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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
SPECIAL PROCEEDINGS
Notes by: Paul Lemuel E. Chavez
SPECIAL PROCEEDINGS NOTES
Preminary Considerations
Special Proceedings
-Defined by R1 S4 as a remedy by which a party seeks to establish a status, a right, or a particular fact
-
1970 Bar: Distinguish Special Proceedings from Criminal Procedure and Ordinary Civil Action
Special Criminal Ordinary
Proceedings Procedure Civil Action
A remedy by The State A party sues
which a party prosecutes a another for
seeks to person for an the
establish a act or enforcement
status, a right, omission or protection
or a particular punishable by of a right, or
fact law the prevention
or redress of a
A proceeding wrong
wherein a
person is
prosecuted by
the State for
acts or
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omissions
committed in
violation of
penal laws,
and to impose
the
corresponding
penalty
provided for
by penal laws
Governed by Governed by Governed by
special rules, the Revised the rules for
and in the Rules of ordinary civil
absence of Criminal actions
special Procedure
provisions,
the rules
provided for
in ordinary
actions shall
be, as far as
practicable,
apply
suppletory
May involve Involves the Involves 2 or
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only one party State against more parties
the
accused
Initiated by Initiated by Initiated by
petition complaint (but complaint
filed in court
by
Information)
Except Based on an Based on a
Habeas act or cause of
Corpus, NOT omission action
based on a punishable by
cause of law
action
Sources of Special Proceedings:
-R72-109
-1987 Constitution
-RA7160 Katarungang Pambarangay Law
-BP 129 or the Judiciary Reorganization Act of 1980
-RA 7691 or An Act Expanding the Jurisdiction of the MTC (particularly those with respect to gross estate
of the deceased)
-A8 S5 P5, 1985 Constitution
-Administrative Circulars issued by SC
o AM 3-2-5- Guardianship of Minors
o AM 3-4-4- Custody of Minors/HC
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o AM 8-1-16- Habeas Data
oAM 7-9-12- Amparo
-RA 9048 or Correction of Entries in the Civil Registry
-RA 8042
-Jurisprudence
-RA 9262
CONSTITUTIONAL PROVISIONS RELATING TO
SPECIAL PROCEEDINGS
A3 S1
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
SPECIAL PROCEEDINGS
Notes by: Paul Lemuel E. Chavez
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
A8 S1
Judicial Power shall be vested in 1 Supreme Court and in all other courts as may be established by law.
Judicial Power includes the duty of the courts to settle actual controversies involving rights which are
legally demandable or enforceable, and to determine whether or not there is grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.
A8 S5 P5
The Supreme Court shall promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the IBP, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial
bodies shall remain effective unless disapproved by the Supreme Court.
A6 S30
No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
A7 S18 P3
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision within 30 days from its filing.
A8 S2
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the variouscourts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5
thereof
No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its
members.
A8 S5
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The Supreme Court shall have the following powers:
1.exercise original jurisdiction over cases affecting ambassadors, public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus
2.review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may
provide, final judgments and orders of lower courts in:
a.all cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
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Notes by: Paul Lemuel E. Chavez
b.all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto
c.All cases in which the jurisdiction of the lower court is in issue
d.All criminal cases in which the penalty involved is reclusion perpetua or higher
e.All cases in which only an error or question of law is involved
(Others) :
A2 S11
The state values the dignity of every human person and guarantees full respect for human rights.
A2 S12
The state recognizes the sanctity of the family and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and moral character shall receive the support of the government.
(A3 S13
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required. [?])
A3 S15
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion
or when public safety requires it.
A15 S1
The state recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.
A15 S2
Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.
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A15 S3
The State shall defend:
1.the rights of spouses to found a family in accordance with their religious convictions and the demand
of responsible parenthood
2.rights of children to assistance including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
SPECIAL PROCEEDINGS
Notes by: Paul Lemuel E. Chavez
A15 S4
The family has the duty to care for its elderly members but the state may also do so through just
program of social security.
What are the special proceedings?
R72 S1- SEGTARHHCVJCDC
1.Settlement of estate of deceased persons
2.Escheat
3.Guardianship and custody of minors
4.Trustees
5.Adoption
6.Rescission and revocation of adoption
7.Hospitalization of insane persons
8.Habeas corpus
9.Change of name
10.Voluntary dissolution of corporations
11.Judicial approval of voluntary recognition of minor natural children
12.Constitution of the family home
13.Declaration of absence and death
14.Cancellation of correction of entries in the civil registry
EXCLUSIVE?! NO!!!
Certain proceedings not mentioned are considered as special proceedings, such as:
1.Declaration of presumptive death
2.Annulment / nullity of marriage
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3.Naturalization proceedings
4.Liquidation proceedings
5.Corporate rehabilitation
6.Recognition and enforcement of arbitration proceedings
7.Vacation, setting aside, correction or modification of an arbitral award
8.Any application with a court for arbitration assistance and supervision
9.Writ of amparo
10.Writ of habeas data
11.Correction of clerical errors
12.Proceeding allowing illegitimate children to use the surname of their father
13.Declaration of nullity or annulment of marriage
14.Declaration of legal separation
15.Commitment of children
Why?
Because these are proceedings tending to establish a status, a right, or a particular fact
Nature of Special Proceedings:
IN REM!
-Binding upon the whole world
oNote that most special proceedings require publication
Note further that Special Proceedings are not Special Civil Actions, though both are governed by own
rules
Special Proceedings are governed by own rules, EXCEPT:
-When there are no applicable provisions in
the rules, rules on Civil Procedure / Ordinary Civil Actions apply only in a suppletory character
What rule governs special proceedings?
Rule 72-109, Rules of Court
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Exception:
R72 S2
In the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as
practicable, applicable in special proceedings
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
SPECIAL PROCEEDINGS
Notes by: Paul Lemuel E. Chavez
(aka Rules on Ordinary Civil Actions apply suppletorily to Special Proceedings)
-Special Proceedings has its own rules, if there are no applicable provisions, apply Rules on Ordinary Civil
Actions
What are those specific provisions in Civil Procedure which also apply to special proceedings?
1.Rule 4- Rules on Venue
Can the RTC-Manila entertain petition for probate of the will if the deceased died in Quezon City?
YES!!! Because the rules on venue can be waived. Failure to object to improper venue is tantamount to
waiver.
(Special Proceedings in relation to Rule 4)
2.Rule 7 S1- Parts of a Pleading
Note that all of special proceedings are commenced by way of petition
A petition is a pleading
Hence, the need to comply with Sections 4 and 5 of Rule 7
-Verification
-Certification against non forum shopping
Basis: Rule 72 S2
3.Rule 16- Motion to Dismiss
YES!
Basis: Rule 72 S2
4.R33- Demurrer to Evidence
Settlement of Estate of the Deceased, being adversarial in character, is demurrer to evidence allowed?
