notes in special proceedings

8/12/2019 Notes in Special Proceedings

1/101

Notes in SpecialProceedings

Lope E. FebleFormer Dean, Mlqu School of Law

The following notes are intended for exclusiveuse of MLQU bar candidates. All Rights

reserved.


2/101

Kinds of Spec. Proceedings

1. Settlement of EstateR73-90

2. EscheatR91 3. GuardianshipR92-97

4. TrusteesR98

5. Adoption and Custody of Minors R99-100[superseded by Adm. 02-6-02, Effective Aug.22, 2002, pursuant to RA 8043 (Inter-CountryAdop.) and RA 8552 (Domestic Adop.)

6. Change of NameR103

7. AbsenteesR107


3/101

KINDS OF SPEC. PRO.

8. Cancellation and Correction of Entries R108,with RA 9048 (Clerical & Typographical Error Law)

9. Habeas CorpusR102

10. Writ of AmparoAM No. 07-9-12 11. Writ of Habeas DataAM No. 08-1-16

(Remedy: Rule 109Appeals in Special Proceedings)

OTHERS:

1. Those actions under the Family Code

2. Those related to Arbitration


4/101

Settlement of Estates 2 ways:

1] Extra-judicial a] Summary, or b] Self-Adjudication by Sole Heir

2] Judicialeither:

a] Testate proceedings; or

b] Intestate proceedings.

Jurisdiction in Jud. Settlement Proceedings

based on the gross value of the estateVenuedeceased last resided or location of

the property.


5/101

Summary settlementR74(EJS)

Rule: No will, No debts, or debts fully liquidated,heirs are all of legal age, or if minor duly represented:

1] execute a deed of extra-judicial settlement of estate(public doc.), or affidavit of self-adjudication; VOID AS

TO HEIRS WHO HAVE NOT PARTICIPATED.

2) a Project of Partition in an action for Partition (R69).

Filed with the Registry of Deeds with the Bond for

personal property, and publication (3x). Note that the settlement is subject to claims within the 2

year period [annotated of the cert.of title]


6/101

Judicial Summary of Estate of Small

Value

Where the value of estate does not exceed P10kthe estate can be adjudicated summarily by thecourt but:

Publication must be made (3x);

Hearing 1 mo. but not more than 3 mos. fromlast publication;

Notice to interested persons;

Bond where personal property is involved.


7/101

Testate or Intestate Proceedings

Gen. Principles

Proceedings in rem.

Writ of Execution is not generally a remedy butcontempt.

Court exercises limited juris., but include, all incidents tosettlement of estate, such as:

1. provisional determination of ownership [for inventorypurposes], subject to separate action;

2. determination of ownership if all heirs submit the issueto the court so long as no rights of third parties areprejudiced;

3. question of advances or collation;


8/101

Gen. principles continued

In jud. settlement proceedings therefore the courthas the power to resolve the following:

1. heirs entitled to the estate;

2. recognition of an illegitimate child;

3. validity of disinheritance; 4. issue of whether a person is a spouse of the

deceased;

5. validity of a waiver of rights to inheritance; 6. whether a property is conjugal or exclusive;

7. other incidental matters for the closure of settlementproceedings.


9/101

Probate Proceedings

NATURE in rem, mandatory, and imprescriptible [asthe right to inherit does not prescribe]. No estoppel.

WHO MAY COMMENCE PROBATE?

Any person interested in the estate of the testator,i.e. heir, devisee, legatee, executor named in the will, creditor.

PERSONS ENTITLED TO NOTICE

Same as above (but as to heirs, only compulsory heirs). Must

be served 20 days if by mail, or 10 days if personal service,prior the scheduled hearing.


10/101

PROBATE

CONTENTS OF THE PETITION 1. jurisdictional facts;

2. names, ages and residences of heirs,

legatees and devisees; 3. value and character of the property of the

estate;

4. name of the person for whom letters areprayed for;

5. if will not yet delivered to court, person in

custody thereof.


11/101

PROBATE

GROUNDS FOR DISALLOWANCE OF A WILL[court can determine only the extrinsic validity of a will,except when the intrinsic defect would render the willineffective]:

1. not executed and attested as required by law; 2. mental incapacity of the testator rendering him incapable

to make a will at the time of executed;

3. duress, fear or threat;

4. undue and improper pressure and influence on the part ofthe beneficiary, or other person for his benefit.

5. signature of the testator procured by fraud or trick and notintended for a will


12/101

EFFECTS OF PROBATE

Once a will is probated, its allowance is conclusiveas to its due execution. It settles the extrinsicvalidity or formalities required of a will, subject

only to appeal.

Note, however, that intrinsic validity may be

inquired by the court as when the intrinsic defectwill render a probate proceedings a uselessexercise, the defect being apparent on the face ofthe will.


13/101

RULE ON REPROBATE Reprobate is a probate of a foreign will duly probated

in a foreign country. For purposes of reprobate a petition must be filed in

the Philippines. In such proceeding it must be prove:

1. testator is domiciled in a foreign country

2. the will was probated in that country by a court ofcompetent jurisdiction

3. law on probate of that country and proof ofcompliance thereof

4. legal requirements in that country for execution ofthe will.

NOTE: the doctrine of processual presumptionapplies in reprobate.


14/101

EFFECTS OF REPROBATE

There are 3 effects pursuant to Rule 77 1. the will is treated as originally probated in

the Phils.

2. letters testamentary or administration witha will annexed will cover the estate in the

Phils.

3. after liquidation, residue of estate found inthe Phils. disposed of in accordance with

law.


