special proceedings and remedial law review notes under atty ferdinand tan consolidated notes in...

7/29/2019 Special Proceedings and Remedial Law Review Notes Under Atty Ferdinand Tan CONSOLIDATED NOTES in SPECIAL

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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in

SPECIAL PROCEEDINGS

Notes by: Paul Lemuel E. Chavez

SPECIAL PROCEEDINGS NOTES

Preminary Considerations

Special Proceedings

-Defined by R1 S4 as a remedy by which a party seeks to establish a status, a right, or a particular fact

-

1970 Bar: Distinguish Special Proceedings from Criminal Procedure and Ordinary Civil Action

Special Criminal Ordinary

Proceedings Procedure Civil Action

A remedy by The State A party sues

which a party prosecutes a another for

seeks to person for an the

establish a act or enforcement

status, a right, omission or protection

or a particular punishable by of a right, or

fact law the prevention

or redress of a

A proceeding wrong

wherein a

person is

prosecuted by

the State for

acts or


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omissions

committed in

violation of

penal laws,

and to impose

the

corresponding

penalty

provided for

by penal laws

Governed by Governed by Governed by

special rules, the Revised the rules for

and in the Rules of ordinary civil

absence of Criminal actions

special Procedure

provisions,

the rules

provided for

in ordinary

actions shall

be, as far as

practicable,

apply

suppletory

May involve Involves the Involves 2 or


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only one party State against more parties

the

accused

Initiated by Initiated by Initiated by

petition complaint (but complaint

filed in court

by

Information)

Except Based on an Based on a

Habeas act or cause of

Corpus, NOT omission action

based on a punishable by

cause of law

action

Sources of Special Proceedings:

-R72-109

-1987 Constitution

-RA7160 Katarungang Pambarangay Law

-BP 129 or the Judiciary Reorganization Act of 1980

-RA 7691 or An Act Expanding the Jurisdiction of the MTC (particularly those with respect to gross estate

of the deceased)

-A8 S5 P5, 1985 Constitution

-Administrative Circulars issued by SC

o AM 3-2-5- Guardianship of Minors

o AM 3-4-4- Custody of Minors/HC


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o AM 8-1-16- Habeas Data

oAM 7-9-12- Amparo

-RA 9048 or Correction of Entries in the Civil Registry

-RA 8042

-Jurisprudence

-RA 9262

CONSTITUTIONAL PROVISIONS RELATING TO

SPECIAL PROCEEDINGS

A3 S1


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SPECIAL PROCEEDINGS


No person shall be deprived of life, liberty, or property without due process of law, nor shall any person

be denied the equal protection of the laws.

A8 S1

Judicial Power shall be vested in 1 Supreme Court and in all other courts as may be established by law.

Judicial Power includes the duty of the courts to settle actual controversies involving rights which are

legally demandable or enforceable, and to determine whether or not there is grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the

government.

A8 S5 P5

The Supreme Court shall promulgate rules concerning the protection and enforcement of constitutional

rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the IBP, and

legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure

for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not

diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial

bodies shall remain effective unless disapproved by the Supreme Court.

A6 S30

No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this

Constitution without its advice and concurrence.

A7 S18 P3

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the

factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the

extension thereof, and must promulgate its decision within 30 days from its filing.

A8 S2

The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the variouscourts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5

thereof

No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its

members.

A8 S5


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The Supreme Court shall have the following powers:

1.exercise original jurisdiction over cases affecting ambassadors, public ministers and consuls, and over

petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus

2.review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may

provide, final judgments and orders of lower courts in:

a.all cases in which the constitutionality or validity of any treaty, international or executive agreement,

law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question


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SPECIAL PROCEEDINGS


b.all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in

relation thereto

c.All cases in which the jurisdiction of the lower court is in issue

d.All criminal cases in which the penalty involved is reclusion perpetua or higher

e.All cases in which only an error or question of law is involved

(Others) :

A2 S11

The state values the dignity of every human person and guarantees full respect for human rights.

A2 S12

The state recognizes the sanctity of the family and shall protect and strengthen the family as a basic

autonomous social institution. It shall equally protect the life of the mother and the life of the unborn

from conception. The natural and primary right and duty of parents in the rearing of the youth for civic

efficiency and moral character shall receive the support of the government.

(A3 S13

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of

guilt is strong, shall, before conviction, be bailable on recognizance as may be provided by law. The right

to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.

Excessive bail shall not be required. [?])

A3 S15

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion

or when public safety requires it.

A15 S1

The state recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen

its solidarity and actively promote its total development.

A15 S2

Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the

State.


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A15 S3

The State shall defend:

1.the rights of spouses to found a family in accordance with their religious convictions and the demand

of responsible parenthood

2.rights of children to assistance including proper care and nutrition, and special protection from all

forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.


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SPECIAL PROCEEDINGS


A15 S4

The family has the duty to care for its elderly members but the state may also do so through just

program of social security.

What are the special proceedings?

R72 S1- SEGTARHHCVJCDC

1.Settlement of estate of deceased persons

2.Escheat

3.Guardianship and custody of minors

4.Trustees

5.Adoption

6.Rescission and revocation of adoption

7.Hospitalization of insane persons

8.Habeas corpus

9.Change of name

10.Voluntary dissolution of corporations

11.Judicial approval of voluntary recognition of minor natural children

12.Constitution of the family home

13.Declaration of absence and death

14.Cancellation of correction of entries in the civil registry

EXCLUSIVE?! NO!!!

Certain proceedings not mentioned are considered as special proceedings, such as:

1.Declaration of presumptive death

2.Annulment / nullity of marriage


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3.Naturalization proceedings

4.Liquidation proceedings

5.Corporate rehabilitation

6.Recognition and enforcement of arbitration proceedings

7.Vacation, setting aside, correction or modification of an arbitral award

8.Any application with a court for arbitration assistance and supervision

9.Writ of amparo

10.Writ of habeas data

11.Correction of clerical errors

12.Proceeding allowing illegitimate children to use the surname of their father

13.Declaration of nullity or annulment of marriage

14.Declaration of legal separation

15.Commitment of children

Why?

Because these are proceedings tending to establish a status, a right, or a particular fact

Nature of Special Proceedings:

IN REM!

-Binding upon the whole world

oNote that most special proceedings require publication

Note further that Special Proceedings are not Special Civil Actions, though both are governed by own

rules

Special Proceedings are governed by own rules, EXCEPT:

-When there are no applicable provisions in

the rules, rules on Civil Procedure / Ordinary Civil Actions apply only in a suppletory character

What rule governs special proceedings?

Rule 72-109, Rules of Court


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Exception:

R72 S2

In the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as

practicable, applicable in special proceedings


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SPECIAL PROCEEDINGS


(aka Rules on Ordinary Civil Actions apply suppletorily to Special Proceedings)

-Special Proceedings has its own rules, if there are no applicable provisions, apply Rules on Ordinary Civil

Actions

What are those specific provisions in Civil Procedure which also apply to special proceedings?