YES!!!
Basis: Rule 72 S2, the rules on civil procedure apply to special proceedings in a suppletory character.
Jurisdiction
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-Power or authority of the court to hear, decide a case, and implement its decisions
IF the court has no jurisdiction over special proceedings,
-Motion to dismiss can be filed for lack of jurisdiction over the subject matter
o Note, however, that the dismissal is without prejudice
What then will be your remedy?
Refile the petition, as provided for in Rule 16
Can the court dismiss the petition motu proprio for lack of certification against forum shopping?
NO!!!
A motion to that effect needs to be filed, for failure to comply with condition precedent
(S)
SETTLEMENT OF THE ESTATE OF THE DECEASED (RULE 73-90)
What is ESTATE?
An estate is an artificial being created by operation of law which will undertake distribution of
properties left by the deceased.
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
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Notes by: Paul Lemuel E. Chavez
-Distribution, disposition, management of properties left by deceased
-Being a juridical being, it can sue and be sued
o Juridical being with entity separate and distinct from the decedent
RA7160- Barangay Conciliation Law / Katarungang
Pambarangay
For purposes of settlement of estate of the deceased, there is no need to refer the case to the
Katarungang Barangay first! (vda de Borromeo vs Pogoy)
Juridical persons such as estate are not covered by Barangay Conciliation proceedings.
NOTE: Trusteeship and Guardianship does not need to pass Barangay
SETTLEMENT OF ESTATE OF THE DECEASED
Definition:
Settlement of Estate of the Deceased is a conciliation proceeding where the property of the deceased
would be distributed to the provisions of
law or the will of the .
Personal and Real- Totality of Estate of Deceased (GROSS VALUE- value before deductions)
Jurisdiction (BP129 RA7691): Depends upon the gross value of the estate of the deceasedvalueof the
estate prior to deductions of debts, etc
If the gross value of the estate of the deceased exceeds 300k OMM or 400k MM, RTC has jurisdiction
If the gross value of estate of the deceased does not exceed 300k OMM or 400k MM, MTC / MuTC /
MCTC, MuTC in Cities has jurisdiction
1997 Bar: The gross estate of the deceased is 200k, the property is in Pampanga. Determine the
jurisdiction and the venue.
Because the gross value of the estate of the deceased does not exceed 300k OMM, MTC has jurisdiction
(Basis: BP 129 as amended by RA 7691)
Note however, that when it comes to venue, the question is misleading (Property located in Pampanga).
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To answer the question, here goes: As to venue, my answer would depend on whether the decedent is a
resident or non-resident of the Philippines. If the decedent is a resident of the Philippines, whether a
citizen or an alien, the venue shall be the last actual residence of decedent. If the decedent is a non-
resident, venue shall be the place where the estate / property is located. Hence, in the case at bar, if
decedent is a resident, the venue shall be the actual residence of the deceased (pwede Pampanga,
pwede hindi, depende sa facts), but if a non- resident, then Pampanga is the proper venue because that
is where his estate is located.
If filed in the court not with jurisdiction, file motion to dismiss on the ground of lack of jurisdiction over
the subject matter
Venue:
R73 S1
If the decedent is:
-an inhabitant of the Philippines at the time of his death,
o whether a citizen or an alien,
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
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Notes by: Paul Lemuel E. Chavez
his will shall be proved,
or letters of administration granted,
and his estate settled,
in the COURT in the province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country,
-the court of any province in which he had estate.
NOTE: Venue is WAIVABLE
Modes of Settlement of Estate of the deceased:
1.JUDICIAL or EXTRAJUDICIAL
-Judicial- with court intervention
-Extrajudicial- without court intervention
2.PROBATE or NON PROBATE
-Probate- there is a need to prove the will, judicially (or administratively)?
-No need to prove will / intestate testate succession
Kinds of Settlement of Estate of the Deceased:
A. Adjudication of Sole Heirship (R74 S1)
-Extrajudicial settlement, non-probate
-Adjudicated unto himself the entire estate
Requirements:
a.No will / intestate
b.No outstanding debts
c.One surviving heir / sole heir
d.Affidavit of adjudication of sole heirship filed in Office of Register of Deeds
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e.File bond equivalent to the value of personal property or lien in favour of creditors in case of real
property
f.Publication in a newspaper of general circulation once a week for 3 consecutive weeks
Note: In the 2006 Bar Examinations, in legal forms and practical exercises, this question was asked:
Prepare a Draft of Adjudication of Sole Heirship
To answer, follow the contents of Rule 74, in a PUBLIC INSTRUMENT
What is a NEWSPAPER OF GENERAL CIRCULATION?
(Basa vs Mercado)
1.Made within the Courts Jurisdiction
2.Published at regular intervals for determination of news and general information
3.with bona fide subscription list of paying subscribers
4.not devoted to the interest of a particular class
Once a week for 3 consecutive weeks- NOT NECESSARILY 21 days, rather, it is once a week, 3 weeks
consecutively- THIS IS WHAT CONFERS JURISDICTION UPON THE COURT
Remedies of those aggrieved by extrajudicial settlement:
-within 2 years, file a claim against the bond or the real estate
-rescission in case of preterition of compulsory heir tainted with Bad Faith
-reconveyance of real property
-action to annul deed of EJ settlement on the ground of fraud
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
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-reconveyance based on implied or constructive trust
-ordinary action against distributees, but not against the bond
When there are 2 or more Heirs,
B.Extrajudicial Settlement of Estate of the Deceased (R74 S1)
Done by means of CONTRACT between the surviving heirs
EXTRAJUDICIAL SETTLEMENT OF ESTATE OF THE
DECEASED
Know all men by these presents:
-----------------------------
-----------------------------
Property:
No.............
S1 to S4 R74
-2 years for those unduly deprived of the estate to file...
-Minors represented by Guardian ad litem for purposes of distribution
o Subject to Rule 74 S4, after settlement and distribution
Requirements: (R74 S1)
a.Decedent died intestate
b.No outstanding debts
c.Heirs are all of age, or if minors, are properly represented
d.Public instrument (notarized contract)
e.Registration with registry of deeds where property is located
f.Publication once a week for 3 consecutive weeks in a newspaper of general circulation
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g.Bond in case of personal property left by decedent who will answer for claim of those unduly deprived
h.Registration of said affidavit of agreement
Protections accorded to those unduly deprived:
a.Publication
b.Bond- can go after it
c.File petition for surrender of your share as far as estate of deceased is concerned
C.Settlement of Estate of the Deceased of Small Value
a.Gross value of estate of the deceased does not exceed 10k
b.Summary judicial adjudication
c.Applies to testate or intestate
d.Available even if there are debts
e.Filed by petition containing allegations of gross value of estate upon hearing not less than 1 months
nor higher than 3 months from the date of last publication or notice
f.Publication in a newspaper of general circulation once a week for 3 consecutive weeks
g.Notice to interested persons
h.Filing of a bond in an amount fixed by court
i.Court order is recorded in the Office of the Clerk of court
j.Order of partition or award is recorded in the proper Registry Office
Before, filed with RTC of last residence
But NOW, due to amendments brought by RA 7691, jurisdiction is now with MTC- PURSUANT to the
RULE ON SMALL CLAIMS (Summary)
Publication- 5k
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Notes by: Paul Lemuel E. Chavez
Lawyer- 5k
Appearance fee- 2k
-Parang kulang pa?!