15/101

EXECUTORS/ADMINISTRATOR

S; APPOINTMENT

DISQUALIFICATIONS:

1. Minor;

2. non-resident of the Phils.; 3. those who in the opinion of the court are

unfit to execute the duties of the trust due to

drunkenness, improvidence, lack ofunderstanding or integrity, or having been

convicted of an offense involving moral

turpitude.


16/101

ADMINISTRATOR

Appointment of administrator is made when: 1. decedent died without a will

2. the executor has been disqualified for being incompetent,

or refuse the trust, or fails to give a bond.

Rule: The surviving spouse, next of kin or their nominee arepreferred for purposes of letters administration in their

successive order, provided they apply (note: 30 days rule). In

default of such application, any creditor or even strangers

may be appointed by the court.


17/101

OPPOSITION TO LETTERS

TESTAMENTARY OR ADMIN.

RULE:

Any person interested in a will may file his

opposition on any valid grounds. A full

dressed hearing shall be made for purposes

of issuance of letters testamentary or

administration. In the opposition to letters

testamentary, interested person maysimultaneously apply for letters

administration.


18/101

POWERS OF EX. OR ADM.

General Powers:

1.Administrationas to assets of the estate, i.e.Inventory, accounting, possession and repairs ofthe properties, invest, mortgage, dispose.

2. Liquidationpayment of all debts within theperiod allowed; and

3. Distributionas to the residue of the estateto whoever is entitled thereto.


19/101

PROHIBITION/RESTRICTION ON THE

POWERS OF EXE. OR ADM.

The rule is that any disposition of assets of theestate w/o court approval is VOID.

1. cannot acquire even by intermediaries, even by

public sale, property under adm. 2. cannot borrow money w/o court approval.

3. cannot lease prop. exceeding 1 yr.

4. cannot continue business of deceased withoutcourt authority.

5. cannot profit by the increase or decrease of

property under adm.


20/101

SPECIAL ADMINISTRATOR

(R80) Rule: Sp. Administrator is denied the power toliquidate, except when he acts as general

administrator where the executor presented aclaim vs. the estate. His appointment is not

subject to appeal but by certiorari under R65(s.1).

He is appointed where:

1. there is delay in the appointment of ex. oradm., including appeal from such appointment

2. the executor or adm. has a claim vs. the estate.


21/101

GROUNDS FOR REMOVAL OF

EX. OR ADM.

1. failure to render accounts (w/in 1yr from

appointment or as may be required by the court);

2. neglect to settle the estate under the rules;

3. neglect to comply order or judgment or dutyimposed by the rules;

4. when he absconds;

5. insanity; 6. incapability;

7. unsuitability to discharge the trust.


22/101

CLAIMS AGAINST THE

ESTATE All claims against the estate must be filed within the

period fixed in the notice issued by the court, whichshall not be more than 12 mos. nor less than 6 mos.

AFTER THE DATE OF FIRST PUBLICATION.This is the Statute of Non- Claims; otherwise, suchclaim is barred forever, SUBJECT to the followingEXCEPTIONS:

1. Belated claimsfiled w/in 1 mo. from the orderallowing it.

2. As counterclaim in action filed by ex. or admfor:.


23/101

CLAIMS VS. ESTATE

1. money claims, arising from contract, express or implied(whether due, not due, or contingent);

2. claims for funeral expenses;

3. expenses for last sickness of the decedent;

4. money judgment against the decedent.

However, a claim not barred by statute of non claims maynevertheless be barred by prescription.

Note also that the claims under this rule does not cover

those claims which survives the death of the decedent (realactions, those involving rights, interests, possession orownership of real property).


24/101

CLAIMS VS. ESTATE/RULES IN

PAYMENT OF DEBTS

Where the exe. or adm. files a claim, he should givenotice in writing to the court.

If estate is sufficient, all debts paid within the period

provided for such purpose; If will provides spec. property to pay debts payment

according to the provisions of the will;

Property stipulated to pay insuff. or no stipulation is

made, debt paid by personal prop. not disposed of andreal prop. not disposed of.

If heirs, devisees, legatees entered possession of theestate before liquidation, they will pay the debts based

on their contributive shares.


25/101

PAYMENT OF DEBTS

RULE WHERE ESTATE IS INSUFFUCIENT 1. The provisions of the Civil Code on preference of

credits apply.

2. Creditors can run against persons holding

property of the deceased he fraudulently conveyedduring his lifetime where ex. or adm. refuse to fileaction, by seeking leave of leave of court to filesuch action with a bond. The action shall be in the

name of the exe. or adm. However, if the actionitself is vs. exe. or adm. leave of court and bond notrequired.


26/101

ACTIONS THAT MAY BE BROUGHT

DIRECTLY VS. EXE. OR ADMIN.

1. Recovery of real or personal property or anyinterest therein from the estate:

2. Enforcement of a lien thereon; or

3. Action to recover damages from any injury to aperson or property, real or personal.

Therefore, actions personal to them not allowed.

If the action is to recover property fraudulently

conveyed by the deceased, there must be motionpresented and an order to appear for examination beissued by the court against the transferee of the

property.


27/101

DISTRIBUTION

The process of delivering the residue of theestate to all those declared entitled to receive inaccordance with the provisions of the will.

Project of Partition-agreement executed by theheirs which could be the basis of distribution ofthe estate.

If the estate has been adjudicatedpro indivisoheirscan avail of partition under Rule 69.


