04 Remedial Law (SpecPro) [second revise]

December 30, 2017 | Author: Emile Justin Cebrian | Category: Will And Testament, Probate, Intestacy, Adoption, Legal Guardian
Share Embed Donate

Short Description

it's almost done...


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

(This work is based on Atty. Gerard Chan’s syllabus for the Special Proceedings subject as taught in FEU-IL. Notes in red are opinions of the review lecturer,1 of authors2 on the subject, or of the reviewee. Cited provisions are from the Rules of Court unless otherwise provided.)

SPECIAL PROCEEDINGS R72 (subject matter & applicability of general rules) Meaning & scope of special proceedings 1. Special proceeding, defined (R1, S3[c]): remedy by w/c a party seeks to establish – (a) Status (b) Right (c) Particular fact 2. Scope (S1[a]-[n]): [CATCH-AGED-SHARC] - Change of name - Absence & death; declaration of - Trustees - Constitution of family home - Hospitalization of insane persons - [Judicial] approval of voluntary recognition of minor natural children - Guardianship & custody of children - Escheat - [Voluntary] dissolution of corporations - Settlement of estate of deceased persons - Habeas corpus - Adoption - Rescission & revocation of adoption - Cancellation of correction of entries in the civil registry J. Herrera adds: liquidation, corporate recovery, & arbitration Cases: (a) Vda. de Manalo vs. CA – Art. 222, CC (i.e. the “earnest efforts” rule) applies only to ordinary civil actions & not to special proceedings (b) Natcher vs. CA – usually, in special proceedings, no formal pleadings are required (XPN: where the statute expressly provides otherwise); also, the remedy is granted generally upon application/motion Nature of special proceedings Case: Tabuada v. Ruiz – special proceedings are NON-CONTENTIOUS in nature (i.e. do not depend on the will of an actor, but on a state/condition of things/persons not entirely w/in the control of the parties interested)  Implication: failure to consummate a compromise agreement/amicable settlement does not justify dismissal (w/c is to be ordered "only in the extreme case where the termination of the proceeding is the sole remedy consistent w/ equity & justice") Applicability of rules on civil actions (S2) – absent special provisions + as far as practicable


1. Extrajudicial (R74 S1) 2. Summary (R74 S2) [re: small value]

1 Justice Magdangal De Leon 2 Dean Ed Vincent Albano, Justice Magdangal De Leon, Justice Oscar Herrera


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

3. Judicial (R73, 75-90) [i.e. through letters] Overview of procedure [A] >No will >No debts >Extrajudicial settlement >Distribute to heirs [B] >With will >Whether there are debts or not >Probate >Issuance of letters testamentary >Inventory/accounting >Entertain claims against estate, if any >Pay debts, expenses of administration, taxes, etc. >Distribute to heirs [C] >With will >With debts not exceeding P10K >Summary settlement [D] >Affidavit of self-adjudication R73 (venue & process) Jurisdiction, venue; meaning of residence Jurisdiction: RTC… (NOTE: Threshold; if gross value of estate ≤ P200K/P400K[MMLA] = MTC!) Venue: … of province where decedent – 1. Resided @ time of death (if residing in PH) Cases on residence: (a) Garcia Fule vs. CA – residence = physical presence in a place & actual stay thereat, continuously & consistently; “residence,” as used in rules re: settlement of estate, contemplates not legal residence (i.e. domicile) but actual, bodily residence (b) San Luis vs. San Luis – unlike in election law where residence = domicile, in settlement of estate, residence ≠ domicile (c) Cuenco vs. CA – residence affects venue; it is not a matter of jurisdiction 2. Had his estate (i.e. any province where any part of the estate is) (if residing outside PH) Limited jurisdiction of probate court; exceptions GR: Case: Camaya vs. Patulandong – jurisdiction of probate court = LIMITED to the settlement & adjudication of properties of the deceased; it cannot extend to collateral matters (e.g. questions of title/ownership) XPN: Case: Coca vs. Borromeo – 1. Interested parties = all heirs; or 2. Question is one of collation or advancement; or 3. Parties consented to assumption of jurisdiction & rights of 3rd persons, not impaired Re: claims for or against conjugal partnership (S2; cf. Arts. 103, 104, 130, 131, & 132, FC) 1. Inventory 2. Administration One spouse died in [in]testate proceedings of deceased spouse 3. Liquidation 4. Payment of debts Both spouses died Liquidation in [in]testate proceedings of either R74 (summary settlement of estates) – judicial proceeding wherein, w/o appointment of an executor/administrator, & w/o delay, the competent court summarily proceeds to: 1. Value the estate 2

[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

2. Ascertain debts & order payment thereof 3. Allow the will, if any 4. Declare his hairs and/or legatees/devisees 5. Distribute the net estate Extrajudicial settlement by agreement; two-year lien 1. Requisites: (a) No will (b) No debts (c) All heirs are of legal age (or, if minors, represented by duly authorized reps.) 2. How done: DOCUMENT OF PARTITION* (public inst., filed w/ Register of Deeds [RoD])  If sole heir: by AFFIDAVIT* (also filed w/ RoD) – SELF-ADJUDICATION! *+BOND: (a) Amount = value of personal prop. involved, as certified under oath (b) Conditioned upon payment of any just claim that may be filed NOTE: Documentary & bond reqs. must be done simultaneously! * TWO-YEAR LIEN (S4, cf. S5) – if it should appear w/in the period of the lien that an heir or other person has been deprived of lawful participation in the estate, or that the estate has unpaid debts, the court w/ jurisdiction over the estate may order: (a) Contribution from distribution (i.e. distributees contribute to payment of debt), or (b) Execution against bond/sale of realty of decedent, or (c) Both (a) & (b) NOTE: If on the date of expiration of the lien, the person entitled to file claim is… - A minor, or - Mentally incapacitated, or - Residing outside PH … he/she is given 1 YEAR from removal of disability to present his/her claim! (S5) [+after EJP, heir(s) should affect PUBLICATION of same in a newspaper of gen. circ.] 3. If heirs cannot agree: (a) Institute a special proceeding for JUDICIAL ADMINISTRATION OF THE ESTATE (Grounds: good reasons – case-to-case basis!); or (b) File an action for PARTITION (cf. R69) Remedies against extrajudicial settlement [CRAP!] 1. Contribution fr. distribution, execution vs. bond/sale of decedent’s realty (see prev. page) 2. Reopening by intervention w/in reglementary period (cf. R19) Case: Jerez vs. Nietes – the “better practice” for a party interested in a probate proceeding to set final liquidation aside is to have the case reopened by proper motion w/in the reglementary period instead of instituting an [independent action ↓] 3. New action to annul settlement (annulment of title & reconveyance!) w/in regle. period Case: Francisco vs. Rojas – re: reglementary period(s) – (a) If resulting from fraud: 4 YEARS from discovery of the fraud  “Discovery” = deemed to have taken place Most commentators, J. De Leon included, deem this period abandoned by the SC per Amerol vs. Bagumbaran and Caro vs. CA, among others (overturning Gerona and Pedrosa). HOWEVER, since Francisco – a 2014 case – makes mention of the 4year period rule, I figured I’d include it here, as well. (b) If based on implied/constructive trust: 10 YEARS from alleged fraudulent registration or date of issuance of cert. of title over the property at issue  If plaintiff or person enforcing the trust is in possession: IMPRESCRIPTIBLE! (in effect an action for quieting of title, w/c does not prescribe) 4. Petition for relief (R38, S 1, 3-6) (see discussion on CivPro) Q What is the remedy, if any, when land has passed to an innocent purchaser for value?