Liabilities of Distributees of Estate (Rule 74 S4)
-Heir or other person unduly deprived of lawful participation in the estate
-Outstanding debts which have not been paid
-Heir or other person is unlawfully deprived of lawful participation payable in money
Properties subject to settlement of estate of the deceased:
REAL AND PERSONAL PROPERTY
-Real property- A415, NCC
-Personal property- A416-417, NCC
o Movables
o Credits
o Bonds
o Deposits
Settlement of Estate of the Deceased
1.Probate of the will- with will
-With necessity of proving, imprescriptible
2.Intestate Estate Proceedings- without will
Jurisdiction- depends on the gross value of the estate of the deceased
Exceeds 300k OMM 400k MM- RTC
Does not exceed 300k OMM 400k MM- MTC
Venue- last residence of decedent, or if a non resident, then where estate may be found
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Last Residence- actual residence
-Kung san permanent
-No 2 residences at the same time
Nature of Probate Proceedings:
a.IN REM- binds whole world, publication as a requirement
Why the need to probate will?
-For reasons of public policy
oR75 S1, stating that no will shall pass either real or personal property unless it is proved and allowed in
the proper court
IF you divide a property outside of probate proceedings, and there is a will, the division is VOID
b.Imprescriptible
In case of intestate estate proceedings, partition, basta kapag may lumabas na nag-iwan pala ng last will
and testament ang decedent, then the probate proceedings shall prevail, and the former shall be held in
abeyance
What is a WILL?
-Formal written disposition of a person allowing for the distribution of his properties and rights
according to his intention, to take effect after his death
Understand the concept in relation to the following:
-Declaratory relief
-Parol evidence rule
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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in
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Notes by: Paul Lemuel E. Chavez
oIncludes WILLS- the will itself only is the one available, no modification as far as real estate is
concerned
Probate of a will
2 kinds of Will
1.Notarial Will
2.Holographic Will
Obligation of executor to deliver the same 20 days after such death
If he refuses, administrator with a will annexed shall be appointed
(NOTE: NCC provisions)
Hence, failure to comply with NCC requirement is a ground for disallowance of a will
Example: when executed and attested not in conformity of the requisites provided for by law
PROCEDURAL REQUIREMENTS:
I.Custodian to deliver the will to the court within 20 days after knowing of testators death (75 2)
II.20 days after knowledge of death or knowledge of being named executor, executor to present will to
the court having jurisdiction (75 3)
III.Petition for allowance filed (76 1) see below, WHO MAY FILE
IV.
Contents of Petition:
(76 2)
-Jurisdictional facts
-Names, ages, residents of heirs, devisees, legatees
-Probative value and character of the estate
-Name of the person for whom letters are prayed
-Name of the person having custody of the will if not yet delivered to the court
V.Court to fix time and place for proving the will
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VI. Notice to be published 3 weeks
successively (76 3)
VII.
Notice for time and place for
proving
the will to heirs, legatees, devisees
of
testator, executor if not the
petitioner,
co executors not petitioning 20
days
before hearing by mail or 10 days
by
personal service
VIII. Prove Due execution of the Will
-The will was executed in compliance with formalities
-Testator was of sound and disposing mind at the time of making the will
-No vitiation of consent by duress, fear, threats
-Not procured by undue and improper influence or pressure on the part of the beneficiary or of some
other person for his benefit
-Signature of testator is genuine, not procured by fraud or trick, testator
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Notes by: Paul Lemuel E. Chavez
intended that what he signed is his last
will
and testatement
IX. Hearing under the following rules: (see:
Rule 76)
Uncontested notarial will
-At least one subscribing witness to testify that the will is executed as required by law
The testimony of at least 1 subscribing witness only if such witness testifies that the will is executed as is
required by law
when none of the subscribing witnesses resides in the province but the deposition of one or more of
them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a
photographic copy of the will to be made and to be presented to the witnesses on his examination, who
may be asked the same questions with respect to it, and to the handwriting of the testator and others,
as would be pertinent and competent if the original will were present
-Outside province, deposition (R76 S7)
if the subscribing witnesses are dead, insane, or none of them resides in the Philippines, the court may
admit the testimony of other witnesses to prove the sanity of the testator and the due execution of the
will. And as evidence of execution of the will, it may admit proof of the handwriting of the testator and
of the subscribing witnesses or of any of them
-Dead, etc, other witnesses can testify (R76 S8)
Uncontested holographic will
-1 subscribing witness who knows the handwriting and signature of testator
-If none, expert testimony may be taken
at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the
signature and the will are in the testators handwriting
in the absence of such witness, and if the court deems necessary, expert witness may be resorted to
Contested notarial will
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-All subscribing witnesses plus notary public
-If absent, sufficiently show as far by testimony
-If all are dead, etc, other witness or expert witness may be availed or presented (Expert witness as
exception to opinion Rule under Rule 130)
all subscribing witnesses and the notary public, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any one of them must be shown to the
court
if all or some of the witnesses are present in the Philippines but outside the province where the will has
been filed, their deposition must be taken
if any or all of the witnesses testify against the due execution of the will or do not remember having
attested to it, or are of doubtful credibility, the will may be allowed if the court is satisfied from the
testimony of other witnesses and all the evidence presented that the will was executed and attested in
the manner required by law
Contested holographic will
-3 witnesses who knows the handwriting and signature of testator
o IMPT: prove signature- or else, ground for disallowance of a will
-If none, expert testimony may be taken
Hence, pag 2 lang, e di petition denied!
allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will
and the signature are in the handwriting of the testator
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in the absence of any competent witness, and if the court deems it necessary, expert testimony may be
resorted to
Notarial Will
-With attestation clause
oNon compliance therewith, patay ka... may problema ka sa petition
Who may file petition for probate of a will?
1.Testator himself (in case of ante mortem probate)
2.Executor
3.Devisee
4.Legatee
5.Any person interested in a will
6.Any creditor
Filed before MTC or RTC
IF testator is the one who filed, what is the quantum of proof required?
-Testimony niya?
o Pwede
If a will is probated, it is valid as far as due execution is concerned.
Once a decision is made, it is conclusive, and can no longer be questioned
What are the powers of the probate court?
