feb 28proceedings notes final

7/28/2019 Feb 28Proceedings Notes Final

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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


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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 Proceedingsapply suppletory May involve only one party

Involves 2 or more parties

Initiated by petition

Involves the State against the accused

Initiated by complaint

Except Habeas Corpus, NOT based on a cause of action

Initiated by complaint (but filed in court by Information)

Based on a cause of 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 o AM 8-1-16- Habeas Data o AM

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

Based on an act or omission punishable by law

Criminal Procedure

Ordinary Civil Action A remedy by which a party seeks to establish a status, a right, or a particular fact

A party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary actions shall

be, as far as practicable,

The State prosecutes a person for an act or omission punishable by law

A proceeding wherein a person is prosecuted by the State for acts or omissions committed in violation of penal laws,

and to impose the corresponding penalty provided for by penal laws Governed by the Revised Rules of Criminal

Procedure

Governed by the rules for ordinary civil actions


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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 various

courts 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

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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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 basicautonomous 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 rebellionor 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.

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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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 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

o Note 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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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 propertiesleft by the deceased.


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- 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 deceasedwould be distributed pursuant to the provisions of law or the will of the decedent.

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 deceasedvalue of 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).

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 thesubject matter

Venue:

R73 S1

If the decedent is:

- an inhabitant of the Philippines at the time


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of his death,

o whether a citizen or an alien,


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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 e. File bond equivalent to the value of personal property or lien infavour 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


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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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- 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 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


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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 inthe 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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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

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

o R75 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?


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- 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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o Includes 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

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


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- 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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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

- 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


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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

o Non 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 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 fixinghis 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 distinctlyproved by at least 2 credible witnesses

How to / Who can prove due execution, genuiness?

Pursuant to rules of evidence:

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?


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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

- 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


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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 PresumptionA 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 administration

o 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

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)


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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 oftrust 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 ofdischarging 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

- 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


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- 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 3

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

o party or o assignor of a party

to a case of persons in whose behalf a case is prosecuted

- action is against

o executor or o administrator or o other representative of deceased

person or o person of unsound mind

- subject matter of the action is

o claim or o demand against

estate of deceased person or

against person of unsound mind

- testimony refers too any matter of fact which occurred rd

before the death of such deceased person by

Executor or

person or before such person of Administrator

unsound mind

Rationale: declarant cannot be cross examined, lips


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Can Executor or Administrator be made to testify to

are sealed forever by death

those matters relating to executor by deceased

Purpose: designed to close lips of party plaintiff

before his death?

when death permanently closed lips of party

(Related to Rules on Evidence)

defendant in order to remove from surviving party the temptation to give false testimony and

NO!!!! Because disqualified to testify

possibility of fictitious claims against deceased

Except:

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

- 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)


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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 amountdue 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

estate2. 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

Hence, look at the problem:

- Foreclose - Contingent claim

o Both must be present to be able to

claim deficiency o Pay 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

- 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)


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- 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


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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 o Sale 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

2. Notice to heirs, devisees, legatees

3. Court approval of sale of property of estatea. 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


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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 o Cover expenses for preservation of

the estate- Real Estate (S2)


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o Personal estate insufficient to pay

obligations o Sale of personal estate may injure

business o Testator has not made sufficient provisions for payment of debts, legacies, expenses o

Deceased is under contract to

deed real property to beneficiaries

- (S4)

o When beneficial to heirs, devisees,

legatees, interested persons o Estate of deceased in foreign country is not sufficient to pay debts and

expenses

- (S6)

o Estate 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?

- 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

o The 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


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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 without a will, no heirs, but with property

(G)

GUARDIANSHIP

(Rules 92-97, Guardianship of Incompetents; AM 3- 2-5, Guardianship of Minors)

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 Payment of just

compensation

resides or where the property situated if non-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 Concerns property for public use

Remedies of heir unlawfully deprived (file within 5 years from judgment or else, forever barred):

1. Recover the properties escheated from the


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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)


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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

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


43/102

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,

o In 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:

o Income of estate sufficient for

maintenance of ward o For 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 o Specify cause why sale

is beneficial, order estate to be sold at private or public sale - Original bond to stand as security forproperty 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:


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(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 caseDistinguish 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)

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, unlessthe 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


47/102

- Prejudicial to health, safety, welfare

- Petitioner with history of child or spousal

abuse


48/102



- 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

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


49/102

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 theminor 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

o EXCEPT:

If adopter is biological parent of adoptee

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

o EXCEPT:

If adopter is former Filipino citizen seeking to adopt relative within 4

th

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 4


51/102

th

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

o EXCEPT:

