REVOCATION OF

ADOPTION

Under the Domestic Adoption Act of 1998, the ADOPTER CAN NO LONGER

REVOKE the adoption, he can merely

disinherit the adoptee in accordance

with the provisions of the Civil Code.

In revocation, it relates only as to the

date of the judgment. Hence in

revocation, vested rights prior to

rescission should be respected.

Who files? 1. ADOPTEE






Special


a) over 18 years of age or

b) if minor with assistance of

DSWD

2. GUARDIAN if over 18 but

incapacitated or COUNSEL

Grounds 1. repeated physical violence and

verbal maltreatment by the

adopter despite having

undergone counseling;

2. attempt on the life of the

adopter;

3. sexual assault or violence; or

4. abandonment or failure to

comply with parental

obligations.

Venue FAMILY COURT of the city or province

where the adoptee resides. (Sec. 20)

Period within which to file VERIFIED petition (Sec. 21)

5 YEARS from reaching age of majority or

from recovery of incompetency.

Adverse party shall file his ANSWER

within 15 days from receipt of order of

court requiring him to answer. (Sec. 22)

EFFECTS OF JUDGMENT OF RESCISSION 1. parental authority or legal

custody will be restored

2. reciprocal rights of adoptee and

adopter will be extinguished

3. vested rights required prior to

judicial rescission shall be

respected

4. adoptee shall use the name

stated in his original borth or

foundling certificate

5. civil registrar will reinstate his

original birth or foundling

certificate

Unlike in revocation of guardianship,

revocation of adoption is a separate

proceeding from the adoption.

RULE 99, SECTIONS 6 & 7 � Sections 6 and 7 of Rule 99 of the

Rules of Court referring to Custody of

Minors are still valid provisions.

Rule 99, Section 6. Proceedings as to child whose parents are separated. The question as to the care and custody

and control of a child or children of their

marriage is brought before a Regional

Trial Court by Petition or as an incident

to any other proceedings.

When parents considered unfit to take charge of the child

1. by reason of moral depravity

2. habitual drunkenness

3. incapacity

4. poverty

ORDER OF PREFERENCE in case the

parents are unfit 1. Parental/Maternal grandparents 2. Child’s oldest brother or sister 3. Some reputable or discreet

person 4. Any suitable asylum, children’s

home or benevolent society.

No child under seven (7) years of age

shall be separated from its mother,

unless the court fins there are

compelling reasons therefor.

Rule 99, Section 7. Custody of Vagrant or Abused Child Jurisdiction and Venue Family Courts of the territory where the

petitioner resides.

Grounds 1. Parents of the minor are dead;

2. Parents have abandoned the

child by reason of long absence

or legal or physical impossibility;

3. Parents cannot support the

child;

4. Parents treat the child with

excessive harshness;

5. Parents give the child corrupting

orders, counsels or examples;

6. Parents cause or allow the child

to engage in begging;

7. Parents cause or allow child to

commit offenses against the law.

PROCEDURE

1. Filing of Petition – by a reputable

resident of the province






Special


2. Show Cause Order – directed to

parents or in case the parents

are dead or cannot be found,

requiring the fiscal of the

province to show cause, why the

child should not be taken from

its parents, if living 3. Hearing and Order 4. Service of Judgment – upon the

Civil Registrar of the city or

municipality where the court

issuing the same is situated.

RULE 101 PROCEEDINGS FOR HOSPITALIZATION

OF INSANE PERSONS Venue RTC of province where the person

alleged to be insane is found.

Who files? Director of Health with assistance of city

or provincial fiscal.

Requisites

1. Director of Health is of the

opinion that the commitment of

the person alleged to be insane

is for PUBLIC WELFARE or for

THE WELFARE of said person

2. Such person or one having charge

of him is opposed or his being

taken to hospital or asylum

DISCHARGE OF INSANE (Sec. 4)

Director of Health may file this petition

when he is of the opinion that the person

is permanently or temporarily cured or

may be released without danger

RULE 102 HABEAS CORPUS

Habeas corpus extends to: (Sec.1)

1. cases of illegal confinement or

detention by which a person is

deprived of his liberty; and

2. cases by which the rightful custody of

the person is withheld from the

person entitled thereto

� The restraint must be actual,

effective and material. The person need

not actually be confined as long as

freedom of action is limited. (Moncupa

vs. Enrile, GR No. 61107, Apr. 26, 1983)

Writ of Habeas Corpus - a command

directed to the person detaining

another, requiring him to produce the

body of the person detained at a

designated time and place, and to

produce and to show cause and to

explain the reason for detention.