1.Rule 4- Rules on Venue

Can the RTC-Manila entertain petition for probate of the will if the deceased died in Quezon City?

YES!!! Because the rules on venue can be waived. Failure to object to improper venue is tantamount to

waiver.

(Special Proceedings in relation to Rule 4)

2.Rule 7 S1- Parts of a Pleading

Note that all of special proceedings are commenced by way of petition

A petition is a pleading

Hence, the need to comply with Sections 4 and 5 of Rule 7

-Verification

-Certification against non forum shopping

Basis: Rule 72 S2

3.Rule 16- Motion to Dismiss

YES!

Basis: Rule 72 S2

4.R33- Demurrer to Evidence

Settlement of Estate of the Deceased, being adversarial in character, is demurrer to evidence allowed?

YES!!!

Basis: Rule 72 S2, the rules on civil procedure apply to special proceedings in a suppletory character.

Jurisdiction


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-Power or authority of the court to hear, decide a case, and implement its decisions

IF the court has no jurisdiction over special proceedings,

-Motion to dismiss can be filed for lack of jurisdiction over the subject matter

o Note, however, that the dismissal is without prejudice

What then will be your remedy?

Refile the petition, as provided for in Rule 16

Can the court dismiss the petition motu proprio for lack of certification against forum shopping?

NO!!!

A motion to that effect needs to be filed, for failure to comply with condition precedent

(S)

SETTLEMENT OF THE ESTATE OF THE DECEASED (RULE 73-90)

What is ESTATE?

An estate is an artificial being created by operation of law which will undertake distribution of

properties left by the deceased.


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SPECIAL PROCEEDINGS


-Distribution, disposition, management of properties left by deceased

-Being a juridical being, it can sue and be sued

o Juridical being with entity separate and distinct from the decedent

RA7160- Barangay Conciliation Law / Katarungang

Pambarangay

For purposes of settlement of estate of the deceased, there is no need to refer the case to the

Katarungang Barangay first! (vda de Borromeo vs Pogoy)

Juridical persons such as estate are not covered by Barangay Conciliation proceedings.

NOTE: Trusteeship and Guardianship does not need to pass Barangay

SETTLEMENT OF ESTATE OF THE DECEASED

Definition:

Settlement of Estate of the Deceased is a conciliation proceeding where the property of the deceased

would be distributed to the provisions of

law or the will of the .

Personal and Real- Totality of Estate of Deceased (GROSS VALUE- value before deductions)

Jurisdiction (BP129 RA7691): Depends upon the gross value of the estate of the deceasedvalueof the

estate prior to deductions of debts, etc

If the gross value of the estate of the deceased exceeds 300k OMM or 400k MM, RTC has jurisdiction

If the gross value of estate of the deceased does not exceed 300k OMM or 400k MM, MTC / MuTC /

MCTC, MuTC in Cities has jurisdiction

1997 Bar: The gross estate of the deceased is 200k, the property is in Pampanga. Determine the

jurisdiction and the venue.

Because the gross value of the estate of the deceased does not exceed 300k OMM, MTC has jurisdiction

(Basis: BP 129 as amended by RA 7691)

Note however, that when it comes to venue, the question is misleading (Property located in Pampanga).


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To answer the question, here goes: As to venue, my answer would depend on whether the decedent is a

resident or non-resident of the Philippines. If the decedent is a resident of the Philippines, whether a

citizen or an alien, the venue shall be the last actual residence of decedent. If the decedent is a non-

resident, venue shall be the place where the estate / property is located. Hence, in the case at bar, if

decedent is a resident, the venue shall be the actual residence of the deceased (pwede Pampanga,

pwede hindi, depende sa facts), but if a non- resident, then Pampanga is the proper venue because that

is where his estate is located.

If filed in the court not with jurisdiction, file motion to dismiss on the ground of lack of jurisdiction over

the subject matter

Venue:

R73 S1

If the decedent is:

-an inhabitant of the Philippines at the time of his death,

o whether a citizen or an alien,


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SPECIAL PROCEEDINGS


his will shall be proved,

or letters of administration granted,

and his estate settled,

in the COURT in the province in which he resides at the time of his death,

and if he is an inhabitant of a foreign country,

-the court of any province in which he had estate.

NOTE: Venue is WAIVABLE

Modes of Settlement of Estate of the deceased:

1.JUDICIAL or EXTRAJUDICIAL

-Judicial- with court intervention

-Extrajudicial- without court intervention

2.PROBATE or NON PROBATE

-Probate- there is a need to prove the will, judicially (or administratively)?

-No need to prove will / intestate testate succession

Kinds of Settlement of Estate of the Deceased:

A. Adjudication of Sole Heirship (R74 S1)

-Extrajudicial settlement, non-probate

-Adjudicated unto himself the entire estate

Requirements:

a.No will / intestate

b.No outstanding debts

c.One surviving heir / sole heir

d.Affidavit of adjudication of sole heirship filed in Office of Register of Deeds


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e.File bond equivalent to the value of personal property or lien in favour of creditors in case of real

property

f.Publication in a newspaper of general circulation once a week for 3 consecutive weeks

Note: In the 2006 Bar Examinations, in legal forms and practical exercises, this question was asked:

Prepare a Draft of Adjudication of Sole Heirship

To answer, follow the contents of Rule 74, in a PUBLIC INSTRUMENT

What is a NEWSPAPER OF GENERAL CIRCULATION?

(Basa vs Mercado)

1.Made within the Courts Jurisdiction

2.Published at regular intervals for determination of news and general information

3.with bona fide subscription list of paying subscribers

4.not devoted to the interest of a particular class

Once a week for 3 consecutive weeks- NOT NECESSARILY 21 days, rather, it is once a week, 3 weeks

consecutively- THIS IS WHAT CONFERS JURISDICTION UPON THE COURT

Remedies of those aggrieved by extrajudicial settlement:

-within 2 years, file a claim against the bond or the real estate

-rescission in case of preterition of compulsory heir tainted with Bad Faith

-reconveyance of real property

-action to annul deed of EJ settlement on the ground of fraud


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SPECIAL PROCEEDINGS


-reconveyance based on implied or constructive trust

-ordinary action against distributees, but not against the bond

When there are 2 or more Heirs,

B.Extrajudicial Settlement of Estate of the Deceased (R74 S1)

Done by means of CONTRACT between the surviving heirs

EXTRAJUDICIAL SETTLEMENT OF ESTATE OF THE

DECEASED

Know all men by these presents:

-----------------------------

-----------------------------

Property:

No.............

S1 to S4 R74

-2 years for those unduly deprived of the estate to file...