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

: A: Action for DAMAGES vs. heirs responsible for fraudulent exclusion (PEZA vs. Fernandez) Summary settlement of estates of small value (i.e. where estate’s gross value ≤ P10K) (S2)  As distinguished from extrajudicial settlement per se – SUMMARY SETTLEMENT OF ESTATES EXTRAJUDICIAL SETTLEMENT OF SMALL VALUE Does not require court intervention Requires court intervention Value of estate is immaterial Gross value of estate ≤ P10K Allowed in both testate & intestate Allowed only in intestate succession succession Proper only when there are no outstanding Proper even if there are debts (the court debts of the estate at the time of will make provisions for payment thereof) settlement Instituted by any interested party & even Can be resorted to only at the instance (& by a creditor of the estate, w/o consent of by agreement) of all the heirs all the heirs R75 (production of will, allowance of will necessary) Probate, mandatory  WHY? Art. 838, CC (cf. S1) – no will shall pass either real or personal property UNLESS PROVED & ALLOWED IN ACCORDANCE W/ RoC! Probate, proceeding in rem → Case: Alaban vs. CA – w/ the corresponding publication of the petition for probate, the court's jurisdiction extends to all persons interested in the will (or in the settlement of the estate of the decedent) R76 ([petition for] allowance/disallowance of will) Jurisdictional requirements for probate of will (S2) 1. Jurisdictional facts (a) That a person died leaving a will (b) Residency w/in territorial jurisdiction of the court @ time of death (c) Leaving property w/in territorial jurisdiction, even if non-resident @ time of death 2. Names/ages/residences of heirs/legatees/devisees 3. Probable value & character of properties of the estate 4. Name of person for whom letters (testamentary/of execution) are prayed 5. If the will has not been delivered to the court: name of person w/ custody of same NOTE: No defect in the petition (i.e. re: above reqs.) shall render void the… - Allowance of the will; or - Issuance of letters What happens after the filing of the petition? (S3-5) 1. PUBLICATION OF NOTICE OF HEARING  3 weeks successively, in a newspaper of general circulation in the province 2. PERSONAL/INDIVIDUAL NOTICE - Heirs BY MAIL (deposited @ post office at least 20 DAYS before hearing) - Dev./Leg. or PERSONALLY (at least 10 DAYS before hearing)  Case: De Aranz vs. Galing – individual notice to known legatees/devisees = NOT a jurisdictional requirement in the probate of a will (only a procedural one, for expedience/convenience) 3. WITNESS REQUIREMENT(S) UNCONTESTED CONTESTED Notarial 1 WITNESS is enough ALL subscribing witnesses &


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

NOTARY [+OTHER PERSONS under certain conditions, e.g. where witnesses are dead, insane, or residing outside PH (S8)] AT LEAST 1 WITNESS who knows AT LEAST 3 WITNESSES who handwriting & sig. of the testator know handwriting of testator If there are none: EXPERT TESTIMONY! [+if the court deems necessary] Holographi c Where testator him/herself = petitioner: TESTATOR HIM/HERSELF must CONTESTANT has burden of affirm genuineness & due execution disproving genuineness & due ex. Re: probate of lost wills (S6) – the ff. must be proved: 1. Execution & validity of the will 2. Will was: (a) In existence at the time of death of the testator, or (b) Fraudulently/accidentally destroyed in his lifetime w/o his knowledge 3. Provisions are distinctly proved by at least 2 credible witnesses Case: Rodelas vs. Aranza – a photocopy of a lost/destroyed holographic will may be probated because comparison can be made w/ the standard writings of the testator! Scope of inquiry of probate proceeding GR: Only the extrinsic validity of a will (i.e. genuineness & due execution) XPN Cases (a) Ajero vs. Co – the probate court, in exceptional instances, may declare : : invalid certain provisions of a will that it upholds as extrinsically valid (b) Maninang vs. CA – where a will appears, on its face, intrinsically void Grounds for disallowance (S9) – Case: Ajero vs. CA – grounds are EXCLUSIVE! 1. Non-compliance w/ legal formalities 2. Re: testamentary capacity: insanity/mental incapacity of testator @ time of execution 3. Re: due execution: (a) Duress/fear/threats (b) Undue influence (c) Fraud/trick re: signature of testator (d) Mistake, or lack of intention that the instrument be his will or signed What a person contesting allowance of a will should do (S10) 1. State grounds in writing 2. Serve copy/copies on petitioner/other interested parties What happens if the will is approved, i.e. no ground for disallowance exists (S13) 1. Court issues a certificate of allowance, w/c is attached to the will 2. Both the will & the certificate are filed/recorded by the clerk of court 3. If the will devises real property: will & cert., recorded in RoD of province where lands lie R77 (allowance of will proved outside PH; administration of estate thereunder)  Same effects AS IF THE WILL WAS ORIGINALLY PROVED & ALLOWED IN PH! R78 (letters testamentary & of administration, when and to whom issued) 1. EXECUTOR: nominated by the testator in his/her will 2. ADMINISTRATOR: appointed by the court re: (a) Intestate estate (b) Testate estate, where… - No executor was named at all - Executor designated = incompetent, or refuses the trust, or fails to give bond Executors (& administrators) hold the estate of the decedent as a trustee! Qualifications (S1)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

1. Of legal age 2. Resident of PH 3. Competent, i.e. to whom S1(c) is inapplicable (not unfit – in the opinion of the court – to execute the duties of his/her trust by reason of drunkenness, improvidence, want of understanding/integrity, conviction of an offense involving moral turpitude) Order of preference in appointment of administrator (S6) 1. SURVIVING SPOUSE, or NEXT OF KIN, or BOTH (@ court’s discretion) – or to SUCH [other] PERSON AS [the former] REQUESTS TO HAVE APPOINTED* 2. ONE OR MORE OF THE PRINCIPAL CREDITORS* (where those in [1] are incompetent/unwilling, or neglected to apply for admin./request that admin. be granted to another person w/in 30 DAYS after death of decedent) 3. SUCH OTHER PERSON AS THE COURT MAY SELECT (in absence of [2]) [*common element = competence & willingness to serve!] Case: Uy vs. CA – granted that the probate court cannot arbitrarily disregard preferential rights of surviving spouse to administration, but if such person enjoying preferential rights is UNSUITABLE, the court may appoint another person  [e.g. adverse interest of some kind/hostility to those immediately interested in the estate] R79 (opposing issuance of letters testamentary, petition & contest for letters of admin.) Interested party (S1) – “any person interested in a will”  Case: Tayag vs. Tayag-Gallor – “interested party” = one who would be benefited by the estate (e.g. heir; one w/ a claim against the estate like a creditor); interest must be material and direct, not merely indirect or contingent ∟ Thus, where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact w/c has not been established, or worse, can no longer be established, the interest of said person is contingent only, & does not make him/her an interested party (here, an illegitimate child who petitioned for letters of administration is still an interested party notwithstanding the fact that judicial recognition can no longer be done, the parent-decedent being dead, as filiation can still be established by proving voluntary recognition!) R80 (special administrator) Cases: (a) Heirs of Castillo vs. Gabriel – - Special administrator, defined: representative of a decedent appointed by the probate court to care for & preserve the estate UNTIL AN EXECUTOR or GENERAL ADMINISTRATOR IS APPOINTED - Appointment lies in the sound discretion of the probate court  Implications – > Qualifications → Manungas vs. Loreto – the law is silent as to the qualifications of a sp. admin.; thus, the question of whether a person is qualified falls w/in the sound discretion of the court! > Number of sp. admins → Matias vs. Gonzales – the court, in its sound discretion, may appoint several special co-administrators (jointly exercising powers of one special administration)! > How to contest → not by appeal (but as this is an issue involving the exercise of discretion, surely certiorari [R65] will lie) > Removal → Co vs. Rosario – likewise discretionary! (b) De La Cavada vs. Butte, Ozaeta vs. Pecson – appointment = denial of the power to appoint regular admin. pending appeal from allowance/disallowance of will [↓]


