civil procedure special proceedings

8/13/2019 Civil Procedure Special Proceedings

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SPECIAL PROCEEDINGS

1. INTRODUCTION

1. Definition of terms:

1. Special proceeding: A special proceeding is a remedy by which a party seeks to establisha status, a right, or a particular fact.1

2. Probate: Probate is a special proceeding to establish the validity of a will. o will passesproperty unless it is probated by a court. Probate is mandatory. !t is in rem. "ence, the courtis also called a probate court. #ut a probate court also includes a court that presides overprobate proceedings which can generally refer to the settlement of the estate of a deceasedperson with or without a will.

$. %eprobate: %eprobate is a special proceeding to establish the validity of a will proved in aforeign country.

&. 'egacy: A legacy is a be(uest of personal property in a will to a person called thelegatee.2

). *evise: A devise is a be(uest of real property in a will to a person called the devisee.$

+. estate -state: estate estate refers to an estate of a deceased person which is settledor to be settled with the last will and testament of that deceased person called the testator.&

. !ntestate -state: !ntestate estate refers to the estate of a deceased person without a will.he estate is settled by the laws of intestacy provided in the /ivil /ode.

0. -ecutor: An eecutor is the person named in the will who is entrusted to implement itsprovisions. #ut the eecutor needs to be issued letters testamentary after the courtdetermines his or her (ualifications. A female eecutor is called eecutri.)

. Administrator: An administrator is the person entrusted with the care, custody andmanagement of the estate of a deceased person until the estate is partitioned anddistributed to the heirs, legatees and devisees, if any. A female administrator is calledadministratri.+

.1 he court issues letters of administration to a person after s3he (ualifies in thesound discretion of the court.

1Rules of Court, Rule 1, Sec. 3 (c).2Civil Code, Art. 782, par. 2.3Ibid.4Civil Code, Art. 775.5Rules of Court, Rule 78.6.Ibid


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.2 !t is possible that a will can be probated without a testator or with a testator whois dis(ualified to enter upon the trust. "ence, the court can issue letters ofadministration with the will anneed.

14. -scheat: -scheat, a term of 5rench or orman derivation meaning chance or accident,is the reversion of property to the State when the title thereto fails from defect of an heir. !t is

the falling of a decedent6s estate into the general property of the State.

11. 7uardians: A guardianship is a trust relation in which one person acts for another whomthe law regards as incapable of managing his own affairs. he person who acts is called theguardian and the incompetent is called the ward.

12. rustee: A trustee is a person appointed by a court to carry out the provisions of a will,as provided in %ule 0. As generally understood, a trust is the legal relationship betweenone person having an e(uitable ownership in property and another person owning the legaltitle to such property. he beneficiary of the trust is known as the cestui que trustor thecestui que trustent8the plural form9.

1$. 5ideicommissary substitution: 5ideicommissary substitution takes place where the

testator designates a person as an heir charging him to deliver to another the whole or partof the inheritance under circumstances provided in Art. 0+$ of the /ivil /ode, formerly Art.01 of the Spanish /ivil /ode. !n the civillaw ;urisdiction, this is the nearest e(uivalent ofthe concept of trust in the commonlaw ;urisdiction.

1&. Habeas corpus: he 'atin term habeas corpuswhich literally means 6you have thebody,6 is a high prerogative writ, of ancient commonlaw origin, the great ob;ect of which isthe liberali


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10. Absentees: An absentee is a person whose whereabouts and eistence are not knownin the sense of the law allowing a subse(uent marriage and for purposes of administrationof the estate of the absentee and of succession.

1. /ivil %egistry: he civil registry is the public record where acts, events and ;udicialdecrees concerning the civil status of persons are entered.14

24. =ultiple Appeals: =ultiple appeals are appeals in special proceedings, as first providedin the !nterim %ules of /ourt, where a number of appeals may be taken separately orsimultaneously by different parties for different purposes. A record on appeal is necessaryin order not to pre;udice the proceedings that will have to continue and that may have tostop or be suspended if the entire record of the proceedings is elevated.

2. Rules Tht Go!ern S"e#il Pro#ee$in%s

1. he 1 %ules of /ivil Procedure shall govern the procedure to be observed in actions,civil or criminal, and special proceedings.11

2. !n the absence of special provisions, the rules provided for in ordinary actions shall be, as

far as practicable, applicable in special proceedings.12

2.1 %ules regarding the preparation, filing and service of applications, motions andother papers, are the same in civil actions and in special proceedings. Provisionsregarding the omnibus motion rule, subpoena, computation of time, motion for newtrial, discovery, and trial before commissioners also apply in special proceedings.he procedure of appeal is generally the same in civil actions as in specialproceedings.1$

2.2 he rule on demurrer to evidence in civil cases, by virtue of which the defendantdoes not lose the right to offer evidence in the event that his motion is denied, isapplicable in special proceedings.1&

&. The S"e#il Pro#ee$in%s Pro!i$e$ In The Rules Of Court

1. Settlement of estate of deceased persons 8%ules $ to 49>

2. -scheat 8%ule 19>

$. 7uardianship and custody of children 8%ules 29>

&. rustees 8%ule 09>

). Adoption 8%ule 9>

+. %escission and revocation of adoption 8%ule 1449>

. "ospitali

1Civil Code, Art. 47.11. Rules of Court, Rule 1, Sec. 3 Su"ta! v. Co-ua"#coSu"ta!, /. R. 0o. 132524, ece+er 2', 1''8, 3 SCRA 76

12Rules of Court, Rule 72, Sec. 2

13er"a"de v. aravilla, 0o. 187'', arc% 31, 1'64, 1 SCRA 58'.

14atute v. Court of Appeals, 0o. 26751, a"uar! 3, 1'6', 26 SCRA 768.

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0.Habeas corpus8%ule 1429>

. /hange of name 8%ule 14$9>

14. ?oluntary dissolution of corporations 8%ule 14&9 which under Presidential*ecree o. 42A, should be filed with the Securities and -change /ommission

and governed by specific rules>

11. @udicial approval of voluntary recognition of minor natural children 8%ule 14)9>

12. /onstitution of the 5amily "ome 8%ule 14+9, rendered ineistent by the 5amily/ode which provides for an automatic constitution of the family home>

1$. *eclaration of absence and death 8%ule 149> and

1&. /ancellation or correction of entries in the civil registry 8%ule 1409.

D. S"e#il Pro#ee$in%s Un$er 'rious L(s

1. Summary Proceedings under the 5amily /ode

2. Actions mentioned in the 5amily /ourts Act of 1 8%ep. Act o. 0$+9

2.1 Petitions on foster care and temporary custody

2.2 *eclaration of nullity of marriage under Article $+, 5amily /ode

2.$ /ases of domestic violence against women and children 8specialprovisional remedies and temporary custody of children and support

pendente lite9

$. Proceedings under the /hild and outh Belfare /ode 8Pres. *ecree o. 140$9,the /hild Abuse Act 8%ep. Act o. +149 and the /hild -mployment Act 8%ep. Acto. +)09

$.1 *eclaration of status as abandoned, dependent or neglected children

$.2 ?oluntary or involuntary commitment of children

$.$ Suspension, termination, or restoration of parental authority

&. !ntercountry adoption under %epublic Act o. 04&$

). *uris$i#tion of +mil, Courts

he newly constituted 5amily /ourts shall have eclusive original ;urisdiction over thefollowing cases:

1. /riminal cases where one or more of the accused is below eighteen 8109years of age but not less than nine 89 years of age, or where one or moreof the victims is a minor at the time of the commission of the offense>Provided, that if the minor is found guilty, the court shall promulgate the

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sentence and ascertain any civil liability which the accused may haveincurred. he sentence, however, shall be suspended without need ofapplication pursuant to Presidential *ecree o. +4$, otherwise known asthe 6/hild and outh Belfare /ode>6

2. Petitions for guardianship, custody of children, habeas corpusin relation

to the latter>

$. Petitions for adoption of children and the revocation thereof>

&. /omplaints for annulment of marriage, declaration of nullity of marriageand those relating to marital status and property relations of husband andwife or those living together under different status and agreements andpetitions for dissolution of con;ugal partnership of gains>

). Petitions for support and3or acknowledgment>

+. Summary ;udicial proceedings brought under the provisions of -ecutiveCrder o. 24, otherwise known as the 65amily /ode of the Philippines>6

. Petitions for declaration of status of children as abandoned, dependentor neglected children, petitions for voluntary or involuntary commitment ofchildren> the suspension, termination, or restoration of parental authorityand other cases cogni

0. Petitions for the constitution of the family home 8ote: his is no longernecessary9>

. /ases against minors cogni

14. ?iolations of %epublic Act o. +14, otherwise known as the 6SpecialProtection of /hildren Against /hild Abuse, -ploitation and *iscrimination

Act,6 as amended by %epublic Act o. +)0> and

11. /ases of domestic violence against:

11.1 Bomen which are acts of genderbased violence that result, or arelikely to result in physical, seual or psychological harm or suffering towomen> and other forms of physical abuse such as battering or threats andcoercion which violate a woman6s personhood, integrity and freedom ofmovement> and

11.2 /hildren which include the commission of all forms of abuse,neglect, cruelty, eploitation, violence, and discrimination and all otherconditions pre;udicial to their development.

!f an act constitutes a criminal offense, the accused or batterer shall be sub;ect to criminalproceedings and the corresponding penalties.