PURPOSE The essential object and purpose of the

writ of habeas corpus is to inquire into

all manner of involuntary restraint as

distinguished from voluntary, and to

relieve a person therefrom if such

restraint is illegal. (Moncupa vs. Enrile,

supra)

And any further rights of the parties are

left untouched by decision on the writ,

whose principal purpose is to set the

individual at liberty. (Villavicencio vs.

Lukban)

The privilege of writ is so sacred that,

according to our CONSTITUTION, it shall

not be suspended except in cases of

invasion or rebellion when public

security requires it (Art. III, Sec. 15).

IN CASES OF ILLEGAL CONFINEMENT OR DETENTION GENERAL RULE: The release, whether

permanent or temporary, of a detained

person renders the petition for habeas

corpus moot and academic.

EXCEPTION: When there are restraints

attached to his release which precludes

freedom of action, in which case the

court can still inquire into the nature of

his involuntary restraint. (Villavicencio

vs. Lukban)

Whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the

offense.






Special


We hold that such a reservation is

repugnant to the government of laws

and not of men principle. Under this

principle, the moment a person is

acquitted on a criminal charge he can no

longer be detained or re-arrested for the

same offense. (Moncupa vs. Enrile)

GROUNDS FOR RELIEF

1. deprivation of any fundamental

or constitutional right

2. lack of jurisdiction of the court

to impose the sentence

3. excessive penalty

Requisites for the issuance of the Writ

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

1. that the petitioner has the right

to the custody over the minor 2. that the rightful custody of the

minor is being withheld from the

petitioner by the respondent 3. that it is to the best interest of

the minor concerned to be in the

custody of the petitioner and not

that of respondent. (Sombong vs.

CA, January 31, 1996)

� Habeas Corpus can never be a

substitute for appeal.

Whether the petition for the writ of

habeas corpus may be properly filed together with the petition for certiorari and mandamus The Court ruled that the writs of habeas

corpus and certiorari may be ancilliary

to each other where necessary to give

effect to the supervisory powers of the

higher courts. A writ of habeas corpus

reaches the body and the jurisdictional

matters, but not the record. A writ of

certiorari reaches the record but not the

body. Hence, a writ of habeas corpus

may be used with the writ of certiorari

for the purpose of review. However,

habeas corpus does not lie where the

petitioner has the remedy of appeal or

certiorari because it will not be

permitted to perform the functions of a

writ of error or appeal for the purpose of

reviewing mere errors or irregularities in

the proceedings of a court having

jurisdiction over the person and the

subject matter. (Galvez, et al. vs. CA, et

al., 237 SCRA 685).

� The person on bail is not entitled to

habeas corpus because his detention is

legal and technical.

Does voluntary restraint constitute

habeas corpus? As a GENERAL RULE, NO. EXCEPT when a

person restrained is a minor and the

petitioner is the father or mother or

guardian or a person having custody of

the minor.

� Voluntariness is viewed from the

point of view of the person entitled to

custody.

Supervening Events May Bar Release

Even if the arrest of a person is illegal,

supervening events may bar release of

discharge from custody. What is to be

inquired into is the legality of detention

as of, at the earliest, the filing of the

application for the writ of habeas

corpus. (Velasco vs. CA, July 7,1995).

Preliminary Citation - issued by the

court to show cause whether or not the

writ should be issued

Who may grant the petition (Sec.2)

1. SC or any member thereon

2. CA or any member thereof

3. RTC or any judge thereof

4. MTC - in the absence of RTC

judges

Procedure for grant of writ a. verified petition signed by the

party for whose relief it is

intended; some other person in

his behalf;

b. allowance of writ;

c. command officer to produce;

d. service of writ by sheriff or other

officer;

e. return; and

f. hearing on return.






Special


To whom writ directed and what to require. (Sec.6)

Directed to officer and commands him

to:

1. have the body of person before

the court; and

2. show cause of the imprisonment

or restraint.

How writ is executed and returned

(Sec.8)

Officer shall: 1. Convey the person so imprisoned

before the judge, unless from

sickness or infirmity, such person

cannot, without danger be

brought before the court.

2. Make the return of the writ

together with the day and the

cause of caption or restraint.