28/101

REMEDY IN CASE WHERE AN HEIRHAVE NOT RECEIVED HIS SHARE

1. REOPENING OF PROCEEDINGS beforefinality of closure order of the proc. if he was excluded(not a party) in the proceedings ;

2.MOTION TO DELIVER HIS SHARE

if notexcluded but failed to receive his share;

3. REOPENINGif proceedings already closed withinthe prescriptive period (10 years).

4. ACTION FOR RECISSION/ANNULMENTOF JUDICIAL PARTITIONon the ground of lesion(he received value less by at least of what he isentitled( Art. 1098 NCC); action prescribes in 4 years

from date of partition (Art. 1100 NCC);


29/101

REMEDY CONTINUED

5. REINVINDICATORY ACTION AGAINSTCO-HEIRS BASED ON CONSTRUCTIVE OR

IMPLIED TRUST DUE TO FRAUD (prescribes

in 10 years; Lagujum v. Viola), or within 4 yearsfrom discovery of fraudif the heir adversely held theproperty such as obtaining a title and if title isregistered from date of registration (Gerona v. De

Guzman). IF NO ADVERSE POSSESSION,ACTION IS IMPRESCRIPTIBLE (Villamor vs.CA).


30/101

WRIT OF EXECUTION; WHEN ISSUED BY

SETTLEMENT COURT

1. to enforce the contribution of distributive shares vs.heirs, devisees, legatees who held the property of the estatebefore payment of debts;

2. to enforce payment of expenses of partition vs. party notpaying the sum assessed; and

3. satisfy the costsas to persons cited for examination inprobate proceedings.

(THE GENERAL RULE IS THAT CONTEMPT ISTHE GENERAL REMEDY AVAILABLE EXCEPT

IN THE ABOVE 3 INSTANCES)


31/101


32/101

Escheated Property Where

Allocated/ Remedies

To the local Govtunit where the real propertyis located; personal property LGU wheredeceased last resided unless he is non-resident,

for the benefit of public schools, charitable inst.or centers.

Within 5 years, a claim may be filed in the same

court by persons entitled to the estate (recoveryof property or the proceeds thereof if sold, lesscost of administration).


33/101

GUARDIANSHIP(AM 03-02-05, as to minors)

KINDS OF GUARDIANS: 1. Legal; 2. Judicial; or 3. Guardian ad litem

It may either be general or over the ward or property

only.

JURISDICTION

1. If minor, Family Court(RA 8369)

2. Not minor-governed by Rules 92-97 (incompetents

under R92, s.2), RTC 3. Guardian ad litem, where the case is pending.

VENUEwhere minor or incompetent resides.

BONDrequired


34/101

Rule on Publication or Notice

in Guardianship Proceedings

Unlike in other spec. proc. only personal notice isrequired in guardianship proc. to persons named inthe petition who are residents in the Phils. and the

incompetent himself who may be required to appearin court if he is 14 years or over. However, if theincompetent is non-resident, publication is required.

Guardianship may also be ancillary that is onegranted in another country after an originalguardianship has been granted.


35/101

GUARDIANSHIP OVER MINORS

WHO CAN FILE PETITION:

1. A relative; 2. Other person in behalf of the minor; 3.Minor himself, if 14 years or over; 4. DSWD (abandonedchild) or DOH, if insane needing hospitalization

GROUNDS: 1. Death, continued absence or incapacity of parents;

2. Suspension or deprivation of parental authority;

3. Remarriage of surviving parent found unsuitable toexercise parental authority.

4. When best interest of the minor requires it.


36/101

PERSONS WHO MAY BE APPOINTEDGUARDIAN OF MINOR

(in default of their parents in the ff. order )

1. grandparent (if several), court decides for thebest interest of the child;

2. Oldest brother or sister over 21, unless unfitor disqualified;

3. Actual custodian, over 21, unless unfit ordisq.;

4. Any person as may determined by the courtbest interest of the child rule.


37/101

POWERS OF GUARDIAN 1. care and custody of the ward, and management of his

estate [frugally), or the latter only, and apply the proceeds to

the maintenance of the ward;

2. pay debts of the ward;

3. collect debts owing the ward and appear in actions for the

ward;

4. render verified inventory of the assets w/in 3 mos. from

appointment, and upon application of interested persons;

5. render an accounting of property after a year from

appointment and as may be required thereafter.


38/101

CONDITIONS OF BOND

1. to make return of true and completeinventory of assets w/in 3 mos. known to himor possessed by him or other person;

2. faithfully execute the duties of his trust; 3. render true and just acct. of all the asset of the

ward, and all proceeds or interest therefrom;

4. settle his account after termination ofguardianship, and deliver the assets in his handsto person entitled thereto.

5. those that may be ordered by the court.


39/101


40/101

TERMINATION OF GUARDIANSHIP

Guardianship may be terminated:

1. motu proprio by the court; or

2. upon verified motion by those allowed to petition for

guardianship - a) if the ward has come of age;

b) death of ward;

c) marriage or voluntary emancipation of ward(conditional);

d) when ward regains competency.


41/101

IMPORTANT RULE

A GUARDIANSHIP COURT IS NOT IMPOWERED TODETERMINE CLAIMS AGAINST THE WARD. ANY

ACTION FOR SUCH PURPOSE MUST BE INITIATEDIN A SEPARATE ACTION (WITH THE GUARDIANIMPLEADED THEREON). JUDGMENT VS. THE

WARD THEREAFTER RENDERED CAN BEPRESENTED TO THE GUARDIAN FORSETTLEMENT. SO ALSO, QUESTIONS AS TOOWNERSHIP OF PROPERTY UNDER

ADMINISTRATION BY THE GUARDIAN MUST BETHRESHED OUT IN A SEPARATE ACTION, THEGUARDIANSHIP PROCEEDINGS BEING SOLELYFOR THE CARE AND CUSTODY AND PROPER

ADMINISTRATION OF THEWARDSPROPERTY.