-Minors represented by Guardian ad litem for purposes of distribution

o Subject to Rule 74 S4, after settlement and distribution

Requirements: (R74 S1)

a.Decedent died intestate

b.No outstanding debts

c.Heirs are all of age, or if minors, are properly represented

d.Public instrument (notarized contract)

e.Registration with registry of deeds where property is located

f.Publication once a week for 3 consecutive weeks in a newspaper of general circulation


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g.Bond in case of personal property left by decedent who will answer for claim of those unduly deprived

h.Registration of said affidavit of agreement

Protections accorded to those unduly deprived:

a.Publication

b.Bond- can go after it

c.File petition for surrender of your share as far as estate of deceased is concerned

C.Settlement of Estate of the Deceased of Small Value

a.Gross value of estate of the deceased does not exceed 10k

b.Summary judicial adjudication

c.Applies to testate or intestate

d.Available even if there are debts

e.Filed by petition containing allegations of gross value of estate upon hearing not less than 1 months

nor higher than 3 months from the date of last publication or notice

f.Publication in a newspaper of general circulation once a week for 3 consecutive weeks

g.Notice to interested persons

h.Filing of a bond in an amount fixed by court

i.Court order is recorded in the Office of the Clerk of court

j.Order of partition or award is recorded in the proper Registry Office

Before, filed with RTC of last residence

But NOW, due to amendments brought by RA 7691, jurisdiction is now with MTC- PURSUANT to the

RULE ON SMALL CLAIMS (Summary)

Publication- 5k


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SPECIAL PROCEEDINGS


Lawyer- 5k

Appearance fee- 2k

-Parang kulang pa?!

Liabilities of Distributees of Estate (Rule 74 S4)

-Heir or other person unduly deprived of lawful participation in the estate

-Outstanding debts which have not been paid

-Heir or other person is unlawfully deprived of lawful participation payable in money

Properties subject to settlement of estate of the deceased:

REAL AND PERSONAL PROPERTY

-Real property- A415, NCC

-Personal property- A416-417, NCC

o Movables

o Credits

o Bonds

o Deposits

Settlement of Estate of the Deceased

1.Probate of the will- with will

-With necessity of proving, imprescriptible

2.Intestate Estate Proceedings- without will

Jurisdiction- depends on the gross value of the estate of the deceased

Exceeds 300k OMM 400k MM- RTC

Does not exceed 300k OMM 400k MM- MTC

Venue- last residence of decedent, or if a non resident, then where estate may be found


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Last Residence- actual residence

-Kung san permanent

-No 2 residences at the same time

Nature of Probate Proceedings:

a.IN REM- binds whole world, publication as a requirement

Why the need to probate will?

-For reasons of public policy

oR75 S1, stating that no will shall pass either real or personal property unless it is proved and allowed in

the proper court

IF you divide a property outside of probate proceedings, and there is a will, the division is VOID

b.Imprescriptible

In case of intestate estate proceedings, partition, basta kapag may lumabas na nag-iwan pala ng last will

and testament ang decedent, then the probate proceedings shall prevail, and the former shall be held in

abeyance

What is a WILL?

-Formal written disposition of a person allowing for the distribution of his properties and rights

according to his intention, to take effect after his death

Understand the concept in relation to the following:

-Declaratory relief

-Parol evidence rule


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SPECIAL PROCEEDINGS


oIncludes WILLS- the will itself only is the one available, no modification as far as real estate is

concerned

Probate of a will

2 kinds of Will

1.Notarial Will

2.Holographic Will

Obligation of executor to deliver the same 20 days after such death

If he refuses, administrator with a will annexed shall be appointed

(NOTE: NCC provisions)

Hence, failure to comply with NCC requirement is a ground for disallowance of a will

Example: when executed and attested not in conformity of the requisites provided for by law

PROCEDURAL REQUIREMENTS:

I.Custodian to deliver the will to the court within 20 days after knowing of testators death (75 2)

II.20 days after knowledge of death or knowledge of being named executor, executor to present will to

the court having jurisdiction (75 3)

III.Petition for allowance filed (76 1) see below, WHO MAY FILE

IV.

Contents of Petition:

(76 2)

-Jurisdictional facts

-Names, ages, residents of heirs, devisees, legatees

-Probative value and character of the estate

-Name of the person for whom letters are prayed

-Name of the person having custody of the will if not yet delivered to the court

V.Court to fix time and place for proving the will


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VI. Notice to be published 3 weeks

successively (76 3)

VII.

Notice for time and place for

proving

the will to heirs, legatees, devisees

of

testator, executor if not the

petitioner,

co executors not petitioning 20

days

before hearing by mail or 10 days

by

personal service

VIII. Prove Due execution of the Will

-The will was executed in compliance with formalities

-Testator was of sound and disposing mind at the time of making the will

-No vitiation of consent by duress, fear, threats

-Not procured by undue and improper influence or pressure on the part of the beneficiary or of some

other person for his benefit

-Signature of testator is genuine, not procured by fraud or trick, testator


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SPECIAL PROCEEDINGS


intended that what he signed is his last

will

and testatement

IX. Hearing under the following rules: (see:

Rule 76)

Uncontested notarial will

-At least one subscribing witness to testify that the will is executed as required by law

The testimony of at least 1 subscribing witness only if such witness testifies that the will is executed as is

required by law

when none of the subscribing witnesses resides in the province but the deposition of one or more of

them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a

photographic copy of the will to be made and to be presented to the witnesses on his examination, who

may be asked the same questions with respect to it, and to the handwriting of the testator and others,

as would be pertinent and competent if the original will were present

-Outside province, deposition (R76 S7)

if the subscribing witnesses are dead, insane, or none of them resides in the Philippines, the court may

admit the testimony of other witnesses to prove the sanity of the testator and the due execution of the

will. And as evidence of execution of the will, it may admit proof of the handwriting of the testator and

of the subscribing witnesses or of any of them

-Dead, etc, other witnesses can testify (R76 S8)

Uncontested holographic will

-1 subscribing witness who knows the handwriting and signature of testator

-If none, expert testimony may be taken

at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the

signature and the will are in the testators handwriting

in the absence of such witness, and if the court deems necessary, expert witness may be resorted to

Contested notarial will


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-All subscribing witnesses plus notary public

-If absent, sufficiently show as far by testimony

-If all are dead, etc, other witness or expert witness may be availed or presented (Expert witness as

exception to opinion Rule under Rule 130)

all subscribing witnesses and the notary public, if present in the Philippines and not insane, must be

produced and examined, and the death, absence, or insanity of any one of them must be shown to the

court

if all or some of the witnesses are present in the Philippines but outside the province where the will has

been filed, their deposition must be taken

if any or all of the witnesses testify against the due execution of the will or do not remember having

attested to it, or are of doubtful credibility, the will may be allowed if the court is satisfied from the

testimony of other witnesses and all the evidence presented that the will was executed and attested in

the manner required by law

Contested holographic will

-3 witnesses who knows the handwriting and signature of testator

o IMPT: prove signature- or else, ground for disallowance of a will

-If none, expert testimony may be taken

Hence, pag 2 lang, e di petition denied!

allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will

and the signature are in the handwriting of the testator


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SPECIAL PROCEEDINGS


in the absence of any competent witness, and if the court deems it necessary, expert testimony may be

resorted to

Notarial Will

-With attestation clause

oNon compliance therewith, patay ka... may problema ka sa petition

Who may file petition for probate of a will?