Defect of form (Sec.9)

NO writ can be disobeyed for defect in

form IF it sufficiently states:

1. person in whose custody or

under whose restraint the party

imprisoned or restraint is held,

and

2. court or judge before whom he is

to be brought.

When the return evidence, and when only a plea (Sec.3)

If a prisoner is in custody under a

warrant of commitment in pursuance of

law or under a judicial order, the return

shall be considered PRIMA FACIE

EVIDENCE OF THE CAUSE OF RESTRAINT,

however it shall only be plea of the

facts set forth if restraint is by private

authority.

When prisoner discharged if no appeal. (Sec.15)

If one is unlawfully imprisoned, court

shall order his discharge but such

discharge shall not be effective until a

copy of the order has been served on the

office or person detaining the prisoner.

If person detaining him does not appeal,

the prisoner shall be released.

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

1. By legal process

2. Prisoner is delivered to an

inferior officer to carry to jail

3. By order of proper court or judge

be removed from one place to

another within the Phil. for trial.

4. In case of fire, epidemic,

insurrection or other necessity or

public calamity.

When does court acquire jurisdiction over person of respondent? The writ itself plays the role as summon

in ordinary actions; court acquires

jurisdiction over the person of the

respondent BY MERE SERVICE OF WRIT.

APPEAL IN HABEAS CORPUS CASES The appeal in habeas corpus cases may

be taken in the name of the person

detained or of the officer or person

detaining him.

An appeal in habeas corpus cases shall

be perfected by filing with the clerk of

court or the judge, within 48 hours from

notice of judgment, a notice of appeal.

RULE ON CUSTODY OF MINORS AND

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

Who may file Petition? (Sec.3)

- A verified petition for the rightful

custody of a minor may be filed by any

person claiming such right.

Where to file petition? (Sec.3)

- Family Court of the province or city

where the petitioner resides or where

the minor may be found.

Provisional Order Awarding Custody

(Sec.13)

As far as practicable, the following order

of preference shall be observed in the

award of custody:

a. Both parents jointly;

b. Either parent, taking into

account all relevant

considerations, especially the






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choice of the minor over seven

years of age and of sufficient

discernment unless the parent

chosen unfit;

c. The grandparent or if there are

several grandparents,

grandparent chosen by the minor

over seven years of age and of

sufficient discernment, unless

the grandparent chosen is unfit

or disqualified;

d. The eldest brother or sister over

twenty years of age unless he or

she is unfit or disqualified;

e. The actual custodian of the

minor over twenty years of age,

unless the former is unfit or

disqualified; or

f. Any other person or institution

the court may deem suitable to

provide proper care and

guidance for the minor.

Temporary Visitation Rights (Sec.15)

The court shall provide in its order

awarding provisional custody appropriate

visitation rights to the non- custodial

parent or parents, unless the court finds

said parent or parents unfit or

disqualified.

Petition for Writ of Habeas Corpus (Sec. 20)

� shall be filed with the Family

court.

� shall be enforceable within its

judicial region to which the

Family Court belongs.

� the petition may however be

filed with the regular court in

the absence of the presiding

judge of three Family Court,

provided however that the

regular court shall refer the case

to the family Court as soon as its

presiding judge returns duty.

� petition may also be filed with

the SC, CA, or with any of its

members and, if so granted the

writ shall be enforceable

anywhere in the Philippines. The

writ may be made returnable to

a Family court or to any regular

court within the region where

the petitioner resides or where

the minor may be found for

hearing and decision on the

merits.

RULE 103 CHANGE OF NAME

Venue (Sec. 1)

RTC of the province in which he resides.

Contents of Petition (Sec.2)

It shall set forth:

1. that petitioner is a bonafide

resident of the province where

petition is filed for at least three

years prior to the date of filing;

2. all names by which petitioner is

known;

3. cause for change of name;

4. name asked for.

Petition shall be signed and verified by

person desiring his name changed or

some other person in his behalf.

Requirement of verification is formal,

NOT jurisdictional requisite. It is not a

ground for dismissing petition.

Jurisdictional Requirements 1. the verified petition should be

published for three successive

weeks in some newspaper of

general circulation in the

province;

2. that both the title and caption of

the petition and its body shall

recite:

a) name /names or aliases of

the applicant;

b) cause for which the change

of name is sought;

c) new name asked for. (Secan

Kok vs. Republic, 52 SCRA

322). Hearing - shall not be within 30 days

prior to an election nor within 4 MONTHS

after the LAST PUBLICATION of notice of

hearing.