!f any (uestion involving any of the above matters should arise as an incident to any casepending in the regular courts, said incident shall be determined in that court.

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2. SETTLE-ENT O+ ESTATE O+ DECEASED PERSONS

1. In Generl

1. @urisdiction and ?enue

1.1 he settlement of the estate of deceased persons shall be in the court of theplace of residence of the deceased at the time of his death, whether he is a citi


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1.+ he li(uidation of the con;ugal or community property of a deceased husband orwife shall be made in his or her estate proceedings, but if both spouses aredeceased, then in the estate proceeding of either.21

1.Shari'a /ourts have eclusive original ;urisdiction in matters of settlement of theestate of deceased =uslims.22

2. in$s of settlement

Cn the basis of the form of settlement, there are three kinds:

2.1 -tra;udicial settlement>

2.2 Summary settlement of estates of small value> and

2.$ @udicial settlement through letters testamentary or letters of administration withor without the will anneed.

&. E/tr0u$i#il settlement

An etra;udicial settlement may be made by the heirs of a deceased person without having tosecure letters of administration.2$

$.1 he following re(uisites must be present or followed:

$.1.1 he decedent left no will and no debts.

ote: !t shall be presumed that the decedent left no debts if no creditor files apetition for letters of administration within two 829 years after the death of thedecedent.2&

$.1.2 A bond e(uivalent to the value of the personal property of the estate is postedwith the %egister of *eeds.

ote: he value must be certified to under oath by the parties concerned and thebond must be conditioned upon the payment of any ;ust claim that may be filed.2)

$.1.$ he fact of settlement is published in a newspaper of general circulation oncea week for three 8$9 consecutive weeks.

ote: o etra;udicial settlement shall be binding upon any person who has notparticipated therein or had no notice thereof.2+

$.2 he etra;udicial settlement may follow any one of three 8$9 ways:

21Rules of Court, Rule 73, Sec. 2.22reside"tial ecree 0o. 183, Art. 143.23Rules of Court, Rule 74, Sec. 1.24Ibid.25Ibid.26Rules of Court, Rule 74, Sec. 1.

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$.2.1 Public instrument. A public instrument is eecuted by all the heirs tobe filed with the %egistry of *eeds.

$.2.2 Action for Partition. !f the heirs cannot agree on the division of theestate, an ordinary action for partition may be filed.

$.2.$ Affidavit of selfad;udication. !f there is only one heir, then the heirmay eecute an affidavit ad;udicating to himself or herself the entire estate,which affidavit shall be filed with the register of deeds.2

$.$ =inor heirs

!f there are minor heirs, they may be represented by their D;udicial or legalrepresentatives duly authori


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&.0 All orders and ;udgments shall be recorded in the office of the clerk, and theorder of partition or award, if it involves real estate, shall be recorded in the properregister6s office.

o longer the /ourt of 5irst !nstance as provided in Sec. 2, %ule & but a =etropolitan or=unicipal /ourt because the value of the property does not eceed Php 244,444 for both

=etro =anila and outside =etro =anila 8#.P. #lg. 12, Sec. $$E1F> %.A. o. +1, Sec. ).9.

). *u$i#il settlement (ith letters testmentr, or (ith letters of$ministrtion

Settlement shall otherwise be in court in special proceedings through a fullblown procedurewith either a testator or an eecutor managing the estate of the deceased until partition anddistribution after the payment of debts, legacies and devises.

2. Prote of 3ills

1. Bill, eplained

A will is an act whereby a person is permitted with all the formalities prescribed by law tocontrol to a certain degree the disposition of his estate, to take effect after his death. $1!t isotherwise called a 6last will and testament.6

1.1 !t may be a notarial will with certain important re(uisites.

1.1.1 -very will must be in writing and eecuted in a language or dialectknown to the testator.$2

1.1.2 -very will, other than a holographic will, must be subscribed at theend thereof by the testator himself or by the testator6s name written bysome other person in his presence, and by his epress direction, andattested and subscribed by three 8$9 or more credible witnesses in the

presence of the testator and of one another.$$

1.1.$ he attestation shall state the number of pages used upon which thewill is written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under his epressdirection, in the presence of the instrumental witnesses, and that the latterwitnessed and signed the will and all the pages thereof in the presence ofthe testator and of one another.$&

1.1.& -very will must be acknowledged before a notary public by thetestator and the witnesses.$)

1.1.) !f the will is not contested, only one 819 subscribing witness needs to

testify>$+ if the will is contested, all subscribing witnesses and the notarymust testify.$

31Civil Code, Art. 783.32Civil Code, Art. 84.33Ibid, Art. 85, first para#rap%.34Ibid, Art. 85, t%ird para#rap%.35Ibid, Art. 86.36Rules of Court, Rule 76, Sec. 5.37Ibid, Sec. 11.

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1.2 !t may be a holographic will if it is in the handwriting of the testator, but it mustbe entirely written, dated and signed by him.

1.2.1 !t is sub;ect to no other form, may be made in or out of thePhilippines, and needs no witnesses.$0

1.2.2 At least one witness should testify that the will and the signaturethereon are in the handwriting of the testator.$ !f the holographic will iscontested, at least three 8$9 witnesses who know the handwriting of thetestator must testify but in the absence of any competent witness, if thecourt deems it necessary, epert testimony may be resorted to.&4

2. Time to sumit to the #ourt

2.1 %eglementary periods

2.1.1 Bithin twenty 8249 days from knowledge of the death of the testator, thecustodian of a will shall deliver it to the court having ;urisdiction or to the eecutornamed in the will.&1

2.1.2 Cn the other hand, the eecutor has twenty 8249 days from knowledge of thedeath of the testator or knowledge of the fact that he is named eecutor to submitthe will to the court unless the will has reached the court already. Bithin the sameperiod, he shall signify to the court in writing whether he accepts or refuses thetrust.&2

2.2 Penalties

2.2.1 A person who neglects to comply with the foregoing two provisions, withoutecuse satisfactory to the court, shall be fined not eceeding Php 2,444.44.

2.2.2 he custodian who refuses to comply with the order of the court to deliver thewill, when he is ordered to do so, may be committed to prison until he delivers thewill.

&. Pro#e$ure In The Prote of A 3ill

$.1 he contents of a petition for the allowance of a will are:

$.1.1 he ;urisdictional facts>

$.1.2 he names, ages, and residences of the heirs, legatees, and devisees of thetestator or decedent>

$.1.$ he probable value and character of the property of the estate>

$.1.& he name of the person for whom letters are prayed>

38Civil Code, Art. 81.3'Ibid, Article 811 Rules of Court, Rule 76, Sec. 5.4Rules of Court, Rule 76, Sec. 11, seco"d para#rap%.41. Ibid, Rule 75, Sec. 2.42Ibid, Sec. 3.

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$.1.) !f the will has not been delivered to the court, the name of the person havingcustody of it.

ote: #ut no defect in the petition shall render void the allowance of the will, or the issuanceof letters testamentary or of administration with the will anneed.&$

$.2 ime for proving the will

he court shall fi a time and place for proving the will when all concerned may appear tocontest the allowance thereof.&&

ote: "owever, the court need not go through the probate of a will that preterited acompulsory heir since preterition invalidates the will.&)

$.$ Publication of notice

he court shall cause notice of such time and place to be published three 8$9 weekssuccessively, previous to the time appointed, in a newspaper of general circulation in theprovince.&+

ote: Bhere the petition for probate has been filed by the testator himself, no newspaperpublication shall be made.&

$.& Persons entitled to notice&0$.&.1 "eirs, devisees, legatees, and eecutors should benotified by mail or personally.

$.&.2 he mail should be deposited in the post office with the postage thereonprepaid at least twenty 8249 days before the hearing, if the places of residence beknown.

$.&.$ Personal service of copies of the notice at least ten 8149 days before the day

of hearing shall be e(uivalent to mailing.

$.&.& !f the testator asks for the allowance of his own will, notice shall be sent onlyto his compulsory heirs.

$.) Proof at hearing&

At the hearing, compliance with the provisions on notice and its publication must be shownbefore the introduction of testimony in support of the will. All testimony shall be taken underoath and reduced to writing.

$.+ 'ost or destroyed will)4

43. Rules of Court, Rule 76, Sec. 2.44Rules of Court, Rule 76, Sec. 3.450u#uid v. 0u#uid, /. R. 0o. 23445, u"e 23, 1'66, 17 SCRA 44'46Rules of Court, Rule 76, Sec. 3.47Ibid.48Rules of Court, Rule 76, Sec. 4.4'Ibid, Sec. 5.5Ibid, Sec. 6.

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o will shall be proved as a lost or destroyed will unless:

$.+.1 the eecution and validity of the same be established> and

$.+.2 the will is proved to have been in eistence at the time of the death of thetestator, or is shown to have been fraudulently or accidentally destroyed during the

lifetime of the testator without his knowledge> nor

$.+.$ unless its provisions are clearly and distinctly proved by at least two 829credible witnesses.

$. *eposition)1

!f none of the subscribing witnesses resides in the province, the court may, on motion, directa deposition to be taken, and may authori thedue eecution of the will> and proof of the handwriting of the testator and of the subscribingwitnesses, or of any of them.

$. /ontesting a will)$

Anyone appearing to contest the will must state in writing his grounds for opposing itsallowance, and serve a copy thereof on the petitioner and other parties interested in theestate.