If adopter is former Filipino citizen seeking to adopt relative within 4

th

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 4

- In a position to provide the proper care and support to give the necessary moral values and example to

all his children including the th

civil

child to be adopted degree of consanguinity or affinit5y of

Filipino

- Agrees to uphold basic rights of the child as spouse

embodied under Philippine laws, UN - His or

her government allows the adoptee

Convention on the Rights of the Child, and to

enter his or her country as his or her

to abide by the rules and regulations issued

adopted son or daughterto implement the provisions of this Act

3. Guardian

- Comes from a country with whom the Philippines has diplomatic relations, and - With respect to ward

after termination of

whose government maintains a similarly

guardianship and clearance of his or her

authorized and accredited agency and that

financial accountabilities

adoption is allowed under his or her national laws

ICAA

- Possesses all the qualifications and none of the disqualifications provided therein and in 1. Alien

permanently residing abroad

other applicable Philippine laws 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

Who may be adopted?

time of the application unless

DAA o Adopter is parent by nature of

child to be adopted

1. Any person below 18 years of age who has been administratively and judicially

- If married, his or her spouse must jointly file

declared available for adoption

for the adoption

2. Legitimate son or daughter of one spouse


53/102

- Has capacity to act and assume all rights

by the other spouse

and responsibilities of parental authority under his national laws and has undergone

3. Illegitimate son or daughter by a qualified

appropriate counselling from an accredited counsellor in his or her countryadopter to improve his or her status to that of legitimacy

- Not convicted of crime involving moral

4. Person of legal age if, prior to the adoption,

turpitude

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

- Is eligible to adopt under his or her national

his or her own child since minority

law

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)

o Sa 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)

- 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:


55/102

- Adoptee will use surname of adoptive

parents - Entitle adoptee to successional rights,

equivalent to legitimate child - Grant adoptee rights and privileges of

legitimate child


56/102



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 / DSWD

o 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

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 immed iate

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 beforethe filing of the petition

(R)

RESCISSION/REVOCATION OF ADOPTION

(RA 8552- DAA)

Grounds:


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1. Repeated physical or verbal maltreatment by adopter despite having undergone counselling


58/102



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 incompetencyEffects of Rescission or Revocation of Adoption:

1. Reinstate former name or surname 2. Reinstate former succession rights 3. All rights and privileges

granted by adoption

will be removed 4. Paternity and filiation relationship created between adopter and adoptee shall

likewise be removed

Can adoptive parents file for rescission of adoption?

NO! Because adoption is for the best interests of the adoptee

What then can be the remedy of adoptive parents?

Disinherit the adoptee(H)

HOSPITALIZATION OF INSANE PERSONS

(Rule 101)

(pag nakakita kayo ng tumatawa mag isa at walang dahilan, alam nyo na ang gagawin)

Jurisdiction / venue:

RTC of the place where the insane may be found

Who may file?

Regional Director of DOH

Hospitalization of Insane Persons

Physical and Mental examination of persons Governed by Rule 101 Governed by Rule 28 Special proceeding Mode

of discovery File a petition File a motion Filed by Regional Director of DOH

Any party may avail of

In hospitalization of insane, walang issue, sira ulo lang talaga; sa PME, issue is such PME

Insane Person


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- A person whose condition of the mind is so impaired in function or so deranged as to


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induce a deviation from normal conduct of the person so afflicted

Effect of granting petition:

R101 S3

Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for

the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason

to take proper custody and care for him,

- The court shall order his commitment to such hospital or other place for the insane as may be

recommended by the Director of Health - The court shall make proper provisions for the custody of

property or money belonging to the insane until a guardian be properly appointed

Adverse decision, remedy:

- Record of appeal within 30 days from notice

of judgment or final order

(H)

HABEAS CORPUS

(Rule 102)

+

WRIT OF AMPARO

(AM 7-9-12-SC)

+

WRIT OF HABEAS DATA

(AM 8-1-16-SC)

CONSTITUTIONAL BASIS:

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.

A3 S15

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellionor when public safety requires it.

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.

Habeas Corpus/Writ of Habeas Corpus:


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Habeas Corpus

- is a Latin phrase which literally means, you have the body (Festin, Special Proceedings, p. 146)

What is WRIT OF HABEAS CORPUS?

- Bouviers Law Dictionary defined it as a writ directed to the person detaining another and commanding him to

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


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detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

(Beda Memory Aid in Remedial Law, p. 172)

JURISDICTION/VENUE of HABEAS CORPUS:

- RTC of the place where the detained is

committed - *MTC (see above venue) in the event of absence of all RTC Judges in the place, or if

there is no RTC in that place

o In the above 2, enforceable only within their respective territorial jurisdictions o Returnable in RTC

- CA - Supreme Court

o In the higher 2 courts, enforceable

throughout the Phils o Returnable in CA, SC, any justice or

in RTC

- Sandiganbayan

o Person detaining is a public official

Note the distinctions between the HC, Amparo, Data! (2009 Bar)

(SEE ATTACMENTS)

Writ of Habeas Corpus, under Rule 102, applies to all kinds of illegal restraint (ACTUAL

RESTRAINT)

1. Illegal detention (detention without cause) 2. Detention under invalid law 3. Service of sentence in

excess of what the

law imposes

(Differentiate from AM 3-4-4)

When can the writ of habeas corpus not be issued?