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

Circumstances warranting appointment of special administrator (S1) 1. Delay in granting letters by any cause (incl. appeal from allowance/disallowance of will) 2. Executor/administrator = also a claimant against the estate he/she represents Powers and duties of special administrator (S2) 1. Take possession/charge of the goods/chattel/rights/credits/estate of the deceased & preserve the same for the executor/administrator afterwards appointed 2. Commence & maintain suits 3. Sell such perishable/other properties as ordered by the court 4. Pay such debts of the deceased  Case: Liwanag vs. Reyes – for purposes of paying debts of the decedent, a special administrator may be made a defendant in a foreclosure suit R81 (bonds of executors and administrators) Amount, discretionary, i.e. in such sum as the court may direct (S1) Purpose: to safeguard the estate! Conditions of the bond 1. Inventory 2. Administer (& pay all debts, etc.) 3. Account of his/her admin. to the court (w/in 1 YEAR & @ ANY TIME REQ’D) For exec./adm. 4. All other orders of the court (S1) When no bond or add’l bond is needed (S2) (a) NO BOND – if testator so provides (b) ADD’L BOND – change in circumstances or other sufficient cause 1. Inventory For sp. adm. 2. Account for estate as received by him/her WHEN REQ’D by the court (S4) 3. Deliver to exec./adm. R82 (revocation of administration; death, resignation, removal of executors/admins) Revocation of administration (S1) – where, after letters of administration were granted on the estate of a decedent as if he/she died intestate, DECEDENT’S WILL IS PROVED & ALLOWED! Effects of revocation – 1. Powers of the administrator cease 2. Erstwhile administrator: (a) Surrenders the letters to the court IMMEDIATELY (b) Renders his/her account w/in SUCH TIME AS THE COURT DIRECTS 3. Proceedings for issuance of letters under the will commences Removal of executors/administrators; grounds (S2) 1. Neglect to: (a) Render account & settle estate according to law (b) Perform order/judgment of court (c) Perform duty expressly provided by RoC 2. Absconding, insanity, incapability/unsuitability to discharge the trust Cases: Lim vs. Diaz-Millares, Padilla vs. Jugo – grounds are not exclusive as removal falls w/in court’s sound discretion (e.g. exec./adm. may be removed for unfitness/unsuitability) Effects on previous acts (S3) – lawful acts = VALID (as if there had been no revocation, etc.) Powers of newly-appointed executor/administrator post-removal of previous one (S4) – same!  BUT an authority granted by the court to the former executor/administrator for the sale or mortgage of realty may be RENEWED in favor of such person w/o further notice/hearing R83 (inventory & appraisal. provision for support of family)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

Case: Garcia vs. Garcia – a court w/c takes cognizance of [in]testate proceedings has jurisdiction to determine WON prop. is part of the estate, & thus to be included in the inventory Period (S1) – w/in 3 MONTHS after his/her appointment GR: Question re: title to property cannot be passed upon on testate or intestate proceedings XPN: Provisional inclusion in inventory – Cases (a) Guingguing vs. Abuton – where one prays merely for inclusion/exclusion : from the inventory of the property, in w/c case the probate court may pass PROVISIONALLY upon the question w/o prejudice to its final determination in a separate action (b) Cuizon vs. Ramolete – if the properties in question are indisputably part of the estate, well & good, but if there is a dispute, the parties have to resort to an ordinary action for a final determination of their conflicting claims R84 (general powers & duties of executors & administrators) Powers & duties; incidents thereto [ALD] 1. ADMINISTRATION Case [re: incidents to administration] s: (a) Vasquez vs. Porta – handle & marshal assets of the deceased S3 – retention of estate to pay debts & expenses of administration (b) Chua Tan vs. De la Rosa – re: marshaling, to bring action as necessary (c) Tambunting vs. San Jose – manage estate wisely, in businesslike manner S1 – if deceased is a partner, access to partnership books & property S2 – duty to maintain bldgs. in tenantable repair [re: degree of diligence; continuing business of deceased] Wilson vs. Rear – (a) Ordinary diligence is required; want of w/c opens admin. to liability (b) Re: continuing business in w/c deceased was engaged in @ time of death: administrator requires a court order, absent w/c he has no authority (even if he is in GF!) and is liable for all the losses incurred thereby, w/o right to receive profits [re: lease] San Diego vs. Nombre – (a) Lease = ACT OF ADMINISTRATION!  Thus, no need for prior judicial authority & approval [NO SPA needed for an admin. to lease realty for 1+ year(s)!] (b) Administrator & agent, distinguished ADMINISTRATOR AGENT Appointed by the court; representative of the court, the Answerable only to his/her principal heirs, & creditors of the estate Requires bond before entering into No bond requirement his/her duties Acts are subject to specific Acts, limited only to those allowed provisions of law & orders of the by the principal (by powers of appointing court attorney, etc.) 2. LIQUIDATION Case: Flores vs. Flores – pay debts of the deceased + determine assets & liabilities


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

3. DISTRIBUTION (R90 S1) – after all debts & expenses have been paid, distribute net estate among known heirs/devisees/legatees & all other interested persons Conflict of interest Cases: (a) Jaroda vs. Cusi – an administrator is not permitted to deal with him/herself as an individual in any transaction concerning property of the estate (b) Mananquil vs. Villegas – per Art. 1646, CC (cf. Art. 1491), execs./admins are prohibited from being lessees (personally or through another) of estate prop. In sum: puwedeng magpaupa, pero hindi puwedeng umupa! R85 (accountability & compensation of executors & administrators) Duty to account  Cases: Joson vs. Joson, Tumang vs. Laguio – CANNOT BE WAIVED! 1. The whole of the estate [+proceeds of so much as is sold] (S1)  Implications: exec./admin gains/suffers – (a) NO profit from increase in value of any part of the estate (b) NO loss from decrease in value of same w/o exec./admin’s fault 2. Excess when any part of the estate is sold for more than its appraisement What?  Exec./admin is not responsible for loss if sale has been justly made (S1-5) 3. Income from the realty used by him (S4) 4. Waste (S5) – i.e. where, due to neglect or unreasonable delay… (a) Value of estate decreases, or (b) Unnecessary costs/expenses accrue, or (c) Person interested in the estate suffers loss [+] NOT accountable for debts due decedent uncollected w/o fault of exec./admin! When? W/in 1 YEAR from receiving letters (testamentary/of administration) & AS THE (S8-9) COURT MAY REQUIRE until the estate is wholly settled! Charges and expenses of the administrator [i.e. executor’s/administrator’s fees] (S7) 1. NECESSARY EXPENSES* 2. COMPENSATION FOR SERVICES* (a) P4/day, or (b) Commission (upon value of estate disposed by him) – - 2% of the first P5K - 1% ≈ >P5K, ≤P30K - ½% ≈ >P30K, ≤P100K - ¼% ≈ >P100K * GREATER SUM may be allowed if: > Estate is large > Settlement was attended w/ great difficulty > Required high degree of capacity on the part of the executor/administrator Case: Rodriguez vs. Silva – (a) Amt. of fees = discretionary upon probate court; unappealable (but certiorari-able!) (b) GR: Being a lawyer is not by itself a factor in assessing an administrator's fee XPN: It should be considered when the administrator was able to stop what appeared to be an improvident disbursement of a substantial amount w/o having to employ outside legal help @ additional expense to the estate 3. STIPULATION IN THE WILL RE: COMPENSATION GR: Deemed full compensation! XPN: Executor/administrator renounces claim under stipu. by written inst. filed in court Improper charges