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Effects of Discrepancy in the Petition and Published Order The defect in the petition and the order,

as to the spelling of the name of the

petitioner, is substantial, because it did

not correctly identify the party to said

proceedings.

Grounds for change of name 1. name is ridiculous, tainted with

dishonor and extremely difficult

to write or pronounce;

2. consequence of a change of

status; e.g. legitimated child;

3. necessity to avoid confusion;

4. having continuously used and

been known since childhood by a

Filipino name, unaware of her

alien parentage;

5. a sincere desire to adopt a

Filipino name to erase signs of

former alienage, all in good faith

and without prejudicing

anybody.

TITLE OF PETITION MUST CONTAINED THE FOLLOWNG

1. Official name (birth certificate) –

be very particular with the

spelling because it may avoid or

annul the proceedings; it is

jurisdictional;

2. all aliases; and

3. name asked for.

All the names or aliases must appear in

the title or caption of the petition,

because the reader usually merely

glances at the title of the petition and

may only proceed to read the entire

petition if the title is of interest to him.

(Secan Kok vs. Republic,supra).

A decree of adoption grants the adoptee

the right to use the adopter’s surname

but not to change the former’s first

name which relief must be sought in a

discrete petition under Rule 103.

(Republic vs. Hernandez, GR NO.

117209, February 9, 1996).

� For administrative procedure for

Change of Name, refer to Administrative

Order 1, Series of 2004. It only applies

to:

1. clerical errors; and

2. innocuous errors.

RULE 107 ABSENTEES

ABSENTEE

CONSEQUENCE

0-2 years

--------

2 years to 7 years

Petition for

declaration of

absence may be filed

Beyond 7 years

(absence of 4 years

under extraordinary

circumstance)

Considered dead for

all intents and

purposes except for

purposes of

succession

For purposes of

marriage: 4 years

continuous absence

shall be sufficient for

present spouse to

remarry, 2 years only

under extraordinary

circumstance

PURPOSE OF PETITION - to appoint an

administrator over the properties of the

absentee. Hence, if absentee left no

properties, such petition is unnecessary.

GROUNDS FOR TERMINATION OF THE ADMINISTRATION

1. absentee personally appears

through an agent

2. absentee death is proven and

heirs appear

3. third person appears showing

that he acquired title over the

property of the absentee

4. Actual or presumptive death

cannot be the subject if it is the

onlt question or matter involved

in a case or upon which a

competent court has to pass.

(Lukban vs. Republic, GR No.

8492, February 29, 1956)






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No independent action for Declaration of Presumption of Death Exception: the need for declaration of

presumptive death for purposes of

marriage (Article 41 of the Family Code).

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Republic Act No. 9048 which was passed

by Congress on February 8, 2001

substantially amended Article 412 of the

New Civil Code, to wit:

SECTION 1. Authority to Correct Clerical

or Typographical Error and Change of

First Name or Nickname.—No entry in a

civil register shall be changed or

corrected without a judicial order,

except for clerical or typographical

errors and change of first name or

nickname which can be corrected or

changed by the concerned city or

municipal civil registrar or consul

general in accordance with the

provisions of this Act and its

implementing rules and regulations.

The above law speaks clearly. Clerical or

typographical errors in entries of the

civil register are now to be corrected

and changed without need of a judicial

order and by the city or municipal civil

registrar or consul general. The obvious

effect is to remove from the ambit of

Rule 108 the correction or changing of

such errors in entries of the civil

register. Hence, what is left for the

scope of operation of Rule 108 are

substantial changes and corrections in

entries of the civil register. (Lee vs. CA,

G.R. No. 118387, October 11, 2001).

Requisites of Adversarial proceedings 1. Proper petition is filed where the

Civil Registrar and all parties

interested are impleaded.

2. The order of the hearing must be

published once a week for three

consecutive weeks.

3. Notice thereof must be given to the

Civil Registrar and all parties

affected thereby.

4. The civil registrar and any person

having or claiming any interest under

the entry whose cancellation or

correction is sought may, within 15

days from notice of the petition or

from the last date of publication of

such notice, file his opposition

thereto.