42/101

TRUSTEE (R98)

JURISDICTIONRTC VENUE : Jud. Trustwhere will allowed or where property affected is located. BONDrequired Trustee not obligated to pay the debts of the trustor or beneficiary.

The trustee holds legal title over the prop. Beneficiary, holds equitable title. In CONSTRUCTIVE TRUST, there is neither a promise nor fiduciary relation

to speak of and the so-called trustee neither accepts any trust nor intends holdingthe property for the beneficiary. The relation of trustee and cestui que trustdoesnot in fact exist, and the holding of a constructive trust is for the trustee himself,and therefore, at all times adverse. Prescription may supervene even if the trustee

does not repudiate the relationship [mercado v. espinocilla].

CONDITIONS OF BOND


43/101

CONDITIONS OF BOND

(TRUSTEE 1. to make a return containing true inventory

of the estate;

2. to manage and dispose of the estate, andfaithfully discharge his trust according to law

or will of the testator;

3. to render under oath, once a year trueaccount of the property held in trust, and such

other accounts as ordered by the court; and

4. settle his acct. upon termination of trust.

/


44/101

RESIGNATION/REMOVAL OF

TRUSTEE

If trustee resigns, it can be allowed if it appears tothe court that it is proper. In case of removal, apetition must be filed by parties with beneficial

interest in the trust, with notice to the trustee andwith hearing.

His removal may either on any of the ff:

1. essential to the interest of petitioner; 2. insanity;

3. Incapability to discharge the trust;

4. unsuitability.


45/101

ADOPTION- Rule 99-100(Superseded byAM 02-6-02 Effective 8/22/02])

Adoption is now governed by RA 8552 (DomesticAdoption) and RA 8043(Inter-Country Adoption)

Jurisdiction/Venue DA, Family Court where adopter

resides; ICA ICAB or FC where adoptee resides, whichwill turn over the petition to ICAB.

In ICA, only child declared legally available for adoptioncan be adopted. No publication required. DA, non-minors

may be adopted; publication required.

Standard requiredbest interest of the minor rule


46/101

CONSOLIDATION OF PETITIONS

RULE

Under the present law (DAA) three petitions canbe consolidated: ADOPTION, CHANGE OFNAME (Rule 103) AND CANCELLATION

OR CORRECTION OF ENTRIES (Rule 108),provided that all the jurisdictional requirementsimposed are complied with (ADM. M. 02-6-02-SC EFFECTIVE AUG. 22, 2002). Note: the

Local Civil Registrar must be impleaded forpurposes of Change of Name and Cancellationand Correction of Entries.


47/101

RULES ON CUSTODY OF MINORS AND

WRIT OF HABEAS CORPUS IN

RELATION TO CUSPODY OF MINORS Under AM No. 03-04-04 judgment (effective May 15,

2003): a petition for custody of Minors shall begoverned by the following rules:

5 days to file answer; Default applicable; Pre-Trial and Pre-Trial Brief mandatory; Provisional Order Awarding Custody can be issued;

Judgment immediately executory. No appeal allowedunless MR or NT Motion preceded the appeal. 15 days to perfect and appeal.


48/101

CHANGE OF NAME

Rule 103Judicial; RA 9048Administrative RA 9048 covers first name, nickname or clerical or typographical

errors only 103substantial Both have similar grounds for availment HOWEVER, Republic v. Hon. Hernadez laid down the ff. grds. for

103: 1] name is ridiculous, dishonorable or extremely difficult to writeor pronounce; 2] change results as a legal consequence of legitimationor adoption; 3] change will avoid confusion; 4] name has beencontinuously and one has been known since childhood by a Filipino

name and is unaware of alien parentage; 5] change is based on sinceredesire to adopt Filipino name to erase signs of former alienage, all ingood faith and without prejudice to anybody; 6] surname causesembarrassment and the desired change not for fraudulent purpose and

w/o causing prejudice to the public.


49/101

PRIMARY JURISDICTION RULE

RA 9048 now governs change of first name. Itvests the power and authority to entertainpetitions to city or municipal local civil registrars

or consul general. The intent of the law is toexclude from the coverage of Rules 103 and 108change of first name, until and unless an

administrative petition for change of name isfirst filed and denied (SILVERIO VS.REPUBLIC).


50/101

ABSENTEE

Only for purposes of administration over theproperties of the absentee.

NOTE: absentee proceedings may involveappointment of TRUSTEE [S4, R107]

EFFECT OF DEATH OF ABSENTEE


51/101

cancellation/correction of entries

NOTE:

Republic v. Valencia

Lee v. CA

Republic v. Kho


52/101

HABEAS CORPUS

2 subjects:

A. Any form of illegal restraints/detention;

B. Determination of rightful custody in

relation to AM 03-04-04 NOTE:

1. Preliminary citation;

2. Peremptory writ; 3. Discharge or disallowance or writ


53/101

AMPARO/HABEAS DATA

NOTE:

AMPARO involve violation or threat ofviolation of the right to life, liberty or security,

and covers extralegal killings and enforceddisappearances.

H. DATA involve violation or threat ofviolation of the RIGHT to PRIVACY in life,liberty or securityin both, appeal is 5 days directto SC.