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before


(a) Sison vs. Teodoro – expenses incurred by an executor/administrator for the filing of a bond do not constitute a proper charge against the estate (b) Uy Tioco vs. Imperial – fees for the attorney of an executor/administrator are the latter’s personal liability (XPN: if beneficial to the estate & reasonable, the executor/administrator is entitled to reimbursement)

R86 (claims against the estate) Purpose – to protect the estate of deceased persons  (Case: Estate of Olave vs. Reyes) Period to file claims (i.e. STATUTE OF NON-CLAIMS)  ≤12 MOS., ≥6 MOS. from date of 1st publication of notice (Case: Santos vs. Manarang) Case: In re: Estate of De Dios – the statute of non-claims supersedes the statute of limitations (as far as claims against the estate are concerned!) Cases: (a) Afan vs. De Guzman – extension of statute of non-claims; grounds: - Application therefor - Cause shown why permission should be granted  The ff. are not sufficient causes: > That one was negotiating w/ one of the heirs for payment > That for 4-5 months, one did nothing to present his/her claim - Extension ≤1 MONTH (b) Barredo vs. CA – extension begins from date of court order allowing same! (c) Heirs of Pizarro vs. Consolacion – the range specified in the statute of nonclaims is intended to give the probate court the discretion to fix the period for the filing of claims; period so fixed = MANDATORY! Effect of failure to file w/in period (S5) GR: BARRED FOREVER! XPN: Where claims vs. estate may be set forth as counterclaims in any action that the executor/administrator may bring against the claimants Nature of claims (S5) 1. Money claims arising from contract 2. Funeral expenses 3. Re: last sickness 4. Money judgments Cases: (a) Gutierrez vs. Barretto-Datu – "claims" = debts or demands of a pecuniary nature w/c could have been enforced against the deceased in his/her lifetime & could have been reduced to simple money judgments (incl. those founded upon contract) (b) Cases re: “… from contract” - Aguas vs. Llemos – excludes those sourced in delict or tort - Madan vs. Garcia – implied contract principle  [i.e. includes obligations arising from law & quasi-contracts] (c) BPI vs. Concepcion & Hijos – a creditor w/ a claim (secured by mortgage!) against the deceased has the ff. options: - Abandon security & share in the estate - Foreclose, secure deficiency judgment, prove deficiency judgment vs. estate - Rely upon security alone (d) Imperial Insurance vs. David, Stronghold vs. Republic – where decedent is a solidary debtor (e.g. when there is a surety), a creditor has two options: [1] file an action vs. surviving debtor(s) (or surety); or [2] claim vs. estate of the decedent Procedure (S1, S3+, S9-10) 1. Notice to creditors (S1)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

2. Publication of notice to creditors (S3) – 3 successive weeks… (a) … in a newspaper of general circulation in the province, and (b) … of posting in [number] public places in [place] - 4 ≈ province, and - 2 ≈ municipality where decedent last resided 3. Filing of claims w/in statute of non-claims (S2, S9) (a) Deliver affidavit + vouchers to clerk of court, serve copy on exec./admin (b) Exec./admin files an answer w/in 15 DAYS from service of copy of the claim 4. Trial (S9) (upon filing of answer or expiration of time to file one) Attorney’s fees Case: Salonga Hernandez & Allado vs. Pascual – GR: Executor/administrator = primarily liable for attorney's fees (see previous pages) XPN: If executor/administrator refuses to pay the attorney, he/she may file: 1. An action vs. exec./admin in the latter's personal capacity 2. A petition in the [in]testate proceedings, praying for payment of attorney's fees as an expense of administration (w/ notice to all heirs & interested parties) R87 (actions by & against executors & administrators) Rule re: actions by executors/administrators – executors/administrators may sue upon ANY CAUSE OF ACTION w/c accrued to decedent during his/her lifetime (Case: Bayot vs. Sorbito) Rules re: actions against executors/administrators Q Action(s) for recovery of… (S1) Can it be claimed against the exec./admin? : 1. Money/debt/interest thereon A:  (should be claimed against the estate) 2. Property, or interest/lien thereon  (i.e. “actions that survive”) XPN: Where, by its nature, it cannot survive Case: ABS-CBN vs. Office of the Ombudsman – on damages arising from crime, the proper recourse is to file an action vs. executor/administrator based on S1 “ACTIONS THAT SURVIVE” – those that survive the death of the decedent  These can be claimed by/against the executor/administrator! (S2) Cases: (a) Aguas vs. Llemos – actions for damages re: injury to person/property also survive  "Injury to property," not limited to injuries to specific property, but extends to other wrongs by w/c personal estate is injured/diminished (e.g. maliciously causing a party to incur unnecessary expenses) (b) Saligumba vs. Palanog – actions for quieting of title also survive (c) Modesto vs. Modesto – PROVISIONAL AUTHORITY OF PROBATE COURT: it has no authority to decide WON the property belongs to the estate/persons examined (ordinary action for recovery of property req’d!) (d) Lao vs. Dee – per S3, heirs/devisees have no cause of action vs. exec./admin for recovery of property left by the deceased before distribution of the estate is made (or before any residue is known) (e) Rioferio vs. CA – re: when heirs can file action for recovery of estate property: GR: Heirs = NO LEGAL STANDING! XPN: [PULA] 1. Admin allegedly participated in act complained of, made a defendant 2. Executor/administrator = unwilling/refuses to bring suit 3. Pending filing of petition for letters of administration (cf. Art. 777, CC – rights to succession, transmitted from moment of decedent’s death!) 4. Administration proceedings underway but admin, not yet appointed Re: when property to be recovered was fraudulently conveyed by the deceased (S9-10)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before