$.14 7rounds for disallowing a will)&

he will shall be disallowed in any of the following cases:

$.14.1 !f not eecuted and attested as re(uired by law>

$.14.2 !f the testator was insane, or otherwise mentally incapable to make a will, atthe time of its eecution>

$.14.$ !f it was eecuted under duress, or the influence of fear, or threats>

$.14.& !f it was procured by undue and improper pressure and influence, on the partof the beneficiary, or of some other person for his benefit>

$.14.) !f the signature of the testator was procured by fraud or trick, and he did notintend that the instrument should be his will at the time of fiing his signaturethereto.

51Rules of Court, Rule 76, Sec. 7.52Ibid, Sec. 8.53Ibid, Sec. 1.54Ibid, Sec. '.

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&. E/e#utors n$ A$ministrtors

1. Re4uirements +or The Issun#e Of Letters Testmentr, An$ Of Letters OfA$ministrtion))

Probate proceedings may be opened by a petition for the allowance of a will and the

issuance of letters testamentary, as previously discussed or letters of administration.

1.1 he petition may be opposed and a petition may at the same time be filed forletters of administration with the will anneed.)+

1.2 he contents of a petition for letters of administration are:

1.2.1 he ;urisdictional facts>

1.2.2 he names, ages, and residences of the heirs, and the names andresidences of the creditors, of the decedent>

1.2.$ he probable value and character of the property of the estate> and

1.2.& he name of the person for whom letters of administration are prayed>

ote: #ut no defect in the petition shall render void the issuance of lettersof administration.)

1.$ o person is competent to serve as eecutor or administrator who is 8a9 aminor> 8b9 not a resident of the Philippines> and 8c9 in the opinion of the court, unfitto eecute the duties of the trust by reason of drunkenness, improvidence, or wantof understanding or integrity, or by reason of conviction of an offense involvingmoral turpitude.)0

2. A""ointment of E/e#utors 5(ho m, e#ome e/e#utors6)7

2.1 After a will is proved and allowed, the court shall issue letters testamentary thereon to theperson named as eecutor therein, if he is competent, accepts the trust, and gives bond asre(uired by the rules. !t is clear that an eecutor is one who is named in a will.

2.2 here may be several eecutors named in the will. 'etters testamentary may issue tosuch of them as are competent, accept and give bond. !f no eecutor named (ualifies, thenan administrator is appointed.+4

&. A""ointment Of A$ministrtors8 Priorities91

Administration may be granted:

55Rules of Court, Rules 78 a"d 7'.56Ibid, Rule 7', Sec. 1.57Rules of Court, Rule 7', Sec. 2.58Ibid, Rule 78, Sec. 1.5'Ibid, Sec. 46Rules of Court, Rule 78, Sectio". 5.61Rules of Court, Rule 78, Sec. 6.

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$.1 o the surviving spouse, or net of kin, or both, or to such person as suchsurviving spouse or net of kin, re(uests to be appointed, if competent and willing toserve.

$.2 o one or more of the principal creditors, if competent and willing to serve, indefault of the foregoing or if the surviving spouse or net of kin neglects for thirty

8$49 days after the death of the deceased to file a petition for administration or there(uest that administration be granted to some other person.

$.$ o such other person as the court may select, in default of the foregoing.

ote: he court may disregard the preference above enumerated in its sound discretion andits decision will not be interfered with on appeal unless it appears that it is in error.+2

. A""ointment Of S"e#il A$ministrtors

A special administrator may be appointed 68w9hen there is delay in granting letterstestamentary or of administration by any cause including an appeal from the allowance ordisallowance of a will.D+$he special administrator shall take possession and charge of the

estate of the deceased until (uestions causing the delay are decided and eecutors oradministrators appointed.

&.1 Bhile the (ualifications of a special administrator are not spelled out in therules, the appointment should be within the sound discretion of the court and suchdiscretion should not be a whimsical one. here is no reason why the samefundamental and legal principles governing the choice of a regular administratorshould not be taken into account in the appointment of a special administrator. +&

"owever, the court is not bound to follow the order of preference set up for theappointment of a general administrator.+)

&.2 Cnly one special administrator at a time may be appointed, since theappointment is merely temporary.++

&.$ Powers and duties

he special administrator shall take possession and preserve the goods, chattels,rights, credits, and estate of the deceased and for that purpose may commence andmaintain suits as administrator. "e may sell only such perishable and otherproperty as the court orders sold. "e is not liable to pay any debts of the deceasedunless so ordered by the court.+

&.& he court has no power to order a special administrator to sell real property ofthe estate pending resolution of the issue of the appointment of the regularadministrator.+0

62Silverio, Sr. v. Court of Appeals, /. R. 0o. 1''7', arc% 11, 1''', 34 SCRA 541.63Rules of Court, Rule 8, Sec. 1.649aeta v. ecso", '3 %il. 416 &1'53.659ce-o v. Co"sul /e"eral of Spai", 67 %il. 475 &1'3'.669aeta v. ecso",supra, "ote 64 er"a"de v. aravilla,supra, "ote 13.67Rules of Court, Rule 8, Sec. 2.68Silverio, Sr. v. Court of Appeals,supra, "ote 62.

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&.) A special administrator does not have the power to close the estate because henormally does not pay the debts of the deceased. "owever, he can be sued. hereis no epress prohibition> otherwise, prescription may set in if the appointment ofthe regular administrator is delayed.+

&.+ ermination

he special administrator may be removed on grounds other than those mentionedin %ule 02.4Bhen an eecutor or administrator is appointed, the powers of thespecial administrator cease. "e shall immediately deliver the estate to the eecutoror administrator who may prosecute to final ;udgment suits commenced by thespecial administrator.1

). on$ of A$ministrtor or E/e#utor ;2

).1 #efore an eecutor or administrator enters upon the eecution of his trust, he shall give abond, in such sum as the court directs, conditioned as follows:

).1.1 o make and return within three 8$9 months, a true and complete inventory>

).1.2 o administer the estate and pay and discharge all debts, legacies, andcharges on the same, or dividends thereon>

).1.$ o render a true and ;ust account within one 819 year, and at any other timewhen re(uired by the court> and

).1.& o perform all orders of the court.

).2 5urther bond

he eecutor may serve without bond if the testator so directs, or with only his individual

bond, conditioned only to pay the debts of the testator> but the court may re(uire a furtherbond in case of a change in his circumstances, or for other sufficient cause.$

9. Generl Po(ers n$ Duties of E/e#utors n$ A$ministrtors

An eecutor and administrator has the following powers and duties:

6'A"derso" v. er*i"s, 0o. 15388, a"uar! 31, 1'61, 1 SCRA 387.7e /ala v. /o"ales, 53 %il. 14 &1'2' Ro:as v. ecso", 82 %il. 47 &1'48.71Rules of Court, Rule 8, Sec. 3.72. Rules of Court, Rule 81.73Rules of Court, Rule 81, Sec. 2.

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+.1 o maintain the estate in 6tenantable repair6 and deliver the same in such repairto the heirs or devisees when directed by the court>&

+.2 o possess and manage the estate of the deceased for the payment of the debtsand epenses of administration>)

+.$ o have access to partnership books and property where the deceased was apartner, under pain of contempt by the probate court>+

+.& Bith the approval of the court, to compound or compromise with a debtor of thedeceased.

;. In!entor, An$ A""risl

Bithin three 8$9 months after his appointment, an eecutor or administrator shall file a trueinventory and appraisal of all the real and personal estate of the deceased, with theassistance of one or more inheritance ta appraisers, as may be ordered by the court.

.1 -clusions from the inventory

he articles that should not be inventoried are: 8a9 the wearing apparel of thesurviving spouse and minor children, 8b9 the marriage bed and bedding, and 8c9such provisions and other articles as will necessarily be consumed in thesubsistence of the family of the deceased. hey shall not be considered as assets,nor administered as such.0

.2 Allowance to widow and family

he widow and minor or incapacitated children of the deceased, during thesettlement of the estate, shall receive such allowance as are provided by law.

.$ Huestions of title

A probate court can resolve (uestions of title only provisionally. All that the courtcan do is to determine whether the properties should or should not be included inthe inventory or list of properties to be administered by the administrator. !f there isno dispute, well and good, but if there is, then the parties, the administrator and theopposing parties have to resort to an ordinary action for a final determination of theconflicting claims of title because the probate court cannot do so.04


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he need for approval by the probate court eists only where specific properties of the estateare sold and not when only ideal and indivisible shares of an heir are disposed of. 01he saleor mortgage of specific estate property may be approved by the court under the followingcircumstances:

0.1 5or the payment of debts

he sale or encumbrance of real property to pay the obligations of the estate, ifbeneficial, may be approved when personal property is not enough to pay for theobligations of the estate, or where its sale or mortgage may be in;urious to thoseinterested and where the testator has not otherwise provided.

ote: !f a part of the real property cannot be sold, or otherwise encumbered withoutin;ury to those interested in the remainder, the disposition may be of the whole ofthe property, or so much as is necessary or beneficial under the circumstances.02

0.2 !f beneficial

he court may authori


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0.&.& he court may then grant the petitions in proper cases, such part ofthe estate as is deemed necessary. he court may authori 008b9 all claimsfor funeral epenses> 8c9 epenses for the last sickness of the decedent> and 8d9

;udgment for money against the decedent, which should be presented in the form ofclaims against the estate.0

.$ =ortgage due estate may be foreclosed

!f the deceased was a mortgagee or assignee of the right of a mortgagee, themortgage may be foreclosed by the eecutor or administrator.4

.& Proceedings when property concealed, embe


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.&.2 !f the person so cited refuses to appear and give rogatories, the courtmay punish him for contempt and may commit him to prison until hesubmits to the order of the court. he interrogatories, if any, and hisanswers thereto, shall be in writing and shall be filed in court.2

.) %endition of account

A person entrusted by the eecutor or administrator with property of the deceased,may be compelled to render a full account on oath before the court. $

.+ -mbe


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!mmediately after granting letters testamentary or of administration, the court shall issue anotice re(uiring all persons having money claims against the decedent to file them in theoffice of the clerk of court.0

14.1 ime within which claims shall be filed

!n said notice, the court shall state the time for the filing of claims against the estate,which shall not be more than twelve 8129 nor less than si 8+9 months after the dateof the first publication of the notice. "owever, before an order of distribution isissued, the court may, for cause shown and on such terms as are e(uitable, allow aclaim to be filed within a time not eceeding one 819 month.