5. Full blown trial.

� Proceedings for the correction of

entries should not be considered as

establishing one’s status in a manner

conclusively beyond dispute. The status

corrected would not have a superior

quality for evidentiary purposes. There is

no increase or diminution of substantive

right. (Chiao Ben Lim vs. Zosa, L- 40252,

December 29, 1986)

PETITIONS FOR CHANGE OF NAME

PETITIONS FOR THE CORRECTION, CANCELLATION OF

ENTRIES

Petition to be filed

in the RTC where

the petitioner

resides

Verified petition

filed in the RTC

where the

corresponding Civil

registry is located

Solicitor General

must be notified by

service of a copy of

the petition.

Civil registrar

concerned is made a

party to the

proceeding as a

respondent. The

Solicitor General

must also be notified

by service of a copy

of the petition.

Petition is filed by

person desiring to

change his name

Petition is filed by

any person

interested in any

ACT, EVENT, ORDER

or DECREE

Order for hearing

shall be published

once a week for

three consecutive

weeks

Order shall also be

published once for

three consecutive

weeks and court

shall cause

reasonable notice to

persons named in

petition

Service of judgment shall be upon the civil

register concerned






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Petition for change of name (Rule 103) and petition for cancellation or

correction of entries are DISTINCT

PROCEEDINGS.

Hence, a party cannot change name and

correct an entry in a single petition

without satisfying the jurisdictional

requirements. (Republic v. Balmore)

RULE 109 APPEALS IN SPECIAL PROCEEDINGS

Orders or judgments from which appeals may be taken (Sec.1)

An interested person may appeal in

special proceedings from such order or

judgment rendered which:

1. Allows or disallows a will;

2. Determines who are the lawful

heirs of a deceased person, or

the distributive share of the

estate to which such person is

entitled;

3. Allows or disallows, in whole or

in part, any claim against the

estate of a deceased person, or

any claim presented on behalf of

the estate in offset to a claim

against it;

4. Settles the account of an

executor, administrator, trustee

or guardian;

5. Constitutes, in the proceedings

relating to the settlement of the

estate of a deceased person, or

the administration of a trustee

or guardian, a final

determination in the lower court

of the rights of the party

appealing

appealing, except that no appeal

shall be allowed from the

appointment of a special

administrator; and

6. Is the final order or judgment

rendered in the case, and affects

the substantial rights of the

person appealing, unless it be an

order granting or denying a

motion for a new trial or for

reconsideration.

ORDERS THAT ARE NOT APPEALABLE 1. Order directing administrator to

take action to recover amount

due to the estate;

2. Order made in administration

proceedings relating to inclusion

or exclusion of items of property

in the inventory of executor or

administrator;

3. Order appointing special

administrator;

4. Order granting or denying a

motion for new trial or for

reconsideration.

APPEAL IN ORDINARY CIVIL

ACTION

APPEAL IN SPECIAL

PROCEEDINGS

PERIOD:

15 days

30 days

REQUIREMENTS

Notice of Appeal and

Docket Fees

Record on Appeal

and Docket Fees

No extension

May be extended on

meritorious grounds






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VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

SPECIAL PROCEEDING

VENUE

JURISDICTION

1. Settlement of the Estate

Resident of the Decedent or

if the decedent is a non-

resident, place where he

had an estate

MTC if the gross value of the

estate does not exceed P200,000,

or P400,000 in Metro Manila

RTC if the gross value of the

estate exceeds the above amounts

2. Escheat

a. Person dies intestate

leaving no heir – Resident of

the decedent or if non-

resident, in the place where

he had an estate.

RTC

b. Reversion – Where the

land lies in whole or in part

RTC

c. Unclaimed Balance –

Where the dormant deposits

are located

RTC

3. Appointment of

Guardians

Where the minor or

incompetent resides

Family Court (in case of Minors)

RTC (Regular courts—in cases

other than minors)

4. Appointment of

Trustees

Where the will was allowed

or where the property or

portion thereof affected by

the trust is situated

RTC

5. Adoption

Where the adopter resides

Family Court

6. Rescission of Adoption

Where the adoptee resides

Family Court

7. 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

8. Change of Name

Where petitioner resides

RTC

9. Appointment of

Representative of

Absentee/Declaration of

Absence

Where the absentee resided

before his disappearance

RTC

10. Cancellation/Correction

of Entries in the Civil

Registries

Where the corresponding

Civil Registry is located

RTC






Special


Documents

SpecProc Beda Notes