Executor/administrator may commence action for recovery if: 1. On application of the creditors of the deceased 2. Creditors making the application pay part of the costs or give security therefor  [whichever the court deems equitable] XPN: Creditor may bring action in the name of the exec./admin if the ff. concur: [DFA] 1. Deficiency of assets 2. Deceased in his/her lifetime made/attempted to fraudulently convey 3. Executor/administrator has not commenced action +LEAVE OF COURT +BOND: (a) In favor of exec./admin (b) Conditioned to indemnify him/her against costs incurred re: such action If fraudulent conveyance was in favor of exec./admin: (a) Action, brought IN THE NAME OF ALL CREDITORS (b) NO LEAVE OF COURT & BOND NEEDED +LIEN (creditor has lien over any judgment recovered, for reasonable expenses/costs) Double-value rule (S8) – in case of embezzlement of money/property of deceased before issuance of letters, the embezzler is liable to an action in favor of executor/administrator for DOUBLE THE VALUE of the property embezzled! R88 (payment of the debts of the estate) SCENARIO APPLICABLE RULES 1. ALL DEBTS, PAID IN FULL w/in time limited for the purpose 2. If testator STIPULATES in will re: payment (e.g. DESIGNATES the portion of the estate to be appropriated for payment of debts), SUCH STIPULATION IS TO BE FOLLOWED  If designated portion is insufficient (or if there is no stipulation re: designation) – such part of the estate as is NOT DISPOSED BY WILL shall be appropriated for payment GR: Personal property first! XPN Real property, if: Estate properties : (a) Personal property is insufficient, or are sufficient to (b) Sale of personal property = detrimental to the cover the debt participants of the estate (see also discussion on R89 for other matters re: sale, etc.) 3. Any deficiency (left over after [2]) = met by CONTRIBUTIONS from heirs/devisees/legatees (who have entered into possession of portions of the estate before debts/expenses have been paid) 4. Exec./admin RETAINS sufficient estate for payment of contingent claims (when same become absolute) Contingent claim – one in w/c liability depends on some future event that may or may not happen; makes it uncertain WON there will be any liability at all (Case: Gaskell vs. Tan Sit) 1. Exec./admin must follow rules on PREFERENCE OF CREDITS 2. If there are NO ASSETS SUFFICIENT TO PAY THE CREDITS OF ANY Estate is insolvent ONE CLASS OF CREDITORS, each creditor w/in such class shall be paid a DIVIDEND (in proportion to his claim) Case: Aldamiz vs. Judge of CFI-Mindoro – remedy of execution, not available in favor of a creditor against the estate of a decedent (because the RoC says the property is to be SOLD [or MORTGAGED, as well, re: realty] w/ PROCEEDS TO BE USED FOR PAYMENT OF CLAIMS)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

 Execution only issues where heirs/legatees/devisees ALREADY ENTERED INTO POSSESSION PRIOR TO PAYMENT OF DEBTS (& there are still debts yet to be paid!) Reglementary period for settlement of estate (S15-16) 1. Initial period: 1 YEAR from issuance of letters 2. Extension: granted upon application, on good reason, & after due hearing (w/ notice) - ≤6 MONTHS/extension - Max. period (original 1-year period + extension[s]) = 2 YEARS - If exec./admin dies & a new one is appointed: new exec./admin may be granted an extension – same period per instance, but ≤6 MONTHS beyond the time w/c the court might have allowed the original R89 (sales, mortgages, and other encumbrances of property of decedent) SALE, MORTGAGE, OR ENCUMBRANCE OF SALE OF PERSONAL PROPERTY REAL PROPERTY For payment of: 1. Where personalty is insufficient 1. Debts 2. Other reasons: 2. Legacies (a) Sale of personalty may injure the 3. Expenses of/for – business/interests of those interested (a) Administration in the estate (b) Preservation of property (b) Testator has not made sufficient provision for payment of debts, etc. (c) Sale of realty = beneficial to heirs, etc. (d) Deceased, in his/her lifetime: - Was bound under contract to convey realty/an interest therein - Held realty in trust for another Authority to sell/mortgage estate property (S7) 1. Exec./admin files a petition, setting forth: (a) Debts due, expenses of administration, legacies, etc. (b) Value of personal estate; situation of property to be sold/mortgaged/encumbered (c) Other facts showing that the sale, etc. is necessary/beneficial 2. Court fixes a time & place for hearing, gives written notice to interested persons 3. Authority granted by order of the court (if reqs. are complied w/) XPN: BOND filed by interested party, conditioned for accounting of proceeds of sale, etc. Gabriel vs. Encarnacion – regulations re: sale, etc. are mandatory; failure to comply has the effect of rendering the order authorizing the sale VOID Cases: (a) Godoy vs. Orellano – exec./admin is not authorized to sell, or contract to sell, any property belonging to the estate w/o the authority of the probate court; such contract is VOID (b) CFI of Rizal v. CA – probate court enjoys ample discretion in determining under what conditions a particular sale would be most beneficial to all persons interested (appellate courts are wont not to interfere [XPN: abuse of discretion]) (c) Jaroda vs. Cusi, Pahamotang vs. PNB – notice req. = indispensable; if no notice is given, the court's authority is invalid, & any order issued by it is VOID R90 (distribution & partition of the estate) Procedure 1. Pay debts, funeral expenses, allowance of surviving spouse, estate tax XPN: Pay BOND conditioned upon payment of [↑] w/in SUCH TIME DIR. BY COURT 2. Distribute remainder


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

Expenses of partition may be paid by – (a) EXECUTOR/ADMINISTRATOR out of assets in his/her hands, if sufficient (b) THE PARTIES out of their respective shares (if assets of (a) are insufficient) 3. Certified copies of judgments/FOs re: realty/partition thereof = recorded in RoD Re: other questions/issues – Q’s as to … (a) Advancements allegedly made to an heir: may be heard in the same proceeding (b) Who the lawful heirs are; their shares: heard & decided as in ordinary cases Partial distribution Cases: (a) Gatmaitan vs. Medina – partial distribution pending final termination of the [in]testate proceedings is discouraged by the courts (XPN: extreme cases [+BOND conditioned for payment of debts/expenses/estate tax]) (b) Quasha Peña vs. LCN Construction – partial distribution = discretionary upon the court (cf. R109 S2); such may be allowed where the estate has: - Sufficient assets - No outstanding obligations Order of partition/distribution Cases: (a) Torres vs. Encarnacion – the probate court, having jurisdiction over the entire estate, is the most logical authority to order distribution of the estate (b) Imperial vs. Muñoz – an order of the probate court in [in]testate proceedings approving a project of partition w/c clearly fixed the distributive shares of the heirs is final and therefore appealable Recognition of heirship Cases: (a) Lopez vs. Lopez – a person claiming to be an [acknowledged natural] child of a deceased may simply intervene in the intestate proceedings to prove his/her status as such and claim the right to share in the inheritance (b) Guy vs. CA – the trial court (despite the original action being a petition for letters of administration) is not precluded from receiving evidence on filiation; its jurisdiction extends to matters incidental & collateral to the exercise of powers in handling the settlement of the estate, incl. determination of the status of each heir R91 (escheats) NO will & heirs → ESTATE BECOMES PROPERTY OF THE STATE  Filed by SolGen or his representatives w/ the RTC! Venue (S1) – (a) Resident decedent: last residence (b) Non-resident decedent: in w/c he/she had estate Procedure (S2-3) 1. Order of hearing (date ≤6 MOS. after entry) [+publication at least once a week for 6 successive weeks in a newspaper of gen. circ.]  Case: Hamilton vs. Brown – judgment in escheat proceedings, when rendered by a court of competent jurisdiction, is conclusive against all persons with (actual/constructive) notice, but not against those not parties/privies thereto 2. Payment of debts & charges (if any) 3. Court adjudges that the estate shall escheat as follows: (a) Personalty: municipality/city where deceased last resided (b) Realty: municipalities/cities in w/c the same is situated Additional rules: - If deceased never resided in PH: the entire estate may be assigned to the respective municipalities/cities where the same is located - Est. of permanent trust: court may, at instance of interested party, or motu proprio  Purpose: so that only the income from the property may be used