1. When detained under lawful cause

2. In case of invasion or rebellion or when public safety requires it, under A3 S15 of 1987 Constitution

3. When in case of invasion or rebellion, when public safety requires it, for a period not exceeding 60

days, under A7 S18, 1987 Constitution

4. If jurisdiction of the court to try the person

detained appears after the writ is allowed

5. If the person is in custody of an officer under process issued by a court or by virtue of a judgment or

order of a court of record which has jurisdiction to issue the process, render the judgment, or make the

order

6. If the person is charged or convicted of an

offense in the Philippines

7. If the person is suffering imprisonment

under lawful judgment


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8. In case of 3 day detention of a suspect for 3 days without charge, pursuant to S18 of RA93712 aka

Human Security Act

9. When person is serving final sentence

imposed by court

Note that writ of Habeas Corpus is a kind of amparoamparo libertad

- Because it is for the protection of personal freedom / constitutional right against illegal confinement


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Amparo / Writ of Amparo (as differentiated from writ of Habeas Corpus as amparo)

- The constitutional remedy in case of violation or attempted violation to right to life, liberty, security,

committed by public official or employee, or a private individual or entity

Habeas Data

- Constitutional remedy against violation of right to life, liberty, or property of a person, committed by

person or government official tasked with collection of information or data

Remedy in case of adverse decision in Habeas Corpus

Appeal within 48 HOURS!!!

Note that regarding this matter, originally, the Rules of Court says nothing. In the subsequent case of Hui

vs Rodriguez, the period became 15 days from notice of judgment. But in a SC resolution dated January

21, 2001, Rule 41 S3 was amended, and the 48 hour period was stated.

NOTE: Even if there is defect in form and substance in petition for habeas corpus, OK LANG... because

life, liberty is at stakeRemedy in case of adverse decision in writ of amparo / writ of habeas data

Petition for review under Rule 45 raising questions of fact or questions of law, within 5 working days

What are the kinds of amparo?

1. Amparo Libertad / Liberty Amparo

- Amparo for the protection of personal freedoms, equivalent to the writ of habeas corpus

2. Amparo Contra Leyes / Constitutionality

Amparo

- Amparo for the judicial review of

constitutionality of statutes

3. Amparo Casacion / Judicial Amparo

- Amparo for the judicial review of the constitutionality of a judicial decisions made by courts

4. Amparo administrativo / Administrative

Amparo

- Amparo for the judicial review of administrative decisions made by administrative bodies

5. Amparo Agrario / Agrarian Amparo

- Amparo for the protection of peasants rights derived from the agrarian reform laws / processes

Origin of amparo: Yucatan, Mexico, 1941 (to protect as stated in the Mexican Constitution)Mexico, 1941

Stated in the Mexican Constitution, which means to protect

Petition for writ of amparo:

Requirements:

S5- Contents of the petition


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The petition shall be signed and verified and shall allege the following:


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a. The personal circumstances of petitioner

b. Name and personal circumstances of the respondent responsible for the threat, act, or omission, or,

a. if the name is unknown or

uncertain,

i. the respondent may be described by an assumed appellation

c. The right to

a. life, b. liberty, c. and security

i. of an aggrieved party violated or threatened with violation by

1. an unlawful act or omission of the respondent, and

how such threat or violation is committed with the attendant circumstances detailed in supporting

affidavits

d. The investigation conducted, if any,a. specifying the

i. names, ii. personal circumstances,

and iii. addresses of the investigating authority or individuals, as well as iv. the manner and conduct

of the investigation, together with any report

e. The actions and recourses taken by the

petitioner

a. to determine the fate or whereabouts of the aggrieved party and b. the identity of the person

responsible for the threat, act, or omission, and

f. The relief prayed forThe petition may include a general prayer for just and equitable reliefs.

Habeas data

- Information or data written, tends to threaten violation of constitutional right to life, liberty or property,

and may be ordered destroyed by the court

Protection orders / interim reliefs in writ of amparo:

1. Temporary Protection order

2. Inspection order (to inspect premises relative to extrajudicial killings and enforced disappearances )

3. Production order (to produce documents related to extrajudicial killing and enforced disappearance)

4. Witness protection order

Writ of ampa

feb 28proceedings notes final

Documents