1.Testator himself (in case of ante mortem probate)

2.Executor

3.Devisee

4.Legatee

5.Any person interested in a will

6.Any creditor

Filed before MTC or RTC

IF testator is the one who filed, what is the quantum of proof required?

-Testimony niya?

o Pwede

If a will is probated, it is valid as far as due execution is concerned.

Once a decision is made, it is conclusive, and can no longer be questioned

What are the powers of the probate court?

1.Distribute shares

2.Determine who are the legal heirs

3.Issue warrants and processes to secure attendance of witnesses

4.Determine and rule upon issues relating to settlement of the estate, such as administration,

liquidation, and distribution of the estate


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5.Determine the following:

a.Who are the heirs of decedent

b.Recognition of a natural child

c.Validity of disinheritance effected by testator

d.Status of a woman who claims to be the lawful wife of decedent

e.Validity of waiver of hereditary heirs

f.Status of each heir

g.Whatever property in the inventory is conjugal or exclusive property of deceased spouse

h.Matters incidental or collateral to the settlement and distribution of the estate

As a general rule, the probate court has no power to determine issues of ownership, except: (non

conclusive/Disputable Presumption under Rule 131)

a.For including property in inventory without prejudice to final determination in a separate action

b.When all parties are heirs and they submit issue of ownership to the probate court provided that the

rights of the parties are not prejudiced

c.Question is one of collation or advancement

d.When the parties consent to assumption of jurisdiction by the probate court and the rights of third

parties are not impaired

To Determine the following questions:

a.Who are the heirs of decedent

b.Recognition of a natural child


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SPECIAL PROCEEDINGS


c.Validity of disinheritance effected by testator

d.Status of a woman who claims to be the lawful wife of decedent

e.Validity of waiver of hereditary heirs

f.Status of each heir

g.Whatever property in the inventory is conjugal or exclusive property of deceased spouse

h.Matters incidental or collateral to the settlement and distribution of the estate

Grounds for disallowance of a will (important: lumalabas sa Bar):

Rule 76 S9

1.if the will is not executed and attested as required by law

2.if the testator is insane or otherwise mentally incapable to make a will

3.if the will was executed under duress or under the influence of fear or threats

4.if the will was procured by undue and improper influence, on the part of the beneficiary or of some

other person for his benefit

5.if the signature of the testator was procured by fraud or trick, and he did not intend that the

instrument should be his will at the time of fixing his signature

In case of lost or destroyed will, no probate, except as provided in R76 S6: (note this, lumalabas to sa

bar) SECONDARY EVIDENCE as exception to the Best Evidence Rule

1.Execution and validity of the will by the testator be established

2.That the will is proven to have been in existence at the time of the death of testator or is shown to

have been accidently

or fraudulently destroyed during the lifetime of testator without his knowledge

3.Its provisions are clearly and distinctly proved by at least 2 credible witnesses

How to / Who can prove due execution, genuiness?

Pursuant to rules of evidence:


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1.By persons or witnesses present when executed

2.By notary public

3.By any person present during execution of the will

NOTE that proving lost or destroyed will is exception to best evidence rule

-Lost or destroyed will in accordance with R130 S3, prohibiting presentation of secondary evidence

A petition for probate of a will is an initiatory pleading

If the parties subsequently file a petition for letters testamentary or of administration, is it considered as

initiatory pleading?

NO! It is considered as continuation of probate of a will, hence, there is no need for petition against non

forum shopping

Is oral partition valid between surviving heirs?

As amongst the heirs, valid amongst themselves. But in order to bind third persons, for purposes of

registration, the partition must be in a public


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SPECIAL PROCEEDINGS


instrument to be valid as to registration. If not in a public instrument, then not valid as to registration.

Probate of a will,

-There is need for appointment of executor, if with a will

-If no will, then administrator

Can there be administrator in case there is a will?

YES!

In 2 instances:

-When executor refused to accept the trust, or

-The executor is disqualified

Called, ADMINISTRATOR WITH A WILL ANNEXED

Who can be appointed executor or administrator?

Order of preference in appointment of regular administrator or executor:

1.Surviving spouse

2.Next of kin

3.Any person interested in the will, or creditor

4.Any person the court may appoint

Remedies in case of adverse decisions in:

Appointment of regular administrator- APPEAL

-Because appointment is final and executory

Appointment of special administrator- CERTIORARI RULE 65

-Because appointment is interlocutory in character

REPROBATE OF A WILL (note: lumalabas to sa bar)

Rule 77


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-Will probated abroad is not automatically allowed in the Philippines

o Hence, the need for petition for reprobate of a will

How to prove?

-Copy of the will duly probated by court of competent jurisdiction in the foreign country

-Duly allege the law on probate proceedings in the foreign country, allege in the body of the petition for

reprobate, duly authenticated

Requisites:

1.Due execution of the will in accordance with foreign laws

2.Testator is domiciled in a foreign country

3.Will is admitted to probate in such country

4.Foreign court or tribunal is a probate court

5.Law of the foreign country on procedure and allowance of the will

R77 in relation to Rule 39 S48 (Effect of foreign judgment) and Processual Presumption

A probate of will abroad is considered as foreign judgment, hence, the need for petition for reprobate to

be considered binding and enforceable upon our courts

Requisites to be appointed:

EXECUTOR: (Rule 78 S4)

-Named in the will


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SPECIAL PROCEEDINGS


-The will is proved and allowed

-Testator is competent, accepts the trust, and gives bond

ADMINISTRATOR (Rule 79 S2)

-Competent

-Appointed by the court

-Files petition for letters of administrationo Jurisdictional facts

o Names, ages, residences of heirs, creditors

o Probative value and character of the estate

o Name of person for whom letters are prayed

Powers of E or RA (R84 S1-3)

-Have access to, examine and take copies of books and papers relating to partnership in case of

deceased partner

-Examine and make invoices of property belonging to the partnership in case of deceased partner

-Maintain in tenantable repairs, houses, other structures and fences and deliver the same in such repair

to heirs or devisees when instructed to do so by the court

-Make improvement on properties under administration with necessary court approval except for

necessary repairs

-Possess and manage the estate when necessary for payment of debts, for payment of expenses of

administration

As far as Executor or REGULAR ADMINISTRATOR is concerned (N/A to special administrator, who are

disqualified to serve as such? (R78 S1)

To question, file comment or opposition to the petition, if denied, then as far as they are concerned,

decision is final and executory, hence, APPEAL is the proper remedy

1.Minor

2.Non resident


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3.One who in the opinion of the court is unable to exercise the duties of a trust by reason of:

a.Drunkenness

b.Improvidence

c.Want of understanding

d.Want of integrity

e.Conviction of an offense involving moral turpitude

So, lasenggo- disqualified

Drug addict- disqualified (Bakit? Hmmm... pwedeng pumasok to sa improvidence ah... )

Convicted of dishonesty, or with issues about it- disqualified

Convicted of crime INVOLVING MORAL TURPITUDE

What is moral turpitude?