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

Claim to escheated property (S4) – filed by heir w/in 5 YEARS from date of escheat judgment Cases: In re: Estate of Lao Sayco, Republic vs. CA & Solano – the person who lays claim to the property left by the decedent as heir must prove his identity & rights R109 (appeals in special proceedings) – from J/O rendered by RTC (or J&DRC) Appealable matters (& exceptions) (S1) [ADCAS-FINAL] 1. Allows/disallows a will 2. Determines the lawful heirs; their shares 3. Re: claims against the estate 4. Settles the account of exec./admin, trustee, guardian 5. Re: settlement of estate; administration of trustee/guardian, final determination of the rights of party appealing (XPN: No appeal from app’t of sp. adm. [“sound discretion”]) 6. Final J/O in the case, affecting substantial rights of appellant (XPN: Order re: MR/NT) Case: Republic vs. Nishina – R109 contemplates multiple appeals during the pendency of special proceedings (requiring [record on appeal + notice of appeal], as the original records of the case should remain w/ the court below to enable the rest of the case to proceed in the event that a separate & distinct issue is resolved by said court and held to be final)  Where no other matter remains to be heard & determined, no record of appeal is needed Advance distribution (S2) 1. Re: settlement of estate 2. Notwithstanding a pending controversy/appeal (re: part of estate not affected by same) 3. Discretionary upon the court (& in terms it deems just/proper) 4. R90 applies

II. OTHER SPECIAL PROCEEDINGS R99-100 (adoption & custody of minors) (This section is lifted from the Deja Entendu Notes on Civil Law, with a few changes to reflect a bigger focus on adoption’s Remedial Law aspects.) 1. RA 8552, SC Rule on Adoption (A.M. No. 02-06-02-SC), etc. (domestic adoption) Important provisions of the Rule on Adoption (feeling ko lang naman) (a) Juris., venue (S6) – FamCourt of province/city where prospective adopters reside (b) Petitions for adoption, not limited to questions of adoption (S7) – petition for adoption may also contain an application for: - Change of name - Rectification of simulated birth - Commitment of children ([in]voluntary) - Declaration of child as abandoned/neglected/dependent Overview (cf. RA 8552) Adopter 1. Filipino citizen (S7) (a) of legal age (b) w/ full civil capacity & legal rights (c) of good moral character (d) has not been convicted of any crime involving moral turpitude (e) emotionally & psychologically capable of caring for children (f) can support/care for children in keeping w/ means of the family (g) at least 16 yrs. older than the adoptee  XPN: waivable when adopter is the –


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before


biological parent of the adoptee spouse of the adoptee’s parent

2. Alien (a) same qualifications laid down for PH citizens (b) alien’s country has diplomatic relations w/ PH (c) residency in PH for at least 3 continuous yrs. prior to filing of application for adoption (+ maintenance thereof until adoption decree is entered) (d) certification of [1] legal capacity to adopt, & [2] allowance of alien’s government for adoptee to enter their country as the former’s adopted child (issued by alien’s diplomatic/consular office, or any appropriate government agency) [XPN: (c) & (d) are waivable for the following aliens:] - former Filipino seeking to adopt relative w/in 4th civil degree - alien seeking to adopt legitimate child of Filipino spouse - alien married to PH citizen, seeking to jointly adopt relative of Filipino spouse w/in 4th civil degree 3. Guardian, w/ respect to the ward (after termination of guardianship & clearance of guardian’s financial accountabilities) GR: Husband & wife shall jointly adopt XPN: 1. One seeks to adopt a legitimate child of his/her spouse 2. One spouse seeks to adopt his/her own illegitimate child  Provided the other spouse consented thereto 3. Spouses are legally separated 1. Any person 18 but incapacitated Q: If the adopter cannot rescind, what would his recourse be? A: Disinheritance (Art. 919, CC [see discussion on Succession]) Grounds 1. Repeated physical & verbal maltreatment 2. Attempt on the life of the adoptee 3. Sexual assault/violence Rescission 4. Abandonment & failure to comply w/ parental obligations (S19-20) Effects 1. Restoration of parental authority of biological parent(s), if known, (or legal custody of the DSWD) if adoptee is still a minor or incapacitated  Reciprocal rights/obli. of adopter & adoptee = extinguished 2. Cancellation of amended birth certificate; restoration of original 3. Reversion of successional rights to its status prior to adoption  Only as of the date of judgment of rescission! [vested rights acquired prior shall be respected] 2. RA 8043 (inter-country adoption) (a) Inter-country adoption, defined (S3[a]): socio-legal process of adopting a Filipino child by a foreigner or a PH citizen permanently residing abroad where the petition is filed, supervised trial custody is undertaken, & the decree of adoption is issued outside PH (b) Inter-country adoption as last resort (S7): inter-country adoption will not be entertained unless all possibilities for adoption in PH have been exhausted and intercountry adoption is in the best interests of the child Adopter Any alien or Filipino citizen permanently residing abroad: (S9) 1. 27+ 2. at least 16 yrs. older than the adoptee XPN: (a) biological parent of the adoptee (b) spouse of the adoptee’s parent 3. capacity to act & assume all rights/responsibilities of parental authority under his/her national law 4. has undergone appropriate counselling in his/her country 5. has not been convicted of a crime involving moral turpitude 6. eligible to adopt under his/her national law 7. in a position to provide proper care/support, & give necessary moral values/examples to all his children 8. agrees to uphold the basic rights of the child per PH law & UCRC 9. adopter’s country:


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

(a) has diplomatic relations w/ PH (b) maintains a body similar to the Inter-Country Adoption Board (c) allows adoption in its laws 10. possesses all the qualifications & none of the disqualifications under this law (& in other applicable laws) 11. if married, spouse must jointly file “Legally free child”: 1. “Legally free” – voluntarily/involuntarily committed to the DSWD as dependent, abandoned, neglected in accordance w/ the Child & Youth Welfare Code (CYWC): (a) Dependent (Art. 141(1), CYWC): w/o a parent, guardian, or custodian; or one whose parents/guardian/other custodian for good cause desires to be relieved of his care and custody; & is Adoptee dependent upon the public for support (S8) (b) Abandoned (Art. 141(2), CYWC): no proper parental care/guardianship, or whose parents/guardians have deserted him for a period of at least 6 continuous months (c) Neglected (Art. 141(3), CYWC): basic needs have been deliberately unattended or inadequately attended; neglect may be physical or emotional 2. “Child” – any person below 15 y/o By biological/adopted children (10+) Consent 1. In writing req’t (S10) 2. In the form of a sworn statement Supervised trial custody period (S14) 1. Entity vested w/ custody: (a) governmental agency; or (b) authorized & accredited (private) agency ... in the country of the adopter(s) 2. Period: 6 months from the time of placement 3. Only after the lapse of the period can the adoption decree be issued 3. Custody of minors Rules on Custody of Minors (& HC re: custody of minors) (A.M. No. 03-04-04-SC) Jurisdiction, venue – RTC/FamCourt of province/city where: (a) Petitioner resides, or (b) Where minor may be found Rules on petition – verified (Pati ba answer?) No MTD (XPN: re: lack of jurisdiction) Case study (discretionary upon the court; “may”) Pre-trial, mediation Provisional custody “Best interests of the child” HDO (ex parte) – motu proprio/upon application Protection order Order of preference re: custody judgment (a) Both parents (b) Either parent, if the other is unfit (c) Grandparents, or grandparent chosen by minor >7 w/ sufficient discernment  XPN: … when grandparent chosen = unfit (d) Eldest sibling >21 y/o (XPN: … when unfit!)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