H.DATASC, CA, SB has jurisdiction only if

when action concernspublic data.


54/101

Controlling Jurisprudence

The writ of habeas data provides a judicial remedyto protect a personsright to control informationregarding oneself, particularly in instances where

such information is being collected throughunlawful means in order to achieve unlawful ends.There is no determination of administrative,

civil or criminal liability in amparo andhabeas data proceedings [Rodriguez vs. Macapagal-Arroyo].


55/101

AMPARO/H.DATA

The writ of amparo, particularly, should not issue whenapplied for as substitute for the appeal or certiorariprocess, or when it will inordinately interfere with theseprocesses. The writ will not also be issued to protect

concerns that are purely property or commercial.Neither is it a writ that we shall issue on amorphous anduncertain grounds. Consequently, the Rule on the Writ of

Amparoin line with the extraordinary character of thewrit and the reasonable certainty that its issuance

demandsrequires that every petition for the issuance ofthe writ must be supported by justifying allegations offact. [Tapuz vs. Del Rosario, 554 SCRA 768(2008)]. Itcannot be based on speculations.


56/101

AMPARO/H.DATA

The writs of amparo and habeas data will NOTissue toprotect purely property or commercialconcerns nor when the grounds invoked in

support of the petitions therefor are vague ordoubtful - employmentconstitutes a property rightunder the context of the due process clause of the

Constitution [Manila Electric Company vs. Lim,632 SCRA 195(2010)]


57/101

SPECIAL PROCEEDINGSMCQS

e ru e s t at t e estate s a not e


58/101

distributed prior to the payment of all

charges to estate. What will justify

advance distribution as an exception?

a. The specific property sought to be distributed

might suffer in value.b. The creditors and distributees agree to the

advance distribution.

c. When the majority of the charges against theestate have been paid.

d. The estate has sufficient residual assets and the

distributees file sufficient bond.

Barry was appointed as the administrator of


59/101

Barry was appointed as the administrator of

the estate of Billy. The heirs of Billy sought

the removal of Barry due to his alleged

adverse interest to that of the estate. The court

subsequently issued an order of removal.

What is the remedy of Barry?

a. Petition for certiorari under Rule 65

b. Petition for review on certiorari

c. Appeald. Motion for reconsideration

Wh h f ll i h


60/101

Who among the following has no

standing to file a petition for writ of

habeas data?

a. The second cousin of the aggrieved party

b. The mother-in-law of the aggrieved partyc. The grandparents of the aggrieved party

d. The spouse of the aggrieved party

M j i t d d i i t t f th


61/101

Mojo was appointed administrator of the

estate of Jojo. The heirs of Jojo entered into a

project of partition and pursuant thereto, Mojowas obligated to deliver the distributive shares

of the said heirs. However, Mojo failed to do

the same. What is the remedy of the heirs?

a. Move for execution under Rule 39b. Move for the revocation of the project of partitionc. File an action for contempt under Rule 71 on the

ground of disobedience to a lawful order of the courtd. Move for the removal of the appointed administrator

Badong filed a petition for writ of amparo against


62/101

Badong filed a petition for writ of amparo against

Badang in relation to his daughter Bedings

involuntary disappearance. Badong alleged that

Badang was Bedings employer, who, days beforeBeding disappeared, threatened to get rid of her at

all costs. On that she took steps to ascertain

Bedings whereabouts. What is the quantum of

evidence required to establish the parties

respective claims?

a. Substantial evidence for Badong; preponderance of evidence

for Badangb. Clear and convincing for bothc. Substantial evidence for both

d. Preponderance of evidence for Badong; clear and convincingevidence for Badang

The following are not duties of a


63/101

g

guardian condition upon his bond,

except:

a. Teach the ward to become a responsible

member of society.b. Provide for the proper care, custody, and education of

the ward.

c. Ensure the wise and profitable investment ofthe wards money.

d. Collect compensation for his services.

Whi h i h d f


64/101

Which court issues the decree of

adoption in inter-country adoption?

a. The RTC where the adoptee resides

b. The foreign court of the country of the prospectiveadoptive parents

c. The RTC where the properties of the adoptee

are locatedd. The RTC where the adopter resides

M was appointed as administrator of the estate of Y


65/101

M was appointed as administrator of the estate of Y.

During the prescribed period of filing claims against

the estate, Z filed his claim. Despite the objections of

the heirs of Y, M did not contest the claim. What isthe remedy of the heirs?

a. There is no other remedy, only M as the

administrator can object to the claim of Z.

b. They should move for the removal of Mbefore they can submit their own contest.

c. They can force M to file a contest.

d. They should submit their own contest to the claim of Z.

Matin filed a petition for appointment as regular


66/101

administrator of his fathers estate. Tinmar, his sister,

moved for dismissal of said petition contending that

the parties, who are members, of the same family,have not exerted earnest effort toward a compromise

prior to the filing of the petition. Should the motion

be granted.

a. No, an earnest effort toward a compromise is not required.

b. Yes, such earnest effort toward a compromise is requiredbefore filing any case relating to family matters.

c. No, such earnest effort toward a compromise is not requiredin special proceedings.

d. Yes, the ground relied upon is jurisdictional.

The personal estate of Agaton was


67/101

The personal estate of Agaton was

declared escheated on May 24, 2012.