1.Distribute shares
2.Determine who are the legal heirs
3.Issue warrants and processes to secure attendance of witnesses
4.Determine and rule upon issues relating to settlement of the estate, such as administration,
liquidation, and distribution of the estate
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5.Determine the following:
a.Who are the heirs of decedent
b.Recognition of a natural child
c.Validity of disinheritance effected by testator
d.Status of a woman who claims to be the lawful wife of decedent
e.Validity of waiver of hereditary heirs
f.Status of each heir
g.Whatever property in the inventory is conjugal or exclusive property of deceased spouse
h.Matters incidental or collateral to the settlement and distribution of the estate
As a general rule, the probate court has no power to determine issues of ownership, except: (non
conclusive/Disputable Presumption under Rule 131)
a.For including property in inventory without prejudice to final determination in a separate action
b.When all parties are heirs and they submit issue of ownership to the probate court provided that the
rights of the parties are not prejudiced
c.Question is one of collation or advancement
d.When the parties consent to assumption of jurisdiction by the probate court and the rights of third
parties are not impaired
To Determine the following questions:
a.Who are the heirs of decedent
b.Recognition of a natural child
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c.Validity of disinheritance effected by testator
d.Status of a woman who claims to be the lawful wife of decedent
e.Validity of waiver of hereditary heirs
f.Status of each heir
g.Whatever property in the inventory is conjugal or exclusive property of deceased spouse
h.Matters incidental or collateral to the settlement and distribution of the estate
Grounds for disallowance of a will (important: lumalabas sa Bar):
Rule 76 S9
1.if the will is not executed and attested as required by law
2.if the testator is insane or otherwise mentally incapable to make a will
3.if the will was executed under duress or under the influence of fear or threats
4.if the will was procured by undue and improper influence, on the part of the beneficiary or of some
other person for his benefit
5.if the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature
In case of lost or destroyed will, no probate, except as provided in R76 S6: (note this, lumalabas to sa
bar) SECONDARY EVIDENCE as exception to the Best Evidence Rule
1.Execution and validity of the will by the testator be established
2.That the will is proven to have been in existence at the time of the death of testator or is shown to
have been accidently
or fraudulently destroyed during the lifetime of testator without his knowledge
3.Its provisions are clearly and distinctly proved by at least 2 credible witnesses
How to / Who can prove due execution, genuiness?
Pursuant to rules of evidence:
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1.By persons or witnesses present when executed
2.By notary public
3.By any person present during execution of the will
NOTE that proving lost or destroyed will is exception to best evidence rule
-Lost or destroyed will in accordance with R130 S3, prohibiting presentation of secondary evidence
A petition for probate of a will is an initiatory pleading
If the parties subsequently file a petition for letters testamentary or of administration, is it considered as
initiatory pleading?
NO! It is considered as continuation of probate of a will, hence, there is no need for petition against non
forum shopping
Is oral partition valid between surviving heirs?
As amongst the heirs, valid amongst themselves. But in order to bind third persons, for purposes of
registration, the partition must be in a public
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instrument to be valid as to registration. If not in a public instrument, then not valid as to registration.
Probate of a will,
-There is need for appointment of executor, if with a will
-If no will, then administrator
Can there be administrator in case there is a will?
YES!
In 2 instances:
-When executor refused to accept the trust, or
-The executor is disqualified
Called, ADMINISTRATOR WITH A WILL ANNEXED
Who can be appointed executor or administrator?
Order of preference in appointment of regular administrator or executor:
1.Surviving spouse
2.Next of kin
3.Any person interested in the will, or creditor
4.Any person the court may appoint
Remedies in case of adverse decisions in:
Appointment of regular administrator- APPEAL
-Because appointment is final and executory
Appointment of special administrator- CERTIORARI RULE 65
-Because appointment is interlocutory in character
REPROBATE OF A WILL (note: lumalabas to sa bar)
Rule 77
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-Will probated abroad is not automatically allowed in the Philippines
o Hence, the need for petition for reprobate of a will
How to prove?
-Copy of the will duly probated by court of competent jurisdiction in the foreign country
-Duly allege the law on probate proceedings in the foreign country, allege in the body of the petition for
reprobate, duly authenticated
Requisites:
1.Due execution of the will in accordance with foreign laws
2.Testator is domiciled in a foreign country
3.Will is admitted to probate in such country
4.Foreign court or tribunal is a probate court
5.Law of the foreign country on procedure and allowance of the will
R77 in relation to Rule 39 S48 (Effect of foreign judgment) and Processual Presumption
A probate of will abroad is considered as foreign judgment, hence, the need for petition for reprobate to
be considered binding and enforceable upon our courts
Requisites to be appointed:
EXECUTOR: (Rule 78 S4)
-Named in the will
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-The will is proved and allowed
-Testator is competent, accepts the trust, and gives bond
ADMINISTRATOR (Rule 79 S2)
-Competent
-Appointed by the court
-Files petition for letters of administrationo Jurisdictional facts
o Names, ages, residences of heirs, creditors
o Probative value and character of the estate
o Name of person for whom letters are prayed
Powers of E or RA (R84 S1-3)
-Have access to, examine and take copies of books and papers relating to partnership in case of
deceased partner
-Examine and make invoices of property belonging to the partnership in case of deceased partner
-Maintain in tenantable repairs, houses, other structures and fences and deliver the same in such repair
to heirs or devisees when instructed to do so by the court
-Make improvement on properties under administration with necessary court approval except for
necessary repairs
-Possess and manage the estate when necessary for payment of debts, for payment of expenses of
administration
As far as Executor or REGULAR ADMINISTRATOR is concerned (N/A to special administrator, who are
disqualified to serve as such? (R78 S1)
To question, file comment or opposition to the petition, if denied, then as far as they are concerned,
decision is final and executory, hence, APPEAL is the proper remedy
1.Minor
2.Non resident
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3.One who in the opinion of the court is unable to exercise the duties of a trust by reason of:
a.Drunkenness
b.Improvidence
c.Want of understanding
d.Want of integrity
e.Conviction of an offense involving moral turpitude
So, lasenggo- disqualified
Drug addict- disqualified (Bakit? Hmmm... pwedeng pumasok to sa improvidence ah... )
Convicted of dishonesty, or with issues about it- disqualified
Convicted of crime INVOLVING MORAL TURPITUDE
What is moral turpitude?
-an act of baseness, vileness, depravity in the private and social duties which a man owes his fellow
men, to society in general, contrary to the accepted and customary rule of right and duty between man
and woman or conduct contrary to justice, honesty, modesty, or good morals (Herrera, p.81)
o basta act contrary to justice, honesty, modesty, or good morals
What are crimes involving moral turpitude?
HINDI LAHAT AH!