-an act of baseness, vileness, depravity in the private and social duties which a man owes his fellow

men, to society in general, contrary to the accepted and customary rule of right and duty between man

and woman or conduct contrary to justice, honesty, modesty, or good morals (Herrera, p.81)

o basta act contrary to justice, honesty, modesty, or good morals

What are crimes involving moral turpitude?

HINDI LAHAT AH!

Key: basta may PANLOLOKONG INVOLVED (kasi to be Executor or Administrator, involves position of

trust and confidence)

1.estafa


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SPECIAL PROCEEDINGS


2.falsification of public documents

3.perjury

Rape? NO!!!! Ano bang kinalaman ng rape sa pagiging executor or administrator ng estate????!!!

NOTE HOWEVER, na above disqualifications apply only to appointment of REGULAR ADMINISTRATOR,

not to appointment of special administrator.

Removal of Executor or Administrator, GROUNDS: (Rule 82 S2)

-neglect to render accounts within 1 year and when required by the court

-neglect to settle the estate according to the Rules

-neglect to perform order or judgment of the court or duty provided by Rules of Court

-absconding

-insanity, incapability, or unsuitability of discharging trust

NOT ABSOLUTE!

Other grounds:

1.Death

2.Resignation, etc

Special Administrator

Instances when appointed:

1.delay in appointment of executor or administrator

2.delay in appeals in main case

3.when the executor or regular administrator is claimant of the estate he represents

(in case of opposition on appointment/appointment of special administrator, if denied, certiorari is

proper remedy, because order of appointment is interlocutory [R65 rel to R41 S1])

Powers of SA: (80 2)

-possess and charge of goods, chattels, rights, credits, estate


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-preserve the properties

-commence and maintain suits

-sell only perishable properties or properties ordered sold by court

-pay debts only as may be ordered by the court

-submit inventory and render accounting

Requisites in case of Executor or Administrator:

1.File Bond- required

Is there any instance when executor or administrator is exempt from filing bond?

YES!

-When provided by testator in his last will and testament that filing of bond is not needed

Executor or administrator was appointed, here comes heir, now, can the heir file petition for

appointment of his person as administrator?

NO!!!! Unless there is ground for removal of executor or administrator, di pwede basta mag file


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SPECIAL PROCEEDINGS


yung heir ng petition for his appointment as administrator

In case of Adverse Decision- appeal from the order of appointment (pag regular administrator)

Rule 83 INVENTORIES

To be made within not mandatory period of 3 mos from the grant of letters testamentary or letters of

administration (S1)

Articles not subject: (S2)

1.wearing apparel of surviving spouse and minor children

2.marriage bed and bedding

3.provisions and other articles as will necessarily be consumed in subsistence of the family of the

deceased

Question on rentals. Can it be filed by mere motion?

NO!!! Executor or administrator must file action against lessee by way of independent action

-because property is not yet included in

estate of deceased

o Reason why file a claim against 3rdperson by Executor orAdministrator

Can Executor or Administrator be made to testify to those matters relating to executor by deceased

before his death?

(Related to Rules on Evidence)

NO!!!! Because disqualified to testify

Except:

1.When executor is cross examined on those matters

Principle of Dead Mans Statute (Rule 130 S23)- reason for disqualification

REQUISITES (Rule 130 S23):

-Witness is a


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o party or

oassignor of a party

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

-action is against

oexecutor or

o administrator or

oother representative of deceased person or

operson of unsound mind

-subject matter of the action is

oclaim or

odemand against

estate of deceased person or

against person of unsound mind

-testimony refers to

oany matter of fact which occurred before the death of such deceased person or before such person of

unsound mind

Rationale: declarant cannot be cross examined, lips are sealed forever by death

Purpose: designed to close lips of party plaintiff when death permanently closed lips of party defendant

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

fictitious claims against deceased

NOTE: Waivable

If testified to, with right to cross examine


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SPECIAL PROCEEDINGS


If not, then waived

Principle of Statute of Non Claims

-Claim by a person against the estate of deceased which should be made not less than 6 months nor

more than 12 months since first publication of allowance of the will

o Letters testamentary issued, first publication

After such order, allow claimants to file, or else, barred forever, EXCEPT:

-Belated claims (not claim not filed within original period fixed by court, extended for not higher than 1

month from order allowing belated claims)

Claims against the Estate: (relate to Rule 3 S16, Rule 3 S20if dismissed, file under Rule 86)

1.Claim which survives death

a.Arising from contract, express or implied

b.Note S20 R3 in relation to Special Proceedings

c.May be claimed against estate of the deceased

2.Funeral expenses

3.Expenses for last illness of decedent

4.R111 S4- death after arraignment (interrelate the aforesaid provisions)

a.Aka LIABILITY ARISING FROM DELICT

Criminal action- impliedly instituted civil action (Rule 87 in relation to Rule 111, death before

arraignment/after arraignment)

Specific claims against estate (Rule 86 S5):

-For recovery of money not secured by him

-Money claims, debts insured by decedent during lifetime arising from contract express or implied, due

or not due, contingent or not

-Claims for funeral expenses


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-Claims for last illness

-Judgment of money against decedent

-Claims for taxes

-Absolute claims

-Contingent claims

Question regarding the person who died in accident, while yung nabangga niya suffered injuries. What is

the remedy of the latter?

File suit for damages, contingent claim against the estate para not barred by statute of non claims

How to file claim against estate: (Rule 86 S9)

1.File claim before clerk of court, supported by vouchers, receipts, judgment of the case

2.Serve copy thereof on executor or administrator

3.Duly supported by affidavit stating amount due and fact of no offsets

4.If claim is not due or contingent, accompanied by affidavit stating particulars

Note in relation to R68 aka Foreclosure of mortgage


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SPECIAL PROCEEDINGS


Remedies of Mortgagee after death of mortgagor (Rule 86 S7):

3 remedies, avail 1, exclude others na

1.Abandon or waive the security and prosecute his claim against the estate and share in the general

distribution of the assets of the estate

2.Foreclose his mortgage or realize upon his security by action in court making the executor or

administrator a party defendant and if there is a claim for deficiency, he may file a contingent claim

against the estate within the statute of non claims

3.Rely solely on the mortgage and foreclose the same at any time within the period of the statute of

limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other

assets of the estate

In short,

1.Abandon mortgage, prosecute claim against estate

2.Rely solely on mortgage and foreclose any time within period of statute of limitations

3.Foreclose mortgage, file contingent claim against estate of deceased to be able to claim deficiency

a.Pag foreclose lang, and no contingent claim

i.BARRED FROM CLAIMING DEFICIENCY! dapat, foreclose plus file contingent claim to be entitled to

deficiency

-Foreclose

-Contingent claim

oBoth must be present to be able to claim deficiency

oPay wala, wala!