14.2 Publication of notice to creditors

he eecutor or administrator shall immediately cause the notice to be publishedthree 8$9 weeks successively in a newspaper of general circulation in the province,and to be posted for the same period in four 8&9 public places in the province and intwo 829 public places in the municipality where the decedent last resided.144

14.$ 5iling copy of printed notice

Bithin ten 8149 days after the publication and the posting, the eecutor oradministrator shall file in court a printed copy of the notice, accompanied with anaffidavit of publication setting forth the dates of the first and last publication thereofand the name of the newspaper in which the same was printed.141

14.& 5iling of claims

he claims which must be filed under the notice are:

14.&.1 all claims for money against the decedent, arising from contract,

epress or implied, whether the same be due, not due, or contingent>

14.&.2 all claims for funeral epenses and epenses for the last sickness ofthe decedent> and

14.&.$ ;udgment for money against the decedent.142

ote: Gnder the 1 %ules of /ivil Procedure, an action for a contractual moneyclaim against a defendant who dies before entry of final ;udgment, must proceeduntil entry of final ;udgment. A favorable ;udgment obtained by the plaintiff shall beenforced as a money claim against the estate of the defendant which shall be filedin the estate proceeding.14$

14.) ime bar

'8Ibid, Rule 86, Sec. 1.''Ibid, Sec. 2.1Ibid.11Rules of Court, Rule 86, Sec. 4.12Ibid, Sec. 5.13Rules of Court, Rule 3, Sec. 2.

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/laims that are not filed within the time limited in the notice, are barred forever,ecept that they may be set forth as counterclaims in any action that the eecutor oradministrator may bring against the claimants.

14.+ Set off

Bhere an eecutor or administrator commences an action, or prosecutes an actionalready commenced by the deceased in his lifetime. A debtor may set forth in anaction by the eecutor or administrator against him, by answer the claims he hasagainst the decedent, instead of presenting them independently as a claim againstthe estate, and mutual claims may be set off against each other in such action./laims not yet due, or contingent, may be approved at their present value.14&

14. "ow to file a claim14)

A claim may be filed with the clerk of court with the necessary vouchers andsupporting affidavits, serving a copy thereof on the eecutor or administrator.

14..1 !f the claim is not due, or is contingent, it must also be supported by

affidavit stating the particulars thereof. Bhen the affidavit is made by aperson other than the claimant, he must set forth therein the reason why itis not made by the claimant.14+

14..2 he court, in its discretion, and as a matter of convenience, mayorder all the claims to be collected in a separate folder.14

14.0 *isposition of admitted claim

Any claim admitted by the eecutor or administrator shall immediately besubmitted by the clerk to the court who may approve the same without hearing> butthe court may order that known heirs, legatees, or devisees be notified and heard.140

14. rial of contested claim

!f an heir, legatee, or devisee opposes the claim, the court may allow him fifteen81)9 days to answer the claim. Gpon the filing of an answer or upon the epiration ofthe time for such filing, the clerk of court shall set the claim for trial with notice toboth parties. he court may refer the claim to a commissioner.14

14.14 @udgment appealable

he ;udgment of the court approving or disapproving a claim, is appealable. A;udgment against the eecutor or administrator that he pay shall not create any lien

14Rules of Court, Rule 86, Sec. 5.14)Ibid, Sec. .

16Ibid.17Rules of Court, Rule 86, Sec. '.18Ibid, Sec. 11.1'Ibid, Secs. 11 a"d 12.

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upon the property of the estate, or give to the ;udgment creditor any priority ofpayment.114

11. P,ment Of Dets

!f there are sufficient assets to pay the debts, the eecutor or administrator shall pay the

same within the time limited for that purpose.111

11.1 Source of payment as designated by the testator

he debts of the testator, epenses or administration, or family epenses, shall bepaid according to the provisions of the will> but if the provisions are not sufficient,such part of the estate not disposed of by will, if any, shall be appropriated for thatpurpose.112

11.2 Personalty first chargeable for debts, then realty

he personal property of the deceased shall first be chargeable with the payment ofdebts and epenses> but if it is not sufficient, or its sale would be detrimental to theparticipants of the estate, the whole of the real estate not disposed of by will, or somuch thereof as is necessary, may be sold, mortgaged, or otherwise encumberedby the eecutor or administrator, after obtaining the authority of the court therefor.11$

11.$ Preference of payment if estate insolvent

!f the assets are not sufficient for the payment of debts, they shall be paid inaccordance with the provisions of Articles 14) and 22$ to 22)1 of the /ivil /odeon concurrence and preference of credits.11&

11.& Bhen and how claim proved outside the Philippines against insolventresident6s estate paid

!f claims have been duly proven in another country against the estate of an insolventwho was at the time of his death an inhabitant of the Philippines, and that the localeecutor or administrator knew of such claims and an opportunity to contest theirallowance, the court shall add a certified list of such claims to the list of claimsproved in the Philippines so that a ;ust distribution of the whole estate may be made,but the benefit of this and the preceding sections shall not be etended to thecreditors in another country if the property of the deceased there found is note(ually apportioned to the creditors residing in the Philippines and the othercreditors, according to their respective claims.11)

11.) ime for paying debts and legacies

he eecutor or administrator shall pay the debts and legacies of the deceasedwithin a period of time fied by the court, which shall not eceed one 819 year, butthe court may, on motion of the eecutor or administrator and after hearing, etend

11Rules of Court, Rule 86, Sec. 13111Rules of Court, Rule 88, Sec. 1.112Ibid, Sec. 2.113Ibid, Sec. 3.114Rules of Court, Rule 88, Sec. 7.115Rules of Court, Rule 88, Sec. 1.

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the time as the circumstances of the estate re(uire not eceeding si 8+9 months fora single etension, but the whole period allowed to the original eecutor oradministrator shall not eceed two 829 years.11+

12. A##ountilit, An$ Com"enstion Of E/e#utors An$ A$ministrtors

-cept as otherwise epressly provided in the following sections, every eecutor oradministrator is chargeable 8a9 with the whole of the estate of the deceased which has comeinto his possession, at the value of the appraisement contained in the inventory> 8b9 with allthe interest, profit, and income of such estate> and 8c9 with the proceeds of so much of theestate as is sold by him, at the price at which it was sold. 11

12.1 !ncrease or decrease in value

o eecutor or administrator shall profit by the increase, or suffer loss by thedecrease or destruction, without his fault, of any part of the estate.

12.1.1 "e must account for the ecess when he sells any part of the estatefor more than the appraised value, and if any is sold for less than the

appraisement, he is not responsible for the loss, if the sale has been ;ustlymade.

12.1.2 !f he settles any claim against the estate for less than its nominalvalue, he is entitled to charge in his account only the amount he actuallypaid on the settlement.110

12.2 Accountable for income from realty used by him

!f the eecutor or administrator uses or occupies any part of the real estate himself,he shall account for it as may be agreed upon between him and the partiesinterested, or ad;usted by the court with their assent. !f the parties do not agree, the

amount may be ascertained by the court, whose determination shall be final.11

12.$ Accountable for delay

Bhen an eecutor or administrator unreasonably delays to collect the debts, sellestate of the deceased, or neglects to pay over the money he has in his hands, andthe value of the estate is thereby lessened or unnecessary cost or interest accrues,or the persons interested suffer loss, the damage sustained may be charged againsthim, and he shall be liable therefor on his bond.124

12.& -penses and fees allowed eecutor or administrator121

An eecutor or administrator shall be allowed the necessary epenses in the care,

management, and settlement of the estate, and for his services, four pesos per dayfor the time actually and necessarily employed, or a commission upon the value ofso much of the estate as comes into his possession and is finally disposed of by him

116Ibid, Sec. 15.117Rules of Court, Rule 85, Sec. 1.118Ibid, Sec. 2.11'Rules of Court, Rule 85, Sec. 4.12Ibid, Sec. 5.121Ibid, Sec. 1.

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in the payment of debts, epenses, legacies, or distributive shares, or by delivery toheirs or devisees, of :

12.&.1 2I of the first Php ),444>

12.&.2 1I of more than Php ),444 but less than Php $4,444>

12.&.$ 132I of more than Php $4,444, but less than Php 144,444> and

12.&.& 13&I of more than Php 144,444.

ote: #ut in any special case, where the estate is large, and the settlement hasbeen attended with great difficulty, and has re(uired a high degree of capacity onthe part of the eecutor or administrator, a greater sum may be allowed. !f ob;ectionto the fees allowed to be taken, the allowance may be reeamined on appeal.