Key: basta may PANLOLOKONG INVOLVED (kasi to be Executor or Administrator, involves position of
trust and confidence)
1.estafa
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2.falsification of public documents
3.perjury
Rape? NO!!!! Ano bang kinalaman ng rape sa pagiging executor or administrator ng estate????!!!
NOTE HOWEVER, na above disqualifications apply only to appointment of REGULAR ADMINISTRATOR,
not to appointment of special administrator.
Removal of Executor or Administrator, GROUNDS: (Rule 82 S2)
-neglect to render accounts within 1 year and when required by the court
-neglect to settle the estate according to the Rules
-neglect to perform order or judgment of the court or duty provided by Rules of Court
-absconding
-insanity, incapability, or unsuitability of discharging trust
NOT ABSOLUTE!
Other grounds:
1.Death
2.Resignation, etc
Special Administrator
Instances when appointed:
1.delay in appointment of executor or administrator
2.delay in appeals in main case
3.when the executor or regular administrator is claimant of the estate he represents
(in case of opposition on appointment/appointment of special administrator, if denied, certiorari is
proper remedy, because order of appointment is interlocutory [R65 rel to R41 S1])
Powers of SA: (80 2)
-possess and charge of goods, chattels, rights, credits, estate
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-preserve the properties
-commence and maintain suits
-sell only perishable properties or properties ordered sold by court
-pay debts only as may be ordered by the court
-submit inventory and render accounting
Requisites in case of Executor or Administrator:
1.File Bond- required
Is there any instance when executor or administrator is exempt from filing bond?
YES!
-When provided by testator in his last will and testament that filing of bond is not needed
Executor or administrator was appointed, here comes heir, now, can the heir file petition for
appointment of his person as administrator?
NO!!!! Unless there is ground for removal of executor or administrator, di pwede basta mag file
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yung heir ng petition for his appointment as administrator
In case of Adverse Decision- appeal from the order of appointment (pag regular administrator)
Rule 83 INVENTORIES
To be made within not mandatory period of 3 mos from the grant of letters testamentary or letters of
administration (S1)
Articles not subject: (S2)
1.wearing apparel of surviving spouse and minor children
2.marriage bed and bedding
3.provisions and other articles as will necessarily be consumed in subsistence of the family of the
deceased
Question on rentals. Can it be filed by mere motion?
NO!!! Executor or administrator must file action against lessee by way of independent action
-because property is not yet included in
estate of deceased
o Reason why file a claim against 3rdperson by Executor orAdministrator
Can Executor or Administrator be made to testify to those matters relating to executor by deceased
before his death?
(Related to Rules on Evidence)
NO!!!! Because disqualified to testify
Except:
1.When executor is cross examined on those matters
Principle of Dead Mans Statute (Rule 130 S23)- reason for disqualification
REQUISITES (Rule 130 S23):
-Witness is a
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o party or
oassignor of a party
to a case of persons in whose behalf a case is prosecuted
-action is against
oexecutor or
o administrator or
oother representative of deceased person or
operson of unsound mind
-subject matter of the action is
oclaim or
odemand against
estate of deceased person or
against person of unsound mind
-testimony refers to
oany matter of fact which occurred before the death of such deceased person or before such person of
unsound mind
Rationale: declarant cannot be cross examined, lips are sealed forever by death
Purpose: designed to close lips of party plaintiff when death permanently closed lips of party defendant
in order to remove from surviving party the temptation to give false testimony and possibility of
fictitious claims against deceased
NOTE: Waivable
If testified to, with right to cross examine
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If not, then waived
Principle of Statute of Non Claims
-Claim by a person against the estate of deceased which should be made not less than 6 months nor
more than 12 months since first publication of allowance of the will
o Letters testamentary issued, first publication
After such order, allow claimants to file, or else, barred forever, EXCEPT:
-Belated claims (not claim not filed within original period fixed by court, extended for not higher than 1
month from order allowing belated claims)
Claims against the Estate: (relate to Rule 3 S16, Rule 3 S20if dismissed, file under Rule 86)
1.Claim which survives death
a.Arising from contract, express or implied
b.Note S20 R3 in relation to Special Proceedings
c.May be claimed against estate of the deceased
2.Funeral expenses
3.Expenses for last illness of decedent
4.R111 S4- death after arraignment (interrelate the aforesaid provisions)
a.Aka LIABILITY ARISING FROM DELICT
Criminal action- impliedly instituted civil action (Rule 87 in relation to Rule 111, death before
arraignment/after arraignment)
Specific claims against estate (Rule 86 S5):
-For recovery of money not secured by him
-Money claims, debts insured by decedent during lifetime arising from contract express or implied, due
or not due, contingent or not
-Claims for funeral expenses
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-Claims for last illness
-Judgment of money against decedent
-Claims for taxes
-Absolute claims
-Contingent claims
Question regarding the person who died in accident, while yung nabangga niya suffered injuries. What is
the remedy of the latter?
File suit for damages, contingent claim against the estate para not barred by statute of non claims
How to file claim against estate: (Rule 86 S9)
1.File claim before clerk of court, supported by vouchers, receipts, judgment of the case
2.Serve copy thereof on executor or administrator
3.Duly supported by affidavit stating amount due and fact of no offsets
4.If claim is not due or contingent, accompanied by affidavit stating particulars
Note in relation to R68 aka Foreclosure of mortgage
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Remedies of Mortgagee after death of mortgagor (Rule 86 S7):
3 remedies, avail 1, exclude others na
1.Abandon or waive the security and prosecute his claim against the estate and share in the general
distribution of the assets of the estate
2.Foreclose his mortgage or realize upon his security by action in court making the executor or
administrator a party defendant and if there is a claim for deficiency, he may file a contingent claim
against the estate within the statute of non claims
3.Rely solely on the mortgage and foreclose the same at any time within the period of the statute of
limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other
assets of the estate
In short,
1.Abandon mortgage, prosecute claim against estate
2.Rely solely on mortgage and foreclose any time within period of statute of limitations
3.Foreclose mortgage, file contingent claim against estate of deceased to be able to claim deficiency
a.Pag foreclose lang, and no contingent claim
i.BARRED FROM CLAIMING DEFICIENCY! dapat, foreclose plus file contingent claim to be entitled to
deficiency
-Foreclose
-Contingent claim
oBoth must be present to be able to claim deficiency
oPay wala, wala!