Pag foreclose lang

Pag contingent claim lang

Actions against Estate of the deceased (87 S1)

-To recover real property or interest therein from the estate


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-To enforce lien

-Recovery of damages for injury to petitioner or property

-For revival of money judgment

-Actions for causes which survive

How to file? Requirements (Rule 87 S10)

-Deficiency of assets in hands of E or A

-Deceased had made or attempted to make fraudulent conveyance

-Subject to would be liable to attachment on his lifetime

-E or A showed no desire to file action or fail to institute the same within a reasonable time

-With leave of court

-Bond filed

-Action in the name of executor or administrator

Hence, look at the problem:


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SPECIAL PROCEEDINGS


Actions to be filed by executor or administrator against third person for estate of deceased:

-Person suspected of having conveyed property, ask third person to appear before it and examine him

(87 6)

-To recover property, rights, interests, debts, where there is deficiency or assets in the hands of E or A

(87 9)

-Ask third person with portion of estate of deceased to render full accounting of money, goods, chattel,

etc

Conditions for payment of Claims (Rule 88)

-Order by court of sale or exchange, proceeds to satisfy debts and expenses

-Exhaust personal property of deceased, then the realty, in the following instances:

o Personal estate not sufficient for that purpose

oSale of personalty to the detriment of participants

Case filed against Executor or administrator in another court, and without consent of the probate court,

the executor or administrator entered into compromise agreement. Pwede?

NO!!!

-File claim against estate of deceased muna, and that is the only time that the compromise can be

approved by the probate court

Notice of lis pendens

-Notice with the purpose of notifying subsequent buyers in case of title to or possession of real property

Is notice of lis pendens needed to secure?

NO NEED!!!

-Property is already included in the settlement, secured by probate court

Sale, Encumbrance of Property of Estate: (Rule 89)-

(no property of estate may be sold without court approval)

1.Petition before the court by E or A


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2.Notice to heirs, devisees, legatees

3.Court approval of sale of property of estate a. Pag wala, bawal

Hence, Executor or Administrator cannot just enter into compromise agreements

4.Court order to sell realty to pay debts and legacies

NOTE: Creditors can stop the sale by giving bond fixed by the court to pay debts and legacies

When sale of property of decedent may be effected/instances/requirements: (Rule 89)

-Personal estate (S1)

o Pay debts and expenses of administration

o Pay legacies

oCover expenses for preservation of the estate

-Real Estate (S2)


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SPECIAL PROCEEDINGS


o Personal estate insufficient to pay obligations

oSale of personal estate may injure business

oTestator has not made sufficient provisions for payment of debts, legacies, expenses

oDeceased is under contract to deed real property to beneficiaries

-(S4)

oWhen beneficial to heirs, devisees, legatees, interested persons

oEstate of deceased in foreign country is not sufficient to pay debts and expenses

-(S6)

oEstate acquired on execution or foreclosure sale when beneficial to heirs, devisees, legatees, other

interested persons

Executor or administrator, in case of sale, is required to file written petition setting forth: (R89 S7)

-Debts due from settlement

-Expenses of administration

-Legacies

-Value of personal estate

-Situation of estate

-Other facts showing sale as necessary or beneficial

Requirement for advanced distribution of property:

Rule 90 S1

Distributee to give bond conditioned for payment of debts, funeral expenses, expenses for

administration, allowance of widow, inheritance tax

(E)

ESCHEAT (Rule 91)

What is escheat?


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-Proceedings whereby a decedent who died intestate (without will), and without heirs, but left property,

the latter shall become property of the estate upon his death

Is it the same as reversion (R91 S5)?

-NO

oThe essence, however, is the same, but, reversion is filed by state to recover property of a person

unlawfully acquired in violation of the Constitution, AMLA, Plunder Law, or the Anti Graft law

R91 S1- escheat

By verified petition filed by Sol Gen or Representative, stating the ff matters:

-Decedent died intestate

-No heirs or persons by law entitled to the same

-Decedent left real or personal properties

-Decedent is a resident of the province of last residence or if a non resident, has property in the courts

jurisdiction

Rule 91 S2

Hearing to be conducted not higher than 6 months from entry of order, copy of order to be published

once a week for 6 consecutive weeks in a newspaper of general circulation

Rule 91 S3

Effects of declaration of Escheat:

Resident decedent


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SPECIAL PROCEEDINGS


-Personal estate to be assigned to municipality or city of last residence

-Real estate to be assigned to municipality or city where it may be found

Non resident decedent

-Whole estate to be assigned to municipality or city where found, for benefit of public schools and

charitable institutions and centers in said cities or municipalities

NOTE: Expropriation- different from escheat and revesion (See notes on civil procedure)

Jurisdiction / Venue of Escheat proceedings:

RTC or MTC (depends upon gross value of the estate) of the place where the decedent last resided

before his death or if a non resident, where his estate is situated (Rule 91 S1)

Escheat Expropriation Reversion

Decedent died Payment of just Concerns

without a will, compensation property for

no heirs, but public use

with property

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

1.Recover the properties escheated from the city or municipality

2.Recover proceeds of the sale of the property from the city or municipality (if sold by the city or

municipality)

In case of adverse decision on escheat, Remedy:

-APPEAL (Record on Appeal 30 days- relate to Rules 40 and 41)

(G)

GUARDIANSHIP

(Rules 92-97, Guardianship of Incompetents; AM 3-

2-5, Guardianship of Minors)


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What is guardianship?

-Special proceeding whereby the property of the ward is administered by a person appointed by the

court

Guardian

-A person appointed by court or by law to administer the property of the ward

Jurisdiction and Venue:

In case of Guardianship of minor: (AM 3-2-5 S3)

-Family Court where the minor actually resides or where the property situated ifnon-resident minor (in

relation to RA 8369 aka Family Courts Act of 1997)

In case of Guardianship of incompetent: (Rule 92 S1)

-RTC of the place of residence of incompetent person or if a resident of a foreign country, where the

property or portion thereof is situated

Who may petition for guardianship?

In case of minor: (for purpose of managing affairs or properties)

S2, AM 03-02-05-SC

1.Relative

-Parent

-Guardian


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SPECIAL PROCEEDINGS


-Brother or sister

2.Other person in behalf of minor - Actual custodian

3.Minor himself, if he is 14 years of age or over

In case of incompetent:

Rule 93 S1 (if incompetent is a resident)

1.Relative

2.Friend

3.Other person in behalf of an incompetent who has no parents or lawful guardian

4.Secretary of Health in case of insane person who should be hospitalized or in favour of an isolated

leper

Rule 93 S6 (if incompetent is a non resident)

1.Relative

2.Friend of such person

3.Any person interested in his estate, in expectancy or otherwise

4.Secretary of Health in case of insane minor who needs to be hospitalized

Note that pursuant to the Domestic Adoption Act (S7 DAA), the ward may be adopted by the Guardian

after termination of Guardianship

Kinds of Guardians

1.Natural Guardian- parents of ward

2.Guardian ad litem- appointed for specific purpose

3.Judicial Guardian- appointed to manage affairs or properties of the ward

Who are minors? Incompetents?