12.) wo or more eecutors or administrators

!f there are two or more eecutors or administrators, the compensation shall beapportioned among them by the court according to the services actually rendered bythem respectively.122

12.+ Attorney6s fees prohibited

Bhen the eecutor or administrator is an attorney, he shall not charge against theestate any professional fees for legal services rendered by him,12$ but he mayemploy counsel.12&

12. /ompensation provided in the will

Bhen the deceased by will makes some other provision for the compensation of hiseecutor, it shall be a full satisfaction for his services unless by a written instrumentfiled in the court he renounces all claim to the compensation provided by the will.12)

12.0 Bhen eecutor or administrator to render account

-very eecutor or administrator shall render an account of his administration withinone 819 year from the time of receiving letters testamentary or of administration,unless the court otherwise directs because of etensions of time for presentingclaims against, or paying the debts of, the estate, or for disposing of the estate. "eshall render such further accounts as the court may re(uire until the estate is whollysettled.12+

12. -aminations on oath with respect to account

122Rules of Court, Rule 85, Sec. 1.123Ibid, Sec. 7.

12&*acanay v. 'a =ancomunidad de elepuis, 2 Phil. )4 E1&1F> Aldami< v. @udge of the/ourt of 5irst !nstance of =indoro, 0) Phil. 220 E1&F.

125Rules of Court, Rule 85, Sec. 7.126Ibid, Sec. 8.

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he heirs, legatees, distributees, and creditors of the estate and the eecutor oradministrator may be eamined on oath on any matter relating to an administrationaccount.12

12.14 otice to eamine the account of the eecutor or administrator

#efore the account of an eecutor or administrator is allowed, notice shall be givento persons interested of the time and place of eamining and allowing the same>and such notice may be given personally or by advertisement in a newspaper ornewspapers, or both, as the court directs.120A person liable as surety in respect tosuch account may, upon application, be admitted as party to such accounting.12

. Distriution n$ Prtition1&=

he distribution of the estate can only be made after strict compliance with the provisions in%ule 4, %ules of /ourt.

1. 3hen Distriution Is -$e

1.1 Payment of obligations re(uired

he estate may be distributed only if the debts, funeral charges, andepenses of administration, the allowance to the widow, and inheritanceta, if any, have been paid. 8ote: Bhat is provided in the law is only anestate ta payable by the heir has already been abrogated.9

1.1.1 he court, on the application of the eecutor or administrator,or of a person interested in the estate, and after hearing uponnotice, shall assign the residue of the estate to the persons entitledto the same, naming them and the proportions, or parts, to whicheach is entitled, and such persons may demand and recover their

respective shares from the eecutor or administrator, or any otherperson having the same in his possession.

1.1.2 !f there is a controversy as to who are the lawful heirs of thedeceased person or as to the distributive shares to which eachperson is entitled under the law, the controversy shall be heardand decided as in ordinary cases.1$1

1.2 Advance distribution

o distribution shall be allowed until the payment of the obligations abovementioned has been made or provided for, unless the distributees, or anyof them, give a bond, in a sum to be fied by the court, conditioned for the

payment of said obligations within such time as the court directs.1$2

2. Prtil $istriution> (ithout ",in% estte t/es

127Ibid, Sec. '.128Rules of Court, Rule 85, Sec. 1.12'Ibid, Sec. 11.13Rules of Court, Rule '.131Rules of Court, Rule ', Sec. 1, first a"d seco"d para#rap%s.132Ibid, seco"d para#rap%.

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A ;udge commits a grave abuse of discretion when he orders a partial distribution of theestate without the payment of estate taes.1$$

&. E/"enses of "rtition

-penses of partition may be paid by the eecutor or administrator when it appears e(uitable

to the court and not inconsistent with the intention of the testator> otherwise, they shall bepaid by the parties in proportion to their respective shares or interest in the premises, and theapportionment shall be settled and allowed by the court, enforceable by eecution. 1$&

. Pro0e#t of Prtition

he practice in this ;urisdiction is to prepare and present a pro;ect of partition to the court. !tis merely a proposal for the distribution of the hereditary estate and determine the personsentitled thereto.1$)

). +inl or$er of "rtition8 re#or$in% the or$er of "rtition of the estte

/ertified copies of final orders and ;udgments of the court relating to the real estate orpartition thereof shall be recorded in the registry of deeds.1$+

&. GUARDIANS

1. Ne#essit, +or Gur$inshi"

A court will have no ;urisdiction to render ;udgment against one ad;udged physically andmentally incompetent to manage her affairs where no guardian was appointed upon whomsummons and notice of the proceedings might be served.1$

1. he 6incompetent6 as the sub;ect of guardianship. he incompetentincludes 819 persons suffering from the penalty of civil interdiction> 829hospitali 8$9 prodigals> 8&9 deaf and dumb who are unable to readand write> 8)9 those who are of unsound mind even though they may havelucid intervals> and 8+9 those who are not of unsound mind, but by reason ofage, disease, weak mind, and other similar causes, cannot without outsideaid, take care of themselves and manage their property, becoming therebyan easy prey for deceit and eploitation.1$0

2. Parents as guardians

133=era v. 0avarro, 0o. 27745, 9cto+er 18, 1'77, 7' SCRA 48.134Rules of Court, Rule ', Sec. 3.1$)=oran, Comments on the Rules o Court, 1 ed., ?ol. $, pp. +00.

136Rules of Court, Rule ', Sec. 4.137/orostia#a v. Sarte, 68 %il. 4 &1'3'.138Rules of Court, Rule '2, Sec. 2.

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Bhen the property of the child under parental authority is worth Php2,444.44 or less, the father or the mother, without the necessity of courtappointment, shall be his legal guardian. Bhen the property of the child isworth more than Php 2,444.44, the father or the mother shall be consideredguardian of the child6s property, with the duties and obligations of guardiansunder these rules, and shall file the petition re(uired by the rules. 5or goodreasons the court may, however, appoint another suitable person.1$

2. *uris$i#tion n$ 'enue

1. Bhere to file petition for guardianship

Any relative, friend, or other person on behalf of a resident minor or incompetent who has noparent or lawful guardian, or the minor himself if fourteen years of age or over, may petitionfor the appointment of a general guardian for the person or estate, or both, of such minor orincompetent.1&4

2. ransfer of venue

!f the ward transfers his bona ide residence, the court may transfer the guardianship case tothe court of the place of his residence wherein he has ac(uired real property, and additionalcourt fees are not re(uired.1&1

&. Petition +or Gur$inshi"

1. Bho may file

Any relative, friend or other person on behalf of a resident minor or incompetent who has noparent or lawful guardian, or the minor himself if fourteen years of age or over, may petitionfor the appointment of a general guardian for the person or estate, or both, of such minor orincompetent.1&2

2. /ontents of petition

he petition shall allege:

819 he ;urisdictional facts>

829 he minority or incompetency>

8$9 he names, ages and residences of the relatives of the minor or incompetent,and of the persons having him in their care>

8&9 he probable value and character of his estate> and

8)9 he names of the person for whom letters of guardianship are prayed.1&$

13'Ibid, Rule '3, Sec. 7.14Rules of Court, Rule '3, Sec. 1.141Ibid, Rule '2, Sec. 3.142Rules of Court, Rule '3, Sec. 1.143Rules of Court, Rule '3, Sec. 2.

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$. otice of hearing

%easonable notice of the hearing of the petition shall be given to the persons mentioned inthe petition residing in the province, including the minor if above 1& years of age or theincompetent himself. he court may direct other general or special notice to be given. 1&&

&. 7rounds for opposition

he petition may be opposed on the grounds of 8a9 ma;ority of the alleged minor> 8b9competency of the alleged incompetent> or 8c9 unsuitability of the proposed guardian.1&)

). Crder

At the hearing, the alleged incompetent must be present as much as possible. -vidence willbe heard and if it be proved that the person in (uestion is a minor or incompetent, the courtshall appoint a suitable guardian of his person or estate, or both.1&+

+. 7uardian for the estate of a nonresident

Cn notice, by publication or otherwise, and after the hearing, a guardian may be appointedfor the estate in the Philippines of a nonresident minor or incompetent.1&

. Gur$in?s on$

he guardian shall give a bond conditioned: 8a9 to make a true and complete inventory withinthree months> 8b9 to manage and dispose of the estate, and to provide for the proper care,custody and education of the ward> 8c9 to render a true and ;ust account> and 8d9 to performall orders of the court.1&0

1. ew bond

A new bond may be re(uired and the old sureties discharged whenever itis deemed necessary, after due notice to interested persons, when noin;ury can result therefrom to those interested in the estate.1&

2. #ond to be filed> actions thereon

-very bond of a guardian shall be filed in the office of the clerk of the court.!n case of the breach of a condition thereof, it may be prosecuted in thesame proceeding or in a separate action.1)4

). Generl Po(ers n$ Duties

he guardian has the care and custody of the person of the ward and3or the management ofhis estate. he guardian should pay the ward6s ;ust debts from his personal property and

144Ibid, Sec. 3.145Ibid, Sec. 4.146Rules of Court, Rule '3, Sec. 5.147Ibid, Rule '3, Sec. 6.148Rules of Court, Rule '4, Sec. 1.14'Ibid, Sec. 2.15Rules of Court, Rule '4, Sec. 3.