Pag foreclose lang
Pag contingent claim lang
Actions against Estate of the deceased (87 S1)
-To recover real property or interest therein from the estate
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-To enforce lien
-Recovery of damages for injury to petitioner or property
-For revival of money judgment
-Actions for causes which survive
How to file? Requirements (Rule 87 S10)
-Deficiency of assets in hands of E or A
-Deceased had made or attempted to make fraudulent conveyance
-Subject to would be liable to attachment on his lifetime
-E or A showed no desire to file action or fail to institute the same within a reasonable time
-With leave of court
-Bond filed
-Action in the name of executor or administrator
Hence, look at the problem:
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Actions to be filed by executor or administrator against third person for estate of deceased:
-Person suspected of having conveyed property, ask third person to appear before it and examine him
(87 6)
-To recover property, rights, interests, debts, where there is deficiency or assets in the hands of E or A
(87 9)
-Ask third person with portion of estate of deceased to render full accounting of money, goods, chattel,
etc
Conditions for payment of Claims (Rule 88)
-Order by court of sale or exchange, proceeds to satisfy debts and expenses
-Exhaust personal property of deceased, then the realty, in the following instances:
o Personal estate not sufficient for that purpose
oSale of personalty to the detriment of participants
Case filed against Executor or administrator in another court, and without consent of the probate court,
the executor or administrator entered into compromise agreement. Pwede?
NO!!!
-File claim against estate of deceased muna, and that is the only time that the compromise can be
approved by the probate court
Notice of lis pendens
-Notice with the purpose of notifying subsequent buyers in case of title to or possession of real property
Is notice of lis pendens needed to secure?
NO NEED!!!
-Property is already included in the settlement, secured by probate court
Sale, Encumbrance of Property of Estate: (Rule 89)-
(no property of estate may be sold without court approval)
1.Petition before the court by E or A
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2.Notice to heirs, devisees, legatees
3.Court approval of sale of property of estate a. Pag wala, bawal
Hence, Executor or Administrator cannot just enter into compromise agreements
4.Court order to sell realty to pay debts and legacies
NOTE: Creditors can stop the sale by giving bond fixed by the court to pay debts and legacies
When sale of property of decedent may be effected/instances/requirements: (Rule 89)
-Personal estate (S1)
o Pay debts and expenses of administration
o Pay legacies
oCover expenses for preservation of the estate
-Real Estate (S2)
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o Personal estate insufficient to pay obligations
oSale of personal estate may injure business
oTestator has not made sufficient provisions for payment of debts, legacies, expenses
oDeceased is under contract to deed real property to beneficiaries
-(S4)
oWhen beneficial to heirs, devisees, legatees, interested persons
oEstate of deceased in foreign country is not sufficient to pay debts and expenses
-(S6)
oEstate acquired on execution or foreclosure sale when beneficial to heirs, devisees, legatees, other
interested persons
Executor or administrator, in case of sale, is required to file written petition setting forth: (R89 S7)
-Debts due from settlement
-Expenses of administration
-Legacies
-Value of personal estate
-Situation of estate
-Other facts showing sale as necessary or beneficial
Requirement for advanced distribution of property:
Rule 90 S1
Distributee to give bond conditioned for payment of debts, funeral expenses, expenses for
administration, allowance of widow, inheritance tax
(E)
ESCHEAT (Rule 91)
What is escheat?
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-Proceedings whereby a decedent who died intestate (without will), and without heirs, but left property,
the latter shall become property of the estate upon his death
Is it the same as reversion (R91 S5)?
-NO
oThe essence, however, is the same, but, reversion is filed by state to recover property of a person
unlawfully acquired in violation of the Constitution, AMLA, Plunder Law, or the Anti Graft law
R91 S1- escheat
By verified petition filed by Sol Gen or Representative, stating the ff matters:
-Decedent died intestate
-No heirs or persons by law entitled to the same
-Decedent left real or personal properties
-Decedent is a resident of the province of last residence or if a non resident, has property in the courts
jurisdiction
Rule 91 S2
Hearing to be conducted not higher than 6 months from entry of order, copy of order to be published
once a week for 6 consecutive weeks in a newspaper of general circulation
Rule 91 S3
Effects of declaration of Escheat:
Resident decedent
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-Personal estate to be assigned to municipality or city of last residence
-Real estate to be assigned to municipality or city where it may be found
Non resident decedent
-Whole estate to be assigned to municipality or city where found, for benefit of public schools and
charitable institutions and centers in said cities or municipalities
NOTE: Expropriation- different from escheat and revesion (See notes on civil procedure)
Jurisdiction / Venue of Escheat proceedings:
RTC or MTC (depends upon gross value of the estate) of the place where the decedent last resided
before his death or if a non resident, where his estate is situated (Rule 91 S1)
Escheat Expropriation Reversion
Decedent died Payment of just Concerns
without a will, compensation property for
no heirs, but public use
with property
Remedies of heir unlawfully deprived (file within 5 years from judgment or else, forever barred):
1.Recover the properties escheated from the city or municipality
2.Recover proceeds of the sale of the property from the city or municipality (if sold by the city or
municipality)
In case of adverse decision on escheat, Remedy:
-APPEAL (Record on Appeal 30 days- relate to Rules 40 and 41)
(G)
GUARDIANSHIP
(Rules 92-97, Guardianship of Incompetents; AM 3-
2-5, Guardianship of Minors)
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What is guardianship?
-Special proceeding whereby the property of the ward is administered by a person appointed by the
court
Guardian
-A person appointed by court or by law to administer the property of the ward
Jurisdiction and Venue:
In case of Guardianship of minor: (AM 3-2-5 S3)
-Family Court where the minor actually resides or where the property situated ifnon-resident minor (in
relation to RA 8369 aka Family Courts Act of 1997)
In case of Guardianship of incompetent: (Rule 92 S1)
-RTC of the place of residence of incompetent person or if a resident of a foreign country, where the
property or portion thereof is situated
Who may petition for guardianship?
In case of minor: (for purpose of managing affairs or properties)
S2, AM 03-02-05-SC
1.Relative
-Parent
-Guardian
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-Brother or sister
2.Other person in behalf of minor - Actual custodian
3.Minor himself, if he is 14 years of age or over
In case of incompetent:
Rule 93 S1 (if incompetent is a resident)
1.Relative
2.Friend
3.Other person in behalf of an incompetent who has no parents or lawful guardian
4.Secretary of Health in case of insane person who should be hospitalized or in favour of an isolated
leper
Rule 93 S6 (if incompetent is a non resident)
1.Relative
2.Friend of such person
3.Any person interested in his estate, in expectancy or otherwise
4.Secretary of Health in case of insane minor who needs to be hospitalized
Note that pursuant to the Domestic Adoption Act (S7 DAA), the ward may be adopted by the Guardian
after termination of Guardianship
Kinds of Guardians
1.Natural Guardian- parents of ward
2.Guardian ad litem- appointed for specific purpose
3.Judicial Guardian- appointed to manage affairs or properties of the ward
Who are minors? Incompetents?
Minors:
Any person below 18 years of age
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Incompetents:
-Suffering from civil interdiction
-Hospitalized lepers
-Prodigals
-Deaf and dumb who are unable to read and write
-Of unsound mind, even though with lucid interval
-Not of unsound mind, but by reason of age, disease, weak mind, other similar diseases, cannot take
care of the property without outside aid, becoming an easy prey to deceit and exploitation
Who can be guardians of a minor?