To whom will these personalproperties be assigned?

a. The city or municipality where the properties of X are

located

b. The city or municipality as the judge may choose asrecommended by the Solicitor General

c. The city or municipality where X last residedd. The city or municipality of the known heirs of X

May be subject to Inter Country


68/101

May be subject to Inter-Country

Adoption?

a. Any Filipino citizen and of legal age

b. Any Filipino citizen, whether a minor or of

legal agec. Only a Filipino citizen and a minor

d. Only a Filipino citizen who must be a minor

and a legally-free child


69/101

Tope is a creditor Timon. Tio filed a

guardianship proceedings for the

person and property of Timon. What

is the remedy of Tope to enforce his

money claim against Timon?

a. File a claim before the guardianship court.

b. File an ordinary case against the ward in a court of generaljurisdiction.

c. File a counterclaim in the guardianship proceeding.

d. File an ordinary case against the guardian in a court of generaljurisdiction.

Which of the following claims


70/101

Which of the following claims

survive the death of the decedent and

need not to presented as a claimagainst the estate?

a. Claims for damages arising from quasi-delictb. Funeral expenses

c. Contingent money claims arising from a contract

d.

Unenforced money judgment against the decedent,with death occurring before levy on execution of theproperty

Blossom died intestate and Bubbles was


71/101

appointed as administrator. Thereafter, a

will was discovered in Blossomsbelongings. Which of the following is not

correct?

a. Testate proceedings take precedence over intestateproceedings.

b. It will be revoked once the new will has been

admitted to probate.c. The letters of administration shall be revoked

automatically.

d. The will must be probated first.

In escheat proceedings, how many years


72/101

p g y y

is the prescriptive period within which

the heirs of the subject property may file

their respective claims?

a. 5 years from the delivery of the property to themunicipality

b. 5 years from the delivery of the order of escheat tothe heir

c. 5 years from the entry of order or decision of escheatd. 3 years from the receipt of the order of escheat by the

heirs

In th it f p int i li f


73/101

In the writ of amparo, interim relief are

available to the parties. Which of the four

interim reliefs is available not only to thepetitioner but also to the respondent?

a. Temporary Restraining Order

b. Witness Protection Order

c. Production Orderd. Permanent Protection Order

How should a criminal action and a


74/101

petition for writ of amparo, both

arising the same facts, be treated?a. The action filed later shall be dismissed.

b. The petition for the writ of amparo shall take

precedence and the criminal action filedthereafter shall suspended.

c. An amparo petition is criminal in nature.

d. When the criminal action is filed after theamparo petition, the latter shall beconsolidated with the first.

A writ of habeas corpus was issued by the


75/101

p y

RTC of Manila against GA. During the trial, it

was proven that there was indeed unlawful

detention. JC, the person unlawfully detainednow asks for damages before the same court.

Is the action for damages valid?

a. No, because there can be no damages claimed in habeascorpus cases.

b. Yes, because it is within the jurisdiction of the court whichissued the writ.

c. No, because the court issuing the writ is a court of limitedjurisdiction.

d. Yes, because the court issuing the writ is the proper court todetermine the issue on recovery of damages.

Mario, a 10-year old minor was adopted by the


76/101

, y p y

spouses Luigi and Maria. For repeated

physical abuse and attempts on his life, Mario

decided to have decree of adoption rescinded.

Where should he file his petition for rescind

the decree of adoption?

a. The same court which issued the decree of adoption.

b. The court where the adopter resides.

c. The court where the properties of the adoptee arelocated.

d. The court where the adoptee resides.

Arnel filed a petition for a writ of amparo but


77/101

p p

was denied relief. She now question the denial

of the petition for review on certiorari under

Rule 45 before the Supreme Court claiming

that the lower court failed to appreciate the

facts of her case. Which of the following

statement is correct?a. The supreme court cannot take cognizance of the appeal as

Rule 45 is limited to questions of law.

b. The proper remedy is to file petition for certiorari before the

Supreme Court under Rule 65.c. There is no appeal allowed under the Rule on the writ of

Amparo.

d. All of the above.

After filing the petition for the settlement of the estate of


78/101

g p

his parents, Hughes also filed an action for reconveyance

of title to a parcel of land against his brother Godfrey.

According to Hughes, Godfrey forged the signature oftheir late parents to make it appear that they sold the

land to his when in fact they did not, thus prejudice

Hughes legitime. Godfrey moved to dismiss the action

on the ground that the dispute must be resolved in theestate proceedings. Should the motion be granted?

a. Yes, questions of collation should be resolved in thesettlement proceedings, not in a separate civil case.

b. Yes, otherwise there shall be a waste of time and clogging ofcourt dockets.

c. No, the court in estate proceedings cannot decide the issue ofownership of title.

d. No, the filing of the separate action is proper, but the estateproceeding must be suspended meantime.

Makabayan was appointed as the administrator of

J li t t A id f hi ti i th


79/101

Julians estate. Aside from his properties in the

Philippines, Julian has a number of real properties

located in the United States. Makabayan wishes toexercise his powers of administrator over the

properties in the US. Can makabayan exercise such

powers?

a. No, Makabayan is a Filipino and can only exercise suchpowers in the Philippines.

b. No, beacause an administrator can only exercise his powersover the assets of a decedent found within the state or country

where the letters of administration were granted.

c. No, because the administrator can exercise his powers overproperties only.

d. No, because the administrator can only exercise his powers ofreal properties of the deedent.


80/101

In a habeas data processing, Mando, the

respondent, wished to clarify some facts

alleged in the petition on the ground that the

same are vague. Which of the ff. is not correct?

a. He must file a motion to dismissb. He must file a motion for bill of particulars.

c. Only a.

d. Both a and b.