(e) Any other person/institution as the court may deem suitable Appeal – by notice of appeal (so… R41? ) (AM No. 02-11-12-SC Procedure on Custody in Petitions for Declaration of Absolute Nullity or Void Marriages or Legal Separation—Secs. 1, 4-6) (AM No. 02-A-19-SC Custody of Vagrant or Abused Children—Secs. 4-6) Briones v. Miguel, G.R. No. 156343, 18 October 2004 Sy v. CA, 541 SCRA 371 (2007) R103 (change of name) Valid grounds Republic v. CA, et al., G.R. No. 97906, 21 May 1992 Silverio v. Republic, G.R. No. 174689, 22 October 2007 People v. Cagandahan, G.R. No. 166676, 12 September 2008 Procedure Republic v. Aquino, 90 SCRA 172 (1979) Republic v. Marcos, 182 SCRA 223 (1990) RA 9255 (An Act Allowing Illegitimate Children to Use the Surname of their Father) In Re: Petition of Julian Wang, GR 159966, March 30, 2005 Republic v. Capote, GR 157043, February 2, 2007 RAs 9048 & 10172 (Clerical Error Law)  RA 9048 originally dealt w/ clerical/typo errors; changes in first names & nicknames; RA 10172 added changes of sex, & in month/day of birth Clerical error, defined: mistake committed in the performance of clerical work in writing/copying/transcribing/typing an entry in the civil register that [is]: 1. HARMLESS & INNOCUOUS (e.g. misspelled name, place of birth, mistake in the entry of day & month in the DOB, or mistake in the sex of the person, etc.); 2. VISIBLE TO THE EYES or OBVIOUS TO THE MISUNDERSTANDING; & 3. Correctible ONLY BY REFERENCE TO OTHER EXISTING RECORD(S)… … provided that no correction must involve the change of nationality/age/status of the petitioner CAN A PERSON HAVE AN ENTRY IN A CIVIL REGISTER CHANGED? GR: XPN :

No entry in a civil register shall be changed or corrected w/o judicial order 1. Clerical/typographical errors 2. Change of first name/nickname … where it is patently clear that there 3. Change of day & month in the was a clerical/typographical  DOB error/mistake in the entry 4. Change of sex of a person … which can be corrected/changed by the concerned city/municipal civil registrar or consul general in accordance w/ the provisions of RA 9048 as amended by RA 10172 & the IRR (Sec. 1, as amended)

HOW CAN AN ENTRY IN A CIVIL REGISTER BE CHANGED, AND BY WHOSE INITIATIVE? 1. Any [natural (Sec. 2(2))] person having direct & personal interest in the correction of a

clerical/typographical error in an entry and/or change of first name/nickname may file, in person, a verified petition w/ the city/municipal civil register or consul general.


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

2. Any person of legal age, having direct and personal interest in the correction of a clerical

or typographical error in the day and/or month in the date of birth of a person in the civil register for birth, may file the petition. └ A person is considered to have direct and personal interest when [s]he is the:  Owner of the record; or  The owner's spouse, child, parent, brothers, sister, grandparent, guardian; or  Any other person duly authorized by law or by the owner of the document sought to be corrected… … provided that when a person is a minor or physically or mentally incapacitated, the petition may be filed on his/her behalf by his/her spouse, or any of his/her children, parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law. (IRR, Rule 3) 3. For correction of a clerical or typographical error in sex, the petitioner affected by such error shall personally file the petition with the civil registry office where the birth certificate is registered. (IRR, Rule 3) + a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. (Sec. 3) Note that all petitions may be availed of only once. (Sec. 5, as amended) └ RE: change of name –  Change shall be reflected in the birth certificate by way of marginal annotation  In case there are other civil registry records of the same person which are affected by such change, the decision of approving the change of first name in the birth certificate, upon becoming final and executory, shall be sufficient to be used as basis in changing the first name of the same person in his other affected records w/o need for filing a similar petition; successful petitioner need only file a written request/ the concerned C/MCR, CG or D/CR to make such marginal annotation, attaching thereto a copy of the decision. (2001 IRR, Rule 12) WHERE CAN IT BE DONE? For correction of clerical/typographical error in an entry and/or change of first name or nickname, or in the entry of the day and/or month in the date of birth: If petitioner resides/is domiciled in the city/municipality where the record is kept… If petitioner has already migrated to another place in the country & it would not be practical for him/her, in terms of transportation expenses, time, & effort, to appear in person… If petitioner is presently residing/domiciled in a foreign country…

… w/ the local civil registry office of the city/municipality where the record sought to be corrected/changed is kept … w/ the local civil registrar of the place where the interested party is presently residing/domiciled; the two local civil registrars concerned will then communicate to facilitate the processing of the petition … w/ the nearest Philippine Consulate (Sec. 5, as amended)

For correction of clerical and typographical error in the entry of sex: The verified petition shall be filed, in person, with the civil register of the city or municipality – or the Philippine Consulate, as the case may be – where the record containing the entry of sex in the birth certificate to be corrected is registered. (IRR, Rule 4)


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

IN WHAT FORM MUST THE PETITION BE? WHAT SHOULD IT CONTAIN? The petition must be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths, and is to: 1. Set forth facts necessary to establish the merits of the petition; 2. Show affirmatively that the petitioner is competent to testify to the matters stated; & 3. State the particular erroneous entry/entries to be corrected and/or the change to be made. (Sec. 5, as amended) Petitions for change of first name/nickname must be based on the following grounds: 1. Petitioner finds the first name/nickname to be ridiculous, tainted with dishonor, or extremely difficult to write or pronounce; 2. New first name/nickname = habitually used by petitioner, and he has been publicly known by that first name/nickname in the community; or 3. Change will avoid confusion. (Sec. 4) The petition shall be supported w/ the following documents: 1. Certified true machine copy of the certificate/page of the registry book containing the entry/entries to be corrected/changed; 2. At least two (2) public/private documents showing the correct entry/entries upon w/c the correction/change shall be based; & 3. Other documents w/c may be considered relevant and necessary (by the petitioner or the civil registrar) for the approval of the petition. (Sec. 5, as amended)

If petition is for name/nickname…



… + above requirements + clearance/certification that the owner of the document has no pending administrative/civil/criminal case, or no criminal record, w/c shall be obtained from the: (a) employer, if employed; (b) NBI; (c) PNP + affidavit of publication from the publisher and a copy of the newspaper clipping (2001 IRR, Rule 8) … above requirements + earliest school record/documents, medical records, baptismal certificate and other documents issued by religious authorities + affidavit of publication from the publisher and a copy of the newspaper clipping (IRR, Rule 6) … above requirements + earliest school record/documents, etc. + a certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone a sex change/transplant procedure (Sec. 5, as amended) + affidavit of publication from the publisher and a copy of the newspaper