(S16, Rules on Guardianship of minors)
-Parents
-Surviving grandparents or if several, court to select taking into account all relevant considerations
-Oldest brother or sister,
-Actual custodian,
oIn the latter 2, higher than 21 y o, unless unfit or disqualified
-Any other person the court may deem sufficient
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Duties of a guardian:
-Give bond
-Render inventory
-Faithfully execute duties of trust
-Render accounting of estate and interests
-Settle debts
-Deliver estate, effects, moneys to persons lawfully entitled thereto
-Perform all orders of the court required by him to be performed
-Care and custody of ward, management of estate, or both
-Pay debts of ward out of personal property or income of real property
-Settle all accounts, sue for, receive debts with court approval
-Appear for and represent ward in all actions and special proceedings
-Manage estate of ward without waste, apply income and profits for best interests of the ward
-If income is insufficient for purposes, sell or encumber real estate when authorized by court to do so,
apply proceeds for maintenance of the ward
Requirements for sale or disposition of properties of the ward:
AM 3-2-5 (minors); Rule 95 (incompetents)
-Verified petition stating:
oIncome of estate sufficient for maintenance of ward
oFor benefit of ward that real estate be sold and proceeds used
-If sale beneficial to ward, court to order next of kin and other persons to appear and show cause why
prayer should not be granted
-Hearing of proofs and allegations, refuse or grant prayer
o If beneficial to ward, order sale, proceeds for maintenance of ward and family
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o Specify cause why sale is beneficial, order estate to be sold at private or public sale
-Original bond to stand as security for property appropriated with proceeds, but judge may require
additional bond as condition for granting proceeds of the sale
-Court to invest proceeds of sales and encumbrances
Grounds for termination of Guardianship:
(S25- Minors)
-Ward has come of age,
-Ward died
(97 1- Incompetents)
-Competency of ward is judicially determined
-Guardianship is no longer necessary
-Death of guardian
-Death of ward
Grounds for removal/resignation of guardian:
(S24- Minors; (97 2-Incompetents)
-Guardian becomes insane, or otherwise incapable of discharging his trust
-Guardian becomes unsuitable
-Wasted or mismanaged wards properties
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-Failed to render accounting or make a return for 30 days when due
Remedies in case of mismanagement of properties:
(S24- Minor; 97 2- Incompetent)
-Ask court for removal of guardian
-Require guardian to surrender properties of ward to person lawfully entitled thereto
-Ward can ask for resignation of guardian
CUSTODY OF MINORS IN RELATION TO HABEAS
CORPUS
AM 3-4-4-SC
The remedy of Habeas Corpus is available in issues regarding as to who between 2 persons (usually,
spouses) is entitled to have custody over a child
-File habeas corpus in such case
Distinguish this from Rule 102, because in Custody of Minors in relation to habeas corpus, the issue is
specific, while Habeas Corpus under Rule 102 extends to all cases of illegal confinement
Jurisdiction/Venue: (S3)
Family Court of the place where the minor resides
(NOTE: Can also be filed with MTC, RTC, CA, SC [?])
Mother and grandparents, or husband and wife. Who has better right to custody of the child?
-In case of children below 7 years old, custody must be given to the mother except if the mother is unfit
because of immorality
Who may file petition for custody of minors?
S2, AM 03-04-04-SC
Any person claiming such right, such as:
(S13)
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1.Both parents jointly
2.Either parent, taking into account all relevant considerations, especially the choice of the minor over 7
years of age and of sufficient discernment, unless the parent chosen is unfit
3.Grandparent, or if several grandparents, grandparent chosen by the minor over 7 years of age and of
sufficient discernment, unless the grandparent chosen is unfit or disqualified
4.Eldest brother or sister over 21 years of age, unless he or she is unfit or disqualified
5.Actual custodian of the minor over 21 years of age, unless the former is unfit or disqualified
6.Any other person or institution the court may deem suitable to provide proper care and guidance for
the minor
Grounds for denial of Petition:
-Existing threat or danger of physical, mental, sexual, emotional violations
-Prejudicial to health, safety, welfare
-Petitioner with history of child or spousal abuse
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-Habitual alcoholism or drug addiction
-Marital misconduct
-Unfitness of petitioner
Protection orders:
(S17) requiring any person,
1.To stay away from home, school, business or place of employment of the minor, other parent, or any
other party, or from any other specific place designated by the court
2.To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any
person to whom custody of the minor is awarded
3.To refrain from acts of commission or omission that create an unreasonable risk to the health, safety,
or welfare of the minor
4.To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit
the minor at stated periods
5.To permit a designated party to enter the residence during a specified period of time in order to take
personal belongings not contested in a proceeding pending with the Family Court
6.To comply with such orders as are necessary for the protection of the minor
(include those provisional remedies under Rules 57- 61 of the Rules of Court)
(T)
TRUSTEESHIP
(Rule 98)
Trust
-A confidence imposed in one person, called the trustee, for the benefit of another, called the cestui que
trust, with respect to property held by the former for the benefit of the latter
o Will by trustor- trustee to hold property for beneficiary
WILL- LWT, written document
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Here, there is trustor, trustee, beneficiary, the trustee to perform acts in the will of the trustor for the
beneficiary
Jurisdiction/Venue:
(Rule 98 S1)
MTC or RTC depending on the gross value of the estate of the place where the will is probated, or if
a non-resident, where the estate is found
Elements constituting a Trust:
(De Leon, p. 664)
1.Competent trustor and trustee
2.Ascertainable trust res
3.Sufficiently certain beneficiaries
Requisites for trusteeship:
1.Trust reposed between trustor and trustee
2.With sufficiently certain beneficiaries
3.Trust res / subject matter
4.Act to be performed by trustee
5.Beneficiary
6.Work of trustor creating trusteeship
Illustration: father (trustor) deposits money for son in bank, bank being the trustee. Bank cannot release
the proceeds to the son (beneficiary) the money until he turns 20 years old.
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(A)
ADOPTION
(RA 8552- DAA; RA8043- ICAA; AM 2-6-2- Rules on Adoption)
Adoption
-A juridical act, proceeding in rem, which creates between 2 persons a relationship similar to that which
results from legitimate paternity and filiation
Kinds of adoption:
1.Domestic Adoption (governed by RA 8552)
2.Inter Country Adoption (governed by RA 8043)
Jurisdiction / Venue
1.DA- Family court where the adoptive parents reside
2.ICA- ICAB or the Family Court where the minor resides
Who may adopt? Requirements? Who may be adopted?