X was born in Manila. In 2008, he


81/101

migrated to Cebu City and decided to

reside therein permanently. He wanted to

correct some clerical errors in his birth

certificate. Where should X file his

petition.

a. Clerk of the Sharia district court

b. Registrar General

c. Petition-receiving civil registrar

d. Consul General

Tanting file a petition for the writ ofh b i h h b d


82/101

habeas corpus against her husband

Toning in order to have custody of their

minor daughter Teling. Tanting,however, failed to personally appear at

the pre-trial. Which of the ff. is correct?

a. The case shall be dismissed, unless his counsel or a dulyauthorized representative appears in court and proves a validexcuse for the non-appearance.

b. The case shall not be dismissed since the best interest of the child

is at stake.c. The case shall be dismissed for lack of interest of the petitioner.d. The case shall not be dismissed but the respondent may present

his evidence ex-parte provided he files an answer.

Mabantot Ramirez is frequently insulted by


83/101

Mabantot Ramirez is frequently insulted by

his classmate because of his first name. Tired

of the humiliation he always experience, hedecided to approach Atty. Juan to get the

latters advice. If you are Atty. Juan, what legal

advice can you give to Mr. Ramirez?

a. File a petition with the RTC

b. File a petition under Rule 108

c. File a petition with the city civil registrar

d. None of the above

Atari borrowed money from Aris in 1998 as


84/101

evidenced by a contract of loan. Atari died in

2009. In the settlement of Ataris estate, the

court ordered that all claims against the estatemust be filed from May 2009 to November

2009. Aris filed his claim on June 2009. can

Aris recover from the estate?a. Yes the claim was filed well within the statute of non-claims.

b. No, because money claims should be against the administrator.

c. No, because the period to collect has already prescribed.

d. Yes, money claims should be recovered against the estate andwithin the statute of non-claims.

MCQ


85/101

MCQ

O J 1 2010 M A di d f l l i h


86/101

On June 1, 2010, Mr. A died after a long struggle with cancer.He was born in 1923, in Cebu City. He moved to Manila whenhe was 20 years old. By the time he was 50 years old, he had

become a wealthy man, and had houses in Manila, Cebu, Davao,and Caticlan. He retired in 2000 in Davao. He would often visithis other spouses. When he died, he was childless, and had noother living relative, all of whom had predeceased him. Thegovernment is seeking to file a petition for escheat. Where

should it be filed, assuming he is a citizen and resident.a. His residence at the time of his death.

b. Any of the places where his properties are located.

c. Any of the places where he resides.

d. The place where he last resided.

"A" wants to file a petition for guardianship


87/101

"A"wants to file a petition for guardianshipover "B" who is an incompetent. He lives in

Davao, but his guardian lives in GeneralSantos. B is the legal owner of properties inCebu and Tacloban. Where should it be filed?

a. His residenceb. The residence of the guardian.

c. The place where any of his properties is

located.d. Anywhere in the Philippines.

Helen was born in Muntinlupa City. Upon


88/101

p y p

reaching the majority age, she decided that shenow wants to change her first name fromHelen to "Helena", which is the name she hasbeen using since birth and in school. Whereshould Helen, a resident of Makati, file her

petition?

a. RTC-QC

b. RTC-Muntinlupa City

c. LCR-QC

d. LCR-Muntinlupa City.[doctrine of primaryjurisdiction].

Juan, a resident of Bulacan, died on Jan. 1, 2011 in Manila. On Feb. 1,


89/101

J , , J , ,2011, his will was delivered by Simeon, the custodian, to the clerk ofcourt of RTC-Bulacan. On Feb. 4, 2011, Mario instituted inestateproceedings over Juans estate with RTC-Manila. On Feb. 5, 2011,

Romeo filed a petition for probate of Juans will with RTC-Bulacan.Mario moved to dismiss the petition in RTC-Bulacan since he filed apetition earlier in RTC-Manila. Which court should settle the estate andwhy?

a. RTC-Manila. The petition filed by Mario was ahead of Romeos

petition.

b. RTC-Bulacan. Mario already submitted to the jurisdiction of the courtwhen he filed a motion to dismiss the petition.

c. ETC-Manila. Juan died in Manila.

d.

RTC-Bulacan. Jurisdiction of RTC-Bulacan already vested upon thedelivery of the will of Simeon.

Which of the ff is NOT a special proceeding?


90/101

Which of the ff. is NOT a special proceeding?

a. A petition for recognition and enforcement of

a foreign arbitral award under the Special ADRRules.

b. A petition for the issuance of a Writ of

Habeas Corpusc. A petition for the Issuance of a writ of

Kalikasan

d. A petition for declaration of nullity ofmarriage.

Which of the ff is appealable?


91/101

Which of the ff. is appealable?

a. An order directing administrator to take action

to recover amount due to estateb. An order granting the petition for Writ of

Habeas Corpus

c. An order directing the inclusion of items inthe inventory

d. An order appointing a special administrator

Does a plaintiff in a case for damages arising from quasi-delict


92/101

Does a plaintiff in a case for damages arising from quasi delictagainst defendant who died during the pendency of said case,have the right to intervene in the special proceedings for the

settlement of the estate of said deceased defendant?a. Yes, because such plaintiff is a "person interested in the estate"

b. Yes, because such plaintiff is like a creator with money claim whois allowed to take part in the estate proceedings by filing a notice

of claim.c. No, because he fails to meet the requirements in that the interest

is merely contingent or inchoate.

d. No, because he has to wait until after he has secured a favorable

judgment at which time he can file a notice of claim in the estateproceedings

Which of the ff CANNOT be ventilated in the


93/101

Which of the ff. CANNOT be ventilated in theprobate court or in a special proceeding instituted forthe purpose but should be adjudicated in an ordinarycivil action:

a. Determination of who the heirs are

b. Resolving the filiation of illegitimate children of the

deceased.

c. Adjudication of claims for damages arising from tortcommitted by the deceased while alive

d. Recovery of ownership and possession of estateproperty

An absentee, aged 50 years at time of his disappearance, shall


94/101

, g y pp ,

not be presumed dead for the purpose of opening hissuccession till after lapse of:

a. Five years if he disappeared after the age of seventy-five years.

b. Ten years.

c. Five years if he has been in danger of death under certaincircumstances ad his existence has not been known.

d. Two years, if he has been in danger of death under certaincircumstances ad his existence has not been known.