If petition is for correction of erroneous entry concerning DOB… If petition is for correction of erroneous entry concerning sex…


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

clipping (IRR, Rule 6) The petition + supporting papers must be filed in three (3) copies: 1. First copy = concerned city/municipal civil registrar, or consul general 2. Second copy = Office of the Civil Registrar General 3. Third copy = petitioner (Sec. 5, as amended) The petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. (Sec. 5, as amended) [see also posting requirement c/o C/MCR in later pages] └ RE: migrant petitioners – petition to be posted first at the office of the PRCR for ten (10) consecutive days before sending it to the RKCR, who shall, upon receipt, post same at his office for another ten (10) consecutive days; when the petition is for change of first name, migrant petitioner shall publish the petition in a newspaper of general & national circulation. └ RE: petitioner in foreign country – Posting and/or publication, as the case may be, shall be done in the place where the petition is filed & in the place where the record sought to be corrected is kept. (2001 IRR, Rule 9) The city/municipal registrar (or the consul general, as the case may be) is authorized to collect reasonable [filing] fees as a condition for accepting the petition. An indigent petitioner shall be exempt therefrom. (Sec. 8, as amended) └ Fees = to accrue to – └ Funds of the Local Civil Registry Office concerned; or └ Office of the Consul General … for modernization of the office, hiring of new personnel, and procurement of supplies; subject to government accounting & auditing rules. (Sec. 8, as amended) For petitions to correct a clerical/ typographical error… For petitions for change of first name/nickname…

P1,000; indigent petitioner = exempt P3,000; indigent petitioner = exempt 

For petitions General…





For migrant petitions…

For petitions to correct the day and/or month in the DOB and for change of sex…


Correction of clerical/typographical error: $50 or its equivalent value in local currency in petitions  change of first name/nickname: $150 or its equivalent value in local currency  Correction of clerical/typographical error: P500 service fee (+ filing fee in the form of postal money order or other form of payment to be transmitted to the RKCR)  change of first name/nickname: P1,000 service fee (+ filing fee in the form of postal money order or other form of payment to be transmitted to the RKCR) P3000; indigent petitioner = exempt, provided the petition is supported by a certification from the City/Municipal Social Welfare Office that the petitioner/document owner is indigent

[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

For petitions filed with the Consul General… For migrant petitions… When petitioner/document owner files a petition under RA 9078 simultaneously w/ one under RA 10172, involving the same document… └ (2001 IRR, Rule 18; IRR, Rule 10)

$150 or its equivalent value in local currency P1,000 service fee collected by the PRCR P3,000, corresponding to the fee under RA 10172

WHAT HAPPENS UPON SUBMISSION OF THE PETITION? The civil registrar/consul general to whom the petition is presented must (in order): 1. Examine the petition + supporting documents; 2. Post the petition in a conspicuous place provided for the purpose for ten (10) consecutive days after finding the petition + supporting documents sufficient in form & substance; 3. Act on the petition and render a decision not later than five (5) working days after the completion of the posting and/or publication requirement; └ Grounds for denying a petition for correction of clerical/typographical error:  Supporting documents = not authentic and genuine;  C/MCR has personal knowledge that a similar petition is filed or pending in court or in any other LCRO;  Petition involves the same entry in the same document, w/c was previously corrected or changed;  Petition involves the change of the status/sex/age/nationality of petitioner/any person named in the document; and  Such other grounds as the C/MCR may deem not proper for correction. (2001 IRR, Rule 5) └ Grounds for denying a petition for change of first name/nickname:  First name/nickname sought to be changed is neither ridiculous, nor tainted with dishonor nor extremely difficult to write or pronounce;  New first name or nickname sought to be adopted has not been habitually & continuously used by the petitioner, & he has not been publicly known by that first name/nickname in the community; and  No confusion to be avoided or created. (2001 IRR, Rule 5) 4. Transmit a copy of the decision + records of the proceedings to the Office of the Civil Registrar General w/in five (5) working days from the date of the decision. (Sec. 6) FAVORABLE DECISION The Civil Registrar General shall, w/in ten (10) working days from receipt of the decision granting the petition, exercise the power to impugn such decision by way of an objection based on the following grounds:

UNFAVORABLE DECISION In case the petition is denied by the city/municipal civil registrar or the consul general, petitioner may: 1. Appeal same to Civil Registrar General within ten (10) working days after the receipt of the city/municipal civil registrar’s decision; or 2. File the appropriate petition w/ the

1. The error is not clerical/typographical; 2. The correction of an entry/entries in the civil register is substantial/controversial


[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

as it affects the civil status of persons; or 3. The basis used in changing the first name/nickname does not fall under those mentioned in Sec. 4 (Sec. 7)

proper court. (Sec. 7) Grounds of appeal: 1. New evidence is discovered that may

affect/alter/modify/reverse the decision of the C/MCR when presented; 2. Denial of the C/MCR is erroneous/not supported w/ evidence; or 3. Grave abuse of authority or discretion on the part of the C/MCR. (2001 IRR, Rule 14) Rules on appeal: 1. The

C/MCR shall, within five (5) working days after the receipt of the notice of appeal from the petitioner, submit the petition and all supporting documents to the CRG; 2. The CRG shall render decision on the appeal within thirty (30) calendar days after receipt thereof; 3. The decision of the CRG shall be transmitted to the concerned C/MCR within ten (10) working days after the date of the decision; and 4. Within ten (10) working days after receipt of the decision, the C/MCR shall notify the petitioner and shall carry out the decision. (2001 IRR, Rule 14) Rule on failure to seasonably appeal: When the petitioner fails to seasonably file the appeal, the decision of the C/MCR disapproving the petition shall become final and executory, & the only option left for the petitioner shall be to file the appropriate petition with the proper court. (2001 IRR, Rule 14) The Civil Registrar General shall immediately notify the city/municipal civil registrar or consul general of the action taken on the decision. Upon receipt of the notice thereof, the latter shall notify the petitioner of such action. The petitioner may either seek reconsideration w/ the Civil Registrar General or file the appropriate petition w/ the proper court. (Sec. 7) If the Civil Registrar General fails to exercise his power to impugn the decision of the city/municipal civil registrar or of the consul general within the 10-day period, the decision becomes final & executory. (Sec. 7) 24

[DEJA ENTENDU NOTES] [SpecPro] [v.1.0, 2016] deja [already] + entendu [heard] = you’ve heard all of this before

Batbatan v. Office of Local Civil Registrar, 118 SCRA 745 (1982) Lee v. CA, 367 SCRA 110 Republic v. Kho, et al., G.R. No. 170340, 29 June 2007 Kilosbayan Foundation v. Ong, G.R. No. 177721, 3 July 2007 R108 (cancellation/ correction of entries in the civil registry) Republic v. Belmonte, 158 SCRA 173 (1988) Tan Co v. Civil Register, GR 138496, February 23, 2004 Braza et. al., v. Civil Registrar et. al., 607 SCRA 638 (2009) Gerbert Corpuz v. Sto. Tomas, GR 186571, August 11, 2010


View more...


Copyright ©2017 KUPDF Inc.