DAA
1.Filipino Citizen
-Of legal age
-In possession of full civil capacity and legal rights
-Of good moral character
-Not convicted of any crime involving moral turpitude
-Emotionally and psychologically capable of caring for children
-At least 16 years older than adoptee
oEXCEPT:
If adopter is biological parent of adoptee
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If adopter is the spouse of the adoptive parent
-In a position to support and care for his or her children in keeping with the means of the family
2.Alien
-Possessing the same qualifications as Filipino nationals
-His or her country has diplomatic relations with the Republic of the Philippines
-Living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption
and maintains such residence until the adoption decree is entered
oEXCEPT:
If adopter is former
Filipino citizen seeking to adopt relative within 4th civil degree of consanguinity or affinity
Adopter seeks to adopt LC of Filipino spouse
Married to Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4th civil
degree of consanguinity or affinit5y of Filipino spouse
-Certified by his or her diplomatic or consular office or any appropriate agency that he or she has legal
capacity to adopt in his or her country
oEXCEPT:
If adopter is former
Filipino citizen seeking to adopt relative within 4th civil degree of consanguinity or affinity
Adopter seeks to adopt LC of Filipino spouse
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Married to Filipino citizen and seeks to adopt jointly
with his or her spouse a relative within the 4th civil degree of consanguinity or affinit5y of Filipino
spouse
-His or her government allows the adoptee to enter his or her country as his or her adopted son or
daughter
3.Guardian
-With respect to ward after termination of guardianship and clearance of his or her financial
accountabilities
ICAA
1.Alien permanently residing abroad
2.Filipino citizen permanently residing abroad
-At least 27 years of age and at least 16 years older than child to be adopted at the time of the
application unless
o Adopter is parent by nature of child to be adopted
-If married, his or her spouse must jointly file for the adoption
-Has capacity to act and assume all rights and responsibilities of parental authority under his national
laws and has undergone appropriate counselling from an accredited counsellor in his or her country
-Not convicted of crime involving moral turpitude
-Is eligible to adopt under his or her national law
-In a position to provide the proper care and support to give the necessary moral values and example to
all his children including the child to be adopted
-Agrees to uphold basic rights of the child as embodied under Philippine laws, UN Convention on the
Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this
Act
-Comes from a country with whom the Philippines has diplomatic relations, and whose government
maintains a similarly authorized and accredited agency and that adoption is allowed under his or her
national laws
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-Possesses all the qualifications and none of the disqualifications provided therein and in other
applicable Philippine laws
Who may be adopted?
DAA
1.Any person below 18 years of age who has been administratively and judicially declared available for
adoption
2.Legitimate son or daughter of one spouse by the other spouse
3.Illegitimate son or daughter by a qualified adopter to improve his or her status to that of legitimacy
4.Person of legal age if, prior to the adoption, said person has consistently been considered and treated
by the adopters as his or her own child since minority
5.Child whose adoption has been previously rescinded
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6.Child whose biological or adoptive parents died, provided, that no proceedings shall be initiated within
6 months from time of death of said parents
ICAA
1.Only a legally free child
Notes:
Correction of simulated birth may be filed simultaneously with petition for adoption
Simulated Birth (note: crime to)
oSa certificate of live birth, inilagay, hindi ang biological parents
-Hence, in correction of simulated birth, make the corrections
Same is true with change of name which can also be filed simultaneously with petition for adoption.
Who are the following?
Abandoned Child
Neglected Child
Voluntarily Committed Child
Involuntarily Committed Child
Dependent Child
Section 3 of the Rules on Adoption (AM 02-06-02)provides for the following definitions:
Abandoned Child
-a child who has no proper parental care or guardianship or whose parents, guardian, or whose parents
have deserted him for a
period of at least 6 continuous months and has been judicially declared as such
Neglected Child- iniiwan sa bahay bahay, sa tapat ng gate (unsure if pertaining to this or to abandoned
child)
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-a child whose basic needs have been deliberately not attended to or inadequately attended to,
physically or emotionally, by his parents or guardian
Voluntarily committed child
-a child whose parents knowingly and willingly relinquish parental authority over him in favour of the
Department
Involuntarily committed child- mga asa Boys Town
-a child whose parents, known or unknown, have been permanently and judicially deprived of parental
authority over him due to abandonment; substantial, continuous, or repeated neglect and abuse; or
incompetence to discharge parental authorities
Dependent Child
-one who is without a parent, guardian, or custodian or one whose parents, guardian, or other custodian
for good cause desires to be relieved of his care and custody and is dependent upon the public for
support
Effect of adoption decree:
-Adoptee will use surname of adoptive parents
-Entitle adoptee to successional rights, equivalent to legitimate child
-Grant adoptee rights and privileges of legitimate child
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IF adoption is rescinded (see below), then revert back to old status before adoption decree
Abandoned / Neglected Child
-Before, file petition for declaration of abandonment
-Ngayon, declaration of abandonment together with adoption may be filed in one petition
NOTE that in adoption: BEST INTERESTS / WELFARE OF THE CHILD
Petitioner needs to prove he is physically, mentally, financially capable to adopt
A person of legal age can be adopted
In case of adoption of minor,
-Biological parent to issue affidavit of consent without which the petition for adoption shall not be
allowed
-Can also join in petition for adoption, petition for change of name designated by minor, using surname
of adoptive parents state in the petition
Inter Country Adoption
-Important that there be diplomatic ties between the 2 countries, or else, petition cannot be granted
ICAB
- Under the Office of the President / DSWDo Asa Legarda / Mendiola, Manila
Annexes to petition for ICA:
-Written and officially translated in English:
1.Birth certificate of petitioner
2.Marriage contract, or, if not married anymore, divorce decree or judgment dissolving the marriage
3.Sworn statement of consent of petitioners biological or adopted children under 10 years of age
4.Physical, medical, psychological evaluation of petitioner duly certified by duly licensed physician and
psychologist
5.ITR or any document showing current financial capability of petitioner
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6.Police clearance of petitioner issued within 6 months following filing of petition
7.Character reference from local church / minister, petitioners employer and a member of the
immediate community who have known petitioner for at least 5 years
8.Full body postcard size pictures of petitioner and his immediate family taken at least 6 months before
the filing of the petition
(R)
RESCISSION/REVOCATION OF ADOPTION
(RA 8552- DAA)
Grounds:
1.Repeated physical or verbal maltreatment by adopter despite having undergone counselling
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2.Attempt on life of adoptee
3.Sexual assault or violence on the adoptee
4.Abandonment or failure to comply with parental obligations
Jurisdiction / Venue:
Family Court which rendered decree of adoption
Who may file? (ONLY the ADOPTEE)
-Adoptee above 18 y o
-If a minor, with DSWD assistance
-If higher than 18, but incapacitated, assisted by guardian or counsel
When filed?
Within 5 years after reaching age of majority or if incapacitated at the time of adoption, within 5 years
after recovering from the incompetency
Ef
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