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he original bond of the guardian shall answer for the proceeds of the sale, but the court mayre(uire an additional bond.1)0he order to sell is valid for one 819 year.1)

$. A court order authori


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. ADOPTION

1. Go!ernin% L(s

1. he basic governing law on domestic adoption is found in %epublic Act o. 0))2, which isDAn Act -stablishing the %ules and Policies on the *omestic Adoption of 5ilipino /hildren.D !twas approved on 5ebruary 2), 10. !t took effect fifteen 81)9 days after its completepublication in a newspaper of general circulation in the $icial %a&ette.

2. Cn *ecember 2, 10, %ules and %egulations to !mplement the *omestic Adoption Act of10 were promulgated to govern the adoption of 5ilipino children within the Philippines.

$. 5oreign adoptions are governed by %epublic Act o. 04&$, which is DAn Act -stablishingthe %ules to 7overn !nter/ountry Adoption of 5ilipino /hildren,D approved on @une 2, 1).

&. Prior laws on adoption include provisions in the /hild and outh Belfare /ode8Presidential *ecree o. +4$9, the 5amily /ode, and -ecutive Crder o. 1.

). he 5amily /ode epressly repealed Articles 11, 2$1, $&2 of the /ivil /ode andArticles 22, $1, $$ and $) of Presidential *ecree o. +4$.

+. he /ivil /ode provisions, however, were epressly repealed by the provisions of P.*. o.+4$, which took effect in 1), or si months after its approval on *ecember 14, 1&.

. About si months before the 5amily /ode was signed by President /ora


32/62

*ecember 2$, 10+. !t was published in the $icial %a&etteon @anuary 12, 10. !t shouldhave taken effect fifteen 81)9 days thereafter or on @anuary 2, 10.

0. %epublic Act o. 0))2 provides that any law, presidential decree or issuance, eecutiveorder, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistentwith its provisions is repealed, modified or amended accordingly. 1++he provisions of %ules

and 144 in the %ules of /ourt should thus be considered amended.

2. Petition for A$o"tion

1. Bho may adopt

hose who may adopt are enumerated in Sec. of %ep. Act o. 0))2, vi&:

8a9 Any 5ilipino citi or

8iii9 one who is married to a 5ilipino citi or

8iv9 the guardian with respect to the ward after the termination ofthe guardianship and clearance of his3her financial accountabilities.

8c9 "usband and wife shall ;ointly adopt, ecept in the following cases:

166Sec. 26, Repu+lic Act 0o. 8552, Sec. 26.

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&.&.$ one who is married to a 5ilipino citi


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8&9 he illegitimate sons3daughters, ten 8149 years of age or over, of theadopter if living with said adopter and the latter6s spouse, if any.

8)9 he spouse, if any, of the person adopting or to be adopted.

.$ Crder for hearing

!f the petition and consent are sufficient in form and substance, and a favorablecase study has been made, as hereafter mentioned, the court, by an order, shall fithe date and place of the hearing which shall not be more than si 8+9 months afterthe issuance of the order.11

.& Publication of order

he order shall direct that a copy thereof be published before the hearing once aweek for three 8$9 successive weeks in a newspaper of general circulation in theprovince.

.) /ase Study

o petition for adoption shall be set for hearing unless a licensed social worker ofthe *epartment, the social service office of the local government unit, or any childplacing or childcaring agency has made a case study of the adoptee, his3herbiological parent8s9, as well as the adopter8s9, and has submitted the report andrecommendations on the matter to the court.

.+ #irth registration

At the time of preparation of the adoptee6s case study, the social worker concernedshall confirm with the /ivil %egistry the real identity and registered name of theadoptee. !f the birth of the adoptee was not registered with the /ivil %egistry, the

social worker shall ensure that the adoptee is registered.

. 'egally available

he case study shall establish that the adoptee is legally available for adoption andthat the documents to support this fact are valid and authentic. 5urther, the casestudy of the adopter shall ascertain his genuine intentions and that the adoption is inthe best interest of the child.

.0 !ntervention by *BS*

he *BS* shall intervene on behalf of the adoptee if it finds, after the case study,that the petition should be denied. he case studies and other relevant documentsand records pertaining to the adoptee and the adoption shall be preserved by the*epartment.12

. Supervised rial /ustody

171Rules of Court, Rule '', Sec. 4.172Rep. Act 0o. 8552, Sec. 11.

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o petition for adoption shall be finally granted until the adopter3s has3have beengiven by the court a supervised trial custody period for at least si 8+9 months withinwhich the parties are epected to ad;ust psychologically and emotionally to eachother and establish a bonding relationship. *uring said period, temporary parentalauthority shall be vested in the adopter3s.

8a9 he court may motu proprioor upon motion of any party reduce the trialperiod if it finds the same to be in the best interest of the adoptee, statingthe reasons for the reduction of the period. "owever, for alien adopters,they must complete the si 8+9month trial custody ecept for thoseenumerated in Sec.8b98i98ii98iii9.

8b9 !f the child is below seven 89 years of age and is placed with theprospective adopter through a preadoption placement authority issued bythe *epartment, the prospective adopter shall en;oy all the benefits to whichbiological parents are entitled from the date the adoptee is placed with theprospective adopter.1$

.14 *ecree of adoption

!f, after the publication of the order of hearing, no opposition has been interposed,and after consideration of the case studies, the (ualifications of the adopter, the trialcustody report, and the evidence submitted, the court is convinced that thepetitioners are (ualified to adopt, and that the adoption would redound to the bestinterest of the adoptee, a decree of adoption shall be entered. he decree shallstate the name by which the child is to be known1&which shall be effective as of thedate the original petition was filed.

ote: his provision shall also apply in case the petitioner dies before the issuanceof the decree of adoption to protect the interest of the adoptee.1)

0. /ivil %egistry %ecord

An amended certificate of birth, without any notation that it is an amended issue, shall beissued by the /ivil %egistry, attesting to the fact that the adoptee is the child of the adopterby being registered with his3her surname. he original certificate of birth shall be stamped6cancelled6 with the annotation of the issuance of an amended birth certificate in its place andshall be sealed in the civil registry records1+

. /onfidential ature of Proceedings

All hearings in adoption cases are confidential and shall not be open to the public. Allrecords, books, and papers relating to the adoption cases in the files of the court, the *BS*,or any other agency or institution participating in the adoption proceedings shall be kept

strictly confidential. he court may authori


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14. Service of ;udgment

he ;udgment shall be served by the clerk on the civil registrar.

&. Res#ission of A$o"tion

1. 7rounds for rescission

Gpon petition of the adoptee, with the assistance of the *SB* if a minor or if overeighteen 8109 years of age but is incapacitated, as guardian3counsel, the adoptionmay be rescinded on any of the following grounds committed by the adopter8s9: 8a9repeated physical and verbal maltreatment by the adopter8s9 despite havingundergone counselling> 8b9 attempt on the life of the adoptee> 8c9 seual assault orviolence> or 8d9 abandonment and failure to comply with parental obligations.10

178&. Res#ission of A$o"tion

1. 7rounds for rescission

Gpon petition of the adoptee, with the assistance of the *SB* if a minor or if over eighteen 8109 years of agebut is incapacitated, as guardian3counsel, the adoption may be rescinded on any of the following groundscommitted by the adopter8s9: 8a9 repeated physical and verbal maltreatment by the adopter8s9 despite havingundergone counselling> 8b9 attempt on the li fe of the adoptee> 8c9 seual assault or violence> or 8d9abandonment and failure to comply with parental obligations.10

2. Bho may file

A minor or other incapacitated person may, through a guardian or guardian ad litem, file thepetition for rescission of adoption. Gnder %ep. Act o. 0))2, Sec. 1, adoption, being in thebest interest of the child, shall not be sub;ect to rescission by the adopter8s9. "owever, theadopter8s9 may disinherit the adoptee for causes provided in Article 1 of the /ivil /ode.

$. ime to file petition

he petition must be filed within five 8)9 years following attainment of ma;ority, or followingrecovery from incompetency.1

&. Procedure

he court shall issue an order re(uiring the adverse party to answer the petition withinfifteen 81)9 days from receipt of a copy thereof. he order and a copy of the petition shall beserved on the adverse party in such manner as the court may direct. After trial, if the courtfinds the allegations of the petition to be true, the court shall render ;udgment orderingrescission, with or without costs, as ;ustice re(uires.

). Service of ;udgment

A certified copy of the ;udgment shall be served upon the civil registrar concerned. Bithinthirty 8$49 days from rendition of the ;udgment, he shall enter the action in the civilregister.104

Footnotes

10. %ep. Act o. 0))2, Sec. 1.

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2. Bho may file

A minor or other incapacitated person may, through a guardian or guardian ad litem, file thepetition for rescission of adoption. Gnder %ep. Act o. 0))2, Sec. 1, adoption, being in thebest interest of the child, shall not be sub;ect to rescission by the adopter8s9. "owever, theadopter8s9 may disinherit the adoptee for causes provided in Article 1 of the /ivil /ode.

$. ime to file petition

he petition must be filed within five 8)9 years following attainment of ma;ority, or followingrecovery from incompetency.1

&. Procedure

he court shall issue an order re(uiring the adverse party to answer the petition within fifteen81)9 days from receipt of a copy thereof. he order and a copy of the petition shall be servedon the adverse party in such manner as the court may direct. After trial, if the court finds theallegations of the petition to be true, the court shall render ;udgment ordering rescission, withor without costs, as ;ustice re(uires.