Minors:

Any person below 18 years of age


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Incompetents:

-Suffering from civil interdiction

-Hospitalized lepers

-Prodigals

-Deaf and dumb who are unable to read and write

-Of unsound mind, even though with lucid interval

-Not of unsound mind, but by reason of age, disease, weak mind, other similar diseases, cannot take

care of the property without outside aid, becoming an easy prey to deceit and exploitation

Who can be guardians of a minor?

(S16, Rules on Guardianship of minors)

-Parents

-Surviving grandparents or if several, court to select taking into account all relevant considerations

-Oldest brother or sister,

-Actual custodian,

oIn the latter 2, higher than 21 y o, unless unfit or disqualified

-Any other person the court may deem sufficient


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SPECIAL PROCEEDINGS


Duties of a guardian:

-Give bond

-Render inventory

-Faithfully execute duties of trust

-Render accounting of estate and interests

-Settle debts

-Deliver estate, effects, moneys to persons lawfully entitled thereto

-Perform all orders of the court required by him to be performed

-Care and custody of ward, management of estate, or both

-Pay debts of ward out of personal property or income of real property

-Settle all accounts, sue for, receive debts with court approval

-Appear for and represent ward in all actions and special proceedings

-Manage estate of ward without waste, apply income and profits for best interests of the ward

-If income is insufficient for purposes, sell or encumber real estate when authorized by court to do so,

apply proceeds for maintenance of the ward

Requirements for sale or disposition of properties of the ward:

AM 3-2-5 (minors); Rule 95 (incompetents)

-Verified petition stating:

oIncome of estate sufficient for maintenance of ward

oFor benefit of ward that real estate be sold and proceeds used

-If sale beneficial to ward, court to order next of kin and other persons to appear and show cause why

prayer should not be granted

-Hearing of proofs and allegations, refuse or grant prayer

o If beneficial to ward, order sale, proceeds for maintenance of ward and family


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o Specify cause why sale is beneficial, order estate to be sold at private or public sale

-Original bond to stand as security for property appropriated with proceeds, but judge may require

additional bond as condition for granting proceeds of the sale

-Court to invest proceeds of sales and encumbrances

Grounds for termination of Guardianship:

(S25- Minors)

-Ward has come of age,

-Ward died

(97 1- Incompetents)

-Competency of ward is judicially determined

-Guardianship is no longer necessary

-Death of guardian

-Death of ward

Grounds for removal/resignation of guardian:

(S24- Minors; (97 2-Incompetents)

-Guardian becomes insane, or otherwise incapable of discharging his trust

-Guardian becomes unsuitable

-Wasted or mismanaged wards properties


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SPECIAL PROCEEDINGS


-Failed to render accounting or make a return for 30 days when due

Remedies in case of mismanagement of properties:

(S24- Minor; 97 2- Incompetent)

-Ask court for removal of guardian

-Require guardian to surrender properties of ward to person lawfully entitled thereto

-Ward can ask for resignation of guardian

CUSTODY OF MINORS IN RELATION TO HABEAS

CORPUS

AM 3-4-4-SC

The remedy of Habeas Corpus is available in issues regarding as to who between 2 persons (usually,

spouses) is entitled to have custody over a child

-File habeas corpus in such case

Distinguish this from Rule 102, because in Custody of Minors in relation to habeas corpus, the issue is

specific, while Habeas Corpus under Rule 102 extends to all cases of illegal confinement

Jurisdiction/Venue: (S3)

Family Court of the place where the minor resides

(NOTE: Can also be filed with MTC, RTC, CA, SC [?])

Mother and grandparents, or husband and wife. Who has better right to custody of the child?

-In case of children below 7 years old, custody must be given to the mother except if the mother is unfit

because of immorality

Who may file petition for custody of minors?

S2, AM 03-04-04-SC

Any person claiming such right, such as:

(S13)


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1.Both parents jointly

2.Either parent, taking into account all relevant considerations, especially the choice of the minor over 7

years of age and of sufficient discernment, unless the parent chosen is unfit

3.Grandparent, or if several grandparents, grandparent chosen by the minor over 7 years of age and of

sufficient discernment, unless the grandparent chosen is unfit or disqualified

4.Eldest brother or sister over 21 years of age, unless he or she is unfit or disqualified

5.Actual custodian of the minor over 21 years of age, unless the former is unfit or disqualified

6.Any other person or institution the court may deem suitable to provide proper care and guidance for

the minor

Grounds for denial of Petition:

-Existing threat or danger of physical, mental, sexual, emotional violations

-Prejudicial to health, safety, welfare

-Petitioner with history of child or spousal abuse


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SPECIAL PROCEEDINGS


-Habitual alcoholism or drug addiction

-Marital misconduct

-Unfitness of petitioner

Protection orders:

(S17) requiring any person,

1.To stay away from home, school, business or place of employment of the minor, other parent, or any

other party, or from any other specific place designated by the court

2.To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any

person to whom custody of the minor is awarded

3.To refrain from acts of commission or omission that create an unreasonable risk to the health, safety,

or welfare of the minor

4.To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit

the minor at stated periods

5.To permit a designated party to enter the residence during a specified period of time in order to take

personal belongings not contested in a proceeding pending with the Family Court

6.To comply with such orders as are necessary for the protection of the minor

(include those provisional remedies under Rules 57- 61 of the Rules of Court)

(T)

TRUSTEESHIP

(Rule 98)

Trust

-A confidence imposed in one person, called the trustee, for the benefit of another, called the cestui que

trust, with respect to property held by the former for the benefit of the latter

o Will by trustor- trustee to hold property for beneficiary

WILL- LWT, written document


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Here, there is trustor, trustee, beneficiary, the trustee to perform acts in the will of the trustor for the

beneficiary

Jurisdiction/Venue:

(Rule 98 S1)

MTC or RTC depending on the gross value of the estate of the place where the will is probated, or if

a non-resident, where the estate is found

Elements constituting a Trust:

(De Leon, p. 664)

1.Competent trustor and trustee

2.Ascertainable trust res

3.Sufficiently certain beneficiaries

Requisites for trusteeship:

1.Trust reposed between trustor and trustee

2.With sufficiently certain beneficiaries

3.Trust res / subject matter

4.Act to be performed by trustee

5.Beneficiary

6.Work of trustor creating trusteeship

Illustration: father (trustor) deposits money for son in bank, bank being the trustee. Bank cannot release

the proceeds to the son (beneficiary) the money until he turns 20 years old.


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SPECIAL PROCEEDINGS


(A)

ADOPTION

(RA 8552- DAA; RA8043- ICAA; AM 2-6-2- Rules on Adoption)

Adoption

-A juridical act, proceeding in rem, which creates between 2 persons a relationship similar to that which

results from legitimate paternity and filiation

Kinds of adoption:

1.Domestic Adoption (governed by RA 8552)

2.Inter Country Adoption (governed by RA 8043)

Jurisdiction / Venue

1.DA- Family court where the adoptive parents reside

2.ICA- ICAB or the Family Court where the minor resides

Who may adopt? Requirements? Who may be adopted?