95/101

Which of these is NOT a judgment in rem?

a. Probate will

b. Annulment of marriage

c. Adoption

d. Judgment in ejectment cases

On January 24, 2010 Sandra Mison was reportedbd d i S M M il b id ifi d


96/101

abducted in Sta. Mesa, Manila by unidentified men.Knowing that she was involved with human rights

group, her mother immediately filed a petition for Writ ofAmproin the RTC of Manila on suspicion that theabductors are members of the military intelligenceknown as ISAFP who were always casing their residencein Diliman, Quezon City. The petition shall be:

a) Dismissed for being an improper remedy; b) Dismissed for being speculative, the ground relied

upon being based on mere suspicion; c) Granted and the writ issued requiring ISAFP to

file a return; d) Dismissed, the proper remedy being Writ of

Habeas Corpus.

In his desire to rid Pasay City of beggars, drug dependents and vagrants theCit M d d th d d d b ht t th it dit i


97/101

City Mayor ordered them rounded up and brought to the city auditoriumwhere they were feed, clothed and lectured about their problems. They werealso asked whether they wish to stay in the citys welfare home, the BahayKanlungan, to take up formal education to which they all agreed. One year

later, the parents of Jose and Samson, both minors, who were doing good atthe Bahay Kanlungan surfaced and filed a petition for habeas corpusfortheir release claiming that they were illegally detained thereat. Which of thefollowing is correct?

a) The petition is proper, Jose and Samson being minors whose custody

must be exercised by their parents;

b) The petition should be dismissed there being no illegal detention and theact of the city mayor was an exercise of police power;

c) The petition should be dismissed, one year had elapsed therefore the rightof action has prescribed;

d) The petition should be denied, the custody taken by the city governmentis to secure the safety and welfare of the children whose parents has grosslyneglected their children.

Renato was absent for two years and his whereaboutsunknown His wife Rosa and three children failed to locate


98/101

unknown. His wife, Rosa, and three children failed to locatehim despite efforts exerted for six months. In the meantime,the businesses he left continue to suffer losses in the handsof his wife who, out of sadness and anger started to attendparties and dating any man who caught her eyes. If you areamong the creditors of Renato, what appropriate action

would you take?

File a petition for declaration of absence of Renato in theRTC; File a petition for guardianship over the property of

Renato;

File a petition for receivership over the property of Renato; File a petition for absence of Renato with appointment of

trustee in the RTC.

Jake was born with Filipino parents. His birth


99/101

J p pcertificate, however, show that his nationality wasChinese, although his three brothers are allregistered as Filipinos. Which of the followingproceedings would allow correction of hisnationality from Chinese to Filipino?

Petition for correction of entries under Rule 108;Administrative proceedings for correction of his

birth certificate under the clerical or typographicalerror law (RA 9048);

Naturalization proceedings;

Petition for amendment of birth certificate.

Marissa, a widow, and her two (2) children, both girls, aged 9 and 12years old reside in Olongapo City To survive she worked as


100/101

years old, reside in Olongapo City. To survive, she worked asprostitute in a brothel at night, leaving her children alone at night.Realizing the danger to life and morals of her granddaughters,

Fernando, filed a petition for habeas corpusin the Family Court ofOlongapo city, who after summary hearing issued the writ. However,prior to the issuance of the writ, Marissa brought her children toSamar. Which of the following is correct? The writ cannot be enforced because the petition was filed by the grandfather

who has no legal personality; The writ can be enforced because being a grandfather he has the legal standing

to protect the life and morals of his grandchildren;

The writ was improperly issued because as a mother, Marissa is vested by lawwith the right to custody to the exclusion of Fernando, the nature of her being

immaterial as it was for their survival; The writ issued by the Family Court of Olongapo city cannot be enforced in

Samar as it is only enforceable within the judicial region of such court.

Ariel filed a petition for declaration of nullity of marriage againstMarian under Article 36 of the Family Code, claiming that


101/101

Marian under Article 36 of the Family Code, claiming thatMarians continued dating with several men while they aremarried remain unstoppable and may bring children to theirmarriage sired by unknown men. This clearly manifest that

Marian is suffering from serious and incurable psychologicalincapacity. Since they have three (3) minor children. Ariellikewise prayed that custodypendent liteand permanent custodybe granted to him. Which of the following is correct?

The matter of custody is a special proceeding which must be

initiated separately. The issue of custody of children is deemed automatically

submitted in a petition for declaration of nullity of marriage underthe Family Cod.

The prayer of such provisional and permanent custody is notgoverned by the rules of special proceedings but by ordinary civil

actio. Unless otherwise disqualified to take custody, the prayer of Ariel

for custody whether provisional or permanent is subordinatedwith the right of Marian and therefore it must await the outcomeof the petition

notes in special proceedings

Documents