). Service of ;udgment

A certified copy of the ;udgment shall be served upon the civil registrar concerned. Bithinthirty 8$49 days from rendition of the ;udgment, he shall enter the action in the civil register.104

. Inter@Countr, A$o"tion 5Re". A#t No.


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he process of intercountry adoption refers to the process of adopting a 5ilipino child by aforeigner or by a 5ilipino citi


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.2 "usband and wife must ;ointly adopt. 10$

.$ onresident aliens cannot adopt.10&

). CUSTOD O+ -INORS

1. *uris$i#tion

A petition for the custody of minors is also provided in Section 1, %ule which providesfor a petition for adoption. he petition for custody of children is now within the eclusiveoriginal ;urisdiction of 5amily /ourts, as provided in Sec. )8b9, 5amily /ourts Act of 1,or %ep. Act o. 0$+.

2. Chil$ren Un$er Se!en ers of A%e

Gnder Article 21$, second paragraph 5amily /ode, no child under seven years of age shallbe separated from the mother, unless the court finds compelling reasons to orderotherwise. Gnder Pres.*ecreee +4$, Art. 1, the age of the child was five years of age,reduced from the /ivil /ode provision of seven years of age. ow it is back to seven yearsof age under the 5amily /ode.

1. 5ormerly, under the /ivil /ode, the provision was that no mother shouldbe separated from her child under seven years of age. 10)he changeemphasi


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/omplaints on cases of unlawful acts committed against children under the /hild AbuseAct may be filed by 8a9 the offended party, 8b9 parents or guardians, 8c9 ascendant orcollateral relative within the third degree of consanguinity> 8d9 officer, 8e9 social worker orrepresentative of a licensed childcaring institution> 8f9 officer or social worker of the*SB*> 8g9 baranga)chairman, or 8g9 at least three 8$9 concerned responsible citi


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recogni An$one$ Or Ne%le#te$ Chil$ren

14*avid v. /ourt of Appeals, 7.%. o.111104, ovember 1+, 1), 2)4 S/%A 02

12Pres. *ecree o. +4$, Article +0.civil actions for support.

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hese types of children are defined in Presidential *ecree o. +4$, Art. 1&1. A verifiedpetition for their involuntary commitment may be filed. 1$

1. !nvoluntary commitment

5or various provisions on the procedure for involuntary commitment, such as the

contents of the petition, verification, order to set time for hearing, summons, whennot necessary, representation of child, duty of fiscal, hearing, commitment of child,when child may stay in his own home, termination of rights of parents, authority ofperson, agency or institution, change of custody, refer to Articles 1&21)$,Presidential *ecree +4$.

2. ?oluntary commitment

Provisions on voluntary commitment which should be in writing, legal custody,visitation, report, temporary custody of children, prohibited acts, report of person orinstitution, refer to Articles 1)& to 1), Presidential *ecree +4$.

$. ?arious other provisions

Cther significant provisions in Presidential *ecree o. +4$ refer to:

Art. 1). emporary /ustody of /hild

Art. 1+4. Prohibited Acts of 'eaving an !nstitution

Art. 1+1. *uty to %eport Abandonment

Art. 1+2. Adoption of *ependent or Abandoned or eglected /hild

Art. 1+$. %estoration of /hild After !nvoluntary /ommitment

Art. 1+&. %estoration After ?oluntary /ommitment

Art. 1+). %emoval of /ustody

Art. 1++. %eport of =altreated or Abused /hild

Art. 1+. 5reedom from 'iability of %eporting Person or !nstitution.

&. Special /hildren

A child who appears to be mentally retarded, physically handicapped, emotionallydisturbed, or mentally ill, and needs institutional care but his parents or guardiansare opposed thereto, a petition for commitment of the child may be filed. 1&Provisions on venue, contents of petition, order of hearing, disposition of propertyor money of the committed child, children with cerebral palsy, discharge of a child

;udicially committed, discharge of child voluntarily committed, report on conduct ofchild, and related provisions, refer to Articles 10 to 24&, P.*. +4$.

1$. Pres. *ecree o. +4$, Article 1&2.1'4res. ecree 0o. 63, Article 177

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9. BAEAS CORPUS

1. Definition n$ Nture

#asically, it is a writ directed to the person detaining another, commanding him to producethe body of the prisoner at a designated time and place, with the day and cause of hiscapture and detention, to do, submit to, and receive whatsoever the court or ;udge awardingthe writ shall consider in that behalf. he 'atin term habeas corpuswhich literally meansDyou have the body,D is a high prerogative writ, of ancient commonlaw origin, the greatob;ect of which is the liberali


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he writ of habeas corpusalso issues when a bond given by the accused entitled thereto isnot admitted, or ecessive bond is re(uired, 244or the penalty imposed by the court is notprovided by law. 241

. Po(er to Grnt 3rit8 Enfor#eilit,

he writ may be issued by the Supreme /ourt or by the /ourt of Appeals or any memberthereof, enforceable anywhere in the Philippines, returnable to the same court or anymember thereof or to the %/ 8/5!9 or any ;udge thereof for hearing and decision. 242

). Re4uisites of ""li#tion

!f the detention is by an officer, the writ shall be directed to him, commanding him to bringthe body of the person restrained of liberty before the court at the time and place specified.!f the detention is by a person other than an officer, then the writ shall be directed to anofficer commanding him to the same effect and to summon the person restraining. herespondent will be asked to eplain the cause of the detention. 24$

9. Pro#e$ure 5Issun#e of (rit n$ return6

!f the writ if issued by an %/ ;udge, it is returnable only to himself and enforceable onlywithin his ;udicial district 8now region9 24&

;. Dis#hr%e of Person Detine$

Bhen the prisoner is unlawfully restrained, the court or ;udge shall order his dischargewhich shall not be effective until a copy of the order is served on the officer or persondetaining the prisoner. !f such officer or person does not desire to appeal, the prisoner shallbe forthwith released. 24)

2

@" re cCullou#% ic*, 38 %il. 41 &1'18.21lo+rera v. irector of riso"s, 87 %il. 17' &1'5.22Rules of Court, Rule 12, Sec. 2.

24$%ules of /ourt, %ule 142, Sec. +.

24&%ules of /ourt, Sec. 2.

25Rules of Court, Sec. 15.

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;. ESCBEATS

1. Es#hets> -enin% of

-scheat, a term of 5rench or orman derivation meaning chance or accident, is thereversion of property to the State when the title thereto fails from defect of an heir. !t is thefalling of a decedent6s estate into the general property of the State.

2. Pro#e$ure

1. Bhen filed

A petition to escheat property is filed when a person dies intestate, leaving behindreal or personal property but without an heir.24+

2. Bho files petition

he petitioner is the Solicitor 7eneral or his representative in behalf of the%epublic of the Philippines. 24

$. Bhere filed

he petition is filed in the %egional rial /ourt where the deceased last resided orin which he had property if he resided out of the Philippines. 240

&. /ontents of petition

he petition shall set forth the facts and pray that the estate of the deceased bedeclared escheated.24

). Crder of "earing

he court shall fi a date and place for the hearing of the petition, which date shall

not be more than si months after the rendition of the order. 214

26Rules of Court, Rule '1, Sec. 1.24Ibid.

28Ibid.2'Rules of Court, Rule '1, Sec. 1.21>%e Rules use t%e Bord e"tr! +ut it ea"s re"ditio".

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+. Publication

he order shall also direct that a copy thereof shall be published at least once aweek for si 8+9 successive weeks in some newspaper of general circulation in theprovince as the court deems best. 211

. @udgment

After hearing, the court shall ad;udge the properties escheated after payment of;ust debts and charges, and the properties shall be assigned pursuant to law asfollows:

.1 he personal estate shall be assigned to the municipality or city wherethe deceased last resided in the Philippines.

.2 he real estate shall be assigned to the municipalities or cities,respectively, in which the same is situated.

.$ !f the deceased never resided in the Philippines, the whole estate maybe assigned to the respective municipalities or cities where the same islocated.

.& Such estate shall be for the benefit of public schools, and publiccharitable institutions and centers in said municipalities or cities.212

&. Permnent Trust

he court may order the establishment of a permanent trust so that only the income fromthe property shall be used.21$

. Clim 3ithin +i!e ers

!f a person entitled to the estate escheated appears and files a claim with the court withinfive 8)9 years from the date of the ;udgment, he shall obtain possession and title to theproperty. !f it has already been sold, the municipality or city shall be accountable to him forthe proceeds, after deducting epenses for the care of the estate, but a claim not madewith said time shall be forever barred.

). Other #tions for es#het

Actions for reversion or escheat of properties alienated in violation of the /onstitution or ofany statute shall be governed also by %ule 1, ecept that the action shall be instituted inthe province where the land lies in whole or in part.

211Rules of Court, Rule '1, Sec. 1.212Rules of Court, Rule '1, Sec. 3.213Rules of Court, Rule '1, Sec. 3, seco"d para#rap%.