DAA

1.Filipino Citizen

-Of legal age

-In possession of full civil capacity and legal rights

-Of good moral character

-Not convicted of any crime involving moral turpitude

-Emotionally and psychologically capable of caring for children

-At least 16 years older than adoptee

oEXCEPT:

If adopter is biological parent of adoptee


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If adopter is the spouse of the adoptive parent

-In a position to support and care for his or her children in keeping with the means of the family

2.Alien

-Possessing the same qualifications as Filipino nationals

-His or her country has diplomatic relations with the Republic of the Philippines

-Living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption

and maintains such residence until the adoption decree is entered

oEXCEPT:

If adopter is former

Filipino citizen seeking to adopt relative within 4th civil degree of consanguinity or affinity

Adopter seeks to adopt LC of Filipino spouse

Married to Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4th civil

degree of consanguinity or affinit5y of Filipino spouse

-Certified by his or her diplomatic or consular office or any appropriate agency that he or she has legal

capacity to adopt in his or her country

oEXCEPT:

If adopter is former

Filipino citizen seeking to adopt relative within 4th civil degree of consanguinity or affinity

Adopter seeks to adopt LC of Filipino spouse


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SPECIAL PROCEEDINGS


Married to Filipino citizen and seeks to adopt jointly

with his or her spouse a relative within the 4th civil degree of consanguinity or affinit5y of Filipino

spouse

-His or her government allows the adoptee to enter his or her country as his or her adopted son or

daughter

3.Guardian

-With respect to ward after termination of guardianship and clearance of his or her financial

accountabilities

ICAA

1.Alien permanently residing abroad

2.Filipino citizen permanently residing abroad

-At least 27 years of age and at least 16 years older than child to be adopted at the time of the

application unless

o Adopter is parent by nature of child to be adopted

-If married, his or her spouse must jointly file for the adoption

-Has capacity to act and assume all rights and responsibilities of parental authority under his national

laws and has undergone appropriate counselling from an accredited counsellor in his or her country

-Not convicted of crime involving moral turpitude

-Is eligible to adopt under his or her national law

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

all his children including the child to be adopted

-Agrees to uphold basic rights of the child as embodied under Philippine laws, UN Convention on the

Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this

Act

-Comes from a country with whom the Philippines has diplomatic relations, and whose government

maintains a similarly authorized and accredited agency and that adoption is allowed under his or her

national laws


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-Possesses all the qualifications and none of the disqualifications provided therein and in other

applicable Philippine laws

Who may be adopted?

DAA

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

adoption

2.Legitimate son or daughter of one spouse by the other spouse

3.Illegitimate son or daughter by a qualified adopter to improve his or her status to that of legitimacy

4.Person of legal age if, prior to the adoption, said person has consistently been considered and treated

by the adopters as his or her own child since minority

5.Child whose adoption has been previously rescinded


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SPECIAL PROCEEDINGS


6.Child whose biological or adoptive parents died, provided, that no proceedings shall be initiated within

6 months from time of death of said parents

ICAA

1.Only a legally free child

Notes:

Correction of simulated birth may be filed simultaneously with petition for adoption

Simulated Birth (note: crime to)

oSa certificate of live birth, inilagay, hindi ang biological parents

-Hence, in correction of simulated birth, make the corrections

Same is true with change of name which can also be filed simultaneously with petition for adoption.

Who are the following?

Abandoned Child

Neglected Child

Voluntarily Committed Child

Involuntarily Committed Child

Dependent Child

Section 3 of the Rules on Adoption (AM 02-06-02)provides for the following definitions:

Abandoned Child

-a child who has no proper parental care or guardianship or whose parents, guardian, or whose parents

have deserted him for a

period of at least 6 continuous months and has been judicially declared as such

Neglected Child- iniiwan sa bahay bahay, sa tapat ng gate (unsure if pertaining to this or to abandoned

child)


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-a child whose basic needs have been deliberately not attended to or inadequately attended to,

physically or emotionally, by his parents or guardian

Voluntarily committed child

-a child whose parents knowingly and willingly relinquish parental authority over him in favour of the

Department

Involuntarily committed child- mga asa Boys Town

-a child whose parents, known or unknown, have been permanently and judicially deprived of parental

authority over him due to abandonment; substantial, continuous, or repeated neglect and abuse; or

incompetence to discharge parental authorities

Dependent Child

-one who is without a parent, guardian, or custodian or one whose parents, guardian, or other custodian

for good cause desires to be relieved of his care and custody and is dependent upon the public for

support

Effect of adoption decree:

-Adoptee will use surname of adoptive parents

-Entitle adoptee to successional rights, equivalent to legitimate child

-Grant adoptee rights and privileges of legitimate child


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IF adoption is rescinded (see below), then revert back to old status before adoption decree

Abandoned / Neglected Child

-Before, file petition for declaration of abandonment

-Ngayon, declaration of abandonment together with adoption may be filed in one petition

NOTE that in adoption: BEST INTERESTS / WELFARE OF THE CHILD

Petitioner needs to prove he is physically, mentally, financially capable to adopt

A person of legal age can be adopted

In case of adoption of minor,

-Biological parent to issue affidavit of consent without which the petition for adoption shall not be

allowed

-Can also join in petition for adoption, petition for change of name designated by minor, using surname

of adoptive parents state in the petition

Inter Country Adoption

-Important that there be diplomatic ties between the 2 countries, or else, petition cannot be granted

ICAB

- Under the Office of the President / DSWDo Asa Legarda / Mendiola, Manila

Annexes to petition for ICA:

-Written and officially translated in English:

1.Birth certificate of petitioner

2.Marriage contract, or, if not married anymore, divorce decree or judgment dissolving the marriage

3.Sworn statement of consent of petitioners biological or adopted children under 10 years of age

4.Physical, medical, psychological evaluation of petitioner duly certified by duly licensed physician and

psychologist

5.ITR or any document showing current financial capability of petitioner


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6.Police clearance of petitioner issued within 6 months following filing of petition

7.Character reference from local church / minister, petitioners employer and a member of the

immediate community who have known petitioner for at least 5 years

8.Full body postcard size pictures of petitioner and his immediate family taken at least 6 months before

the filing of the petition

(R)

RESCISSION/REVOCATION OF ADOPTION

(RA 8552- DAA)

Grounds:

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


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2.Attempt on life of adoptee

3.Sexual assault or violence on the adoptee

4.Abandonment or failure to comply with parental obligations

Jurisdiction / Venue:

Family Court which rendered decree of adoption

Who may file? (ONLY the ADOPTEE)

-Adoptee above 18 y o

-If a minor, with DSWD assistance

-If higher than 18, but incapacitated, assisted by guardian or counsel

When filed?

Within 5 years after reaching age of majority or if incapacitated at the time of adoption, within 5 years

after recovering from the incompetency

Ef

special proceedings and remedial law review notes under atty ferdinand tan consolidated notes in...

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