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such a proceeding would notbe of much benefit to him.21+#ut the petition will not be entertained ifpetitionerJs citi


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he hearing is held after notice and publication. 224he inclusion in the title of the petitionfor change of name and in the published order of the name sought to be authori


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hamper his social and business life> his change of name will do away with his many aliaseswhich should be discouraged, apart from the fact that it will avoid confusion and will be forthe convenience of the world at large in addressing him or in speaking of or dealing withhim. 22+

+. %esulting confusion

'egitimate minor children were not allowed to adopt the surname of the motherJs secondhusband, because there would be a false impression of their family relations, as it couldresult in confusion in their paternity.22

. !mproving personality or social standing

Cn the other hand, a natural child through her mother petitioned for a change of name toadopt the surname of her stepfather. he Solicitor 7eneral argued that this would hide thechildJs illegitimacy. he Supreme /ourt held that there was nothing wrong with it, and thata change of name may be asked to improve oneJs personality or social standing and topromote his best interests as long as in;ury or pre;udice is not caused to anyone. 220

0. 'egitimate minor child

A legitimate minor child may not also be allowed to change his surname from that of afather who was a fugitive from ;ustice to that of his mother. here will be confusion as toparentage as it might create the impression that the minors were illegitimate since theywould carry the maternal surname only, which is inconsistent with their legitimate status intheir birth records. 22

22+%epublic v. !ntermediate Appellate /ourt, 7. %. o. '4)1$, Cctober 1$, 10+, 1&)S/%A 2).

227adilla vs. Repu+lic, 0o. 28274, April 3, 1'82, 113 SCRA 78'.228Caldero" v. Repu+lic, /.R. 0o. 18127, April 5, 1'67, 1' SCRA 721.22'0aldoa v. Repu+lic, /.R. 0o. 55538, arc% 15, 1'82, 112 SCRA 568.

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7. ASENTEES

1. si# Con#e"ts

1. Provisional representative

Bhen a person disappears without leaving an agent behind, an interested party,relative or friend, may file a petition before the %/ 8/5!9 of the last place ofresidence of the person who disappeared to appoint provisionally a representativefor him.2$4

2. rustee or Administrator

After two 829 years without any news or after five 8)9 years if an agent was left toadminister his property, a petition for declaration of absence and appointment of atrustee or administrator may be filed.2$1

$. otice and publication is re(uired.2$2

&. Preferences

he court may appoint as trustee or administrator or provisional representative 819the spouse of the missing person if they are not legally separated or if the spouseis not a minor or otherwise incompetent> or, in default of the spouse, 829 anycompetent person.2$$

). ermination

he appointment shall be terminated 819 if the absentee appears personally or byagent> 829 when death is proved and the heirs appear> or 8$9 when a third person

ac(uires the property of the absentee.

+. A wife filed a petition to declare her missing husband absent and presumeddead. #ut he left no property. "-'*: here is no need for the petition. 2$&Adeclaration of presumption of death can never be final. 2$)

1=. CANCELLATION OR CORRECTION O+ ENTRIES IN TBE CI'IL REGISTR

23Rules of Court, Rule 17, Sec. 1.231Ibid, Sec. 2.232Ibid, Sec. 4.233Rules of Court, Rule 16, Sec. 7.234Re!es v. Ale-a"dro, 0o. 3226, a"uar! 16, 1'86, 141 SCRA 65.235o"es v. ;orti#uela, 64 %il. 17' &1'37.

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1. Petitioner

he petitioner may be any interested person concerning the civil status of persons.2$+

2. ?enue

he petition may be filed with the %/ 8/5!9 where the corresponding civil registry islocated. 2$

$. Parties

he civil registrar and all persons affected shall be made parties to the proceeding. 2$0

&. otice and publication are re(uired before the hearing.2$

). he remedy for the correction of the civil status of a person is in %ule 140 which is not asummary but an adversary proceeding. 2&4

ote: Sec. $, %ule 140, re(uires all interested persons who may be affected by the petitionto be made parties.

11. SU--AR PROCEEDINGS UNDER TBE +A-IL CODE

236Rules of Court, Rule 18, Sec. 1.237Ibid.238Rules of Court, Rule 18, Sec. 3.23'Ibid, Sec. 4.24Repu+lic v. =ale"cia, 0o. 32181, arc% 5, 1'86, 141 SCRA 462.

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1. Summr, Pro#ee$in%s un$er the +mil, Co$e

he cases shall be heard by the proper court authori


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&. Procedure

he summary procedure is set forth in certain provisions of the 5amily /ode8Arts.2$2&, 2)42)2, 5/9 as follows:

&.1 A verified petition

A verified petition setting forth the alleged facts and attaching theproposed deed of the transaction involved.2&+

&.2 otice to interested persons

otice shall be given to all interested persons upon the filing of thepetition.

&.$ Preliminary conference

he preliminary conference shall be conducted by the ;udge personally

without the parties being assisted by counsel. After the initial conference,if the court deems it useful, the parties may be assisted by counsel at thesucceeding conferences and hearings.2&

&.& %e(uiring appearance

!n case of nonappearance of the other party, the court shall in(uire intothe reasons why and shall re(uire such appearance, if possible. 2&0

&.)+-parteproceeding

!f attendance is not secured, then the court may proceed e parteandrender ;udgment as the facts and circumstances warrant, but the courtshall endeavor to protect the interests of the nonappearing party.

&.+ Summary hearing

he case shall be heard on the basis of affidavits, documentary evidenceor oral testimonies at the sound discretion of the court.2&

&. estimony

!f testimony is needed, the court shall specify the witnesses to be heardand the sub;ect matter of their testimonies, directing the parties to presentsaid witnesses.2)4

&.0 @udgment

246ail! Code, Article 23'.247Ibid, Art. 243.248Ibid, Art. 244.24'ail! Code, Art. 246.25Ibid.

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he ;udgment of the court shall be immediately eecutory.2)1

12. TRUSTEES

1. si# Con#e"ts

1. Appointment

251ail! Code, Art. 24.

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Gpon a proper petition, a trustee may be appointed to carry into effect the provisions of awill or written instrument.2)2he appointment will be made if the testator omitted in his will Anonresident alien may not avail himself of the same right> such as to appoint a trustee inthe Philippines, and if the appointment is necessary to proceeding would not be of muchbenefit to him.2)$

2. ?enue

he petition may be filed in the %/ 8/5!9 in which the will is allowed if allowed here>2)&ifnot, by the %/ 8/5!9 in the region in which the property or part thereof affected by the trustis situated.2))

$. otice

o publication is re(uired but the appointment is after notice to all persons interested.2)+

&. #ond, inventory and sale of trust estate

Similar to eecutors and administrators, the trustee also files a bond ecept when the courteempts him.2)"e also files an inventory. "e may sell or encumber trust property withcourt approval.2)0

1&. PROCEEDINGS +OR TBE BOSPITALIATION O+ INSANE PERSONS

1. ?enue

he petition should be filed in the %/ 8/5!9 of the place where the person alleged to beinsane is found.2)

2)2%ules of /ourt, %ule 0, Sec. 1.2)$. Ibid, Sec. 2.2)&. #asas v. %epublic, o. '2$)),5ebruary 24, 1+0, 22 S/%A +)2.

253Ibid., Sec. 2254asas =. Repu+lic, 0o. 235'5, e+ruar! 2, 1'68, 22 SCRA 652256Ibid, Sec. 2.257Ibid, Secs. 5 a"d 6.258Ibid, Sec. '.25'Rules of Court, Rule 11, Sec. 1.

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2. Petitioner

he petition is to be filed by the *irector of "ealth when, in his opinion, the commitment toa hospital or other place for the insane is for the public welfare, or the welfare of thealleged insane who in his ;udgment is truly insane and such person or the one in charge ofhim is opposed to the commitment.2+4

$. he court shall provide for the custody of the property or money of the insane until aguardian is appointed.2+1

&. he *irector of "ealth shall file a petition for discharge if the person committed istemporarily or permanently cured, or may be released without danger.2+2

). he Provincial or /ity 5iscal 8Prosecutor9 represents the *irector of "ealth in court.2+$

1. OTBER SPECIAL PROCEEDINGS

1. 'oluntr, Dissolution of Cor"ortions

1. his %ule is no longer relevant. he voluntary dissolution of corporations has beengoverned by Presidential *ecree o. 42A and the provisions of the /orporation /ode,particularly Secs. 11 to 122 thereof.

26Ibid, Secs. 1 a"d 3.261Ibid, Sec. 3.262Ibid, Sec. 4.263Ibid, Sec. 5.

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2. Proceedings have been before the Securities and -change /ommission, but under%ep. Act o. 0, which is the new Securities %egulation /ode, approved @uly 1, 2444,its (uasi;udicial cases have been transferred back to the regular courts. Sec. ).2 of %ep.

Act o. 0 provides:

he /ommission6s ;urisdiction over all cases enumerated under Section ) of

Presidential *ecree o. 42A is hereby transferred to the /ourts of general;urisdiction or the appropriate %egional rial /ourt: Provided, hat the Supreme/ourt in the eercise of its authority may designate the %egional rial /ourtbranches that shall eercise ;urisdiction over these cases. he /ommission shallretain ;urisdiction over pending cases involving intracorporate disputes submittedfor final resolution which should be resolved within one 819 year from theenactment of this /ode. he /ommission shall retain ;urisdiction over pendingsuspension of payments3 rehabilitation cases filed as of $4 @une 2444 until finallydisposed.

$. Section ) of Presidential *ecree o. 42A, mentioned in Sec. ).2 of %ep. Act o. 0above(uoted, enumerates the following cases:

8a9 *evices or schemes employed by or any acts, of th

civil procedure special proceedings

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