Bb Special Proceedings

SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS Nimfa Cuesta Vilches

I. INTRODUCTION A. DEFINITION A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.1 B. DISTINCTION FROM ORDINARY CIVIL ACTION It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.2 Hence, a special proceeding is initiated by petition, not by complaint. C. APPLICABILITY OF RULES ON ORDINARY CIVIL ACTION Applicability of rules on civil actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.3 Special provisions under Part II of the Rules of Court govern special proceedings; but in the absence of special provisions, the rules provided for in Part I of the Rules governing ordinary civil actions shall be applicable to special proceedings, as far as practicable.4 1. Special proceedings under the Rules of Court a) b) c) d) e)

Settlement of estate of a deceased person;5 Escheat;6 Guardianship and custody of minor children;7 Trustees;8 Adoption and rescission and revocation of adoption;9

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RULES OF COURT, Rule 1, Sec. 3. Reyes v. Enriquez, G.R. No. 162956, April 10, 2008; 551 SCRA 86. 3 RULES OF COURT, Rule 72, Sec. 2. 4 Sheker v. Estate of Alice O. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111. 5 RULES OF COURT, Rules 73-90; RULE ON GUARDIANSHIP OF MINORS, A.M. No. 03-02-05-SC, May 1, 2003; and Rule on Custody of Minors and Habeas Corpus in Relation to Custody of Minors, A.M. No. 03-04-04, May 15, 2003. 6 RULES OF COURT, Rule 91. 7 Id., Rules 92-97. 8 Id., Rule 98. 9 Now governed by the Rule on Adoption, A.M. No. 02-6-02-SC, August 22, 2002. 2

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f) g) h) i) j) k) l) m) n)

Hospitalization of insane persons;10 Habeas Corpus;11 Change of Name;12 Voluntary dissolution of corporations;13 Judicial approval of voluntary recognition of minor natural children;14 Constitution of a family home;15 Declaration of absence and death;16 Cancellation or correction of entries in the civil registry;17 and Appeals in special proceedings18

2. Special proceedings under various laws and Supreme Court Circulars a) Petitions under the Family Courts Act19 1. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages;20 2. Rule on Legal Separation;21 3. Rule on Provisional Orders;22 4. Rule on Custody of Minor Children and Writ of Habeas Corpus in Relation to Custody of Minor Children;23 and 5. Summary judicial proceedings under the Family Code24

b) Proceedings for protection orders under the Violence Against Women and Their Children Act25 1. Rule on Violence Against Women and Their Children26

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RULES OF COURT, Rule 101. Id., Rule 102. 12 Id., Rule 103; Republic Act No. 9255 [2004]. 13 Now governed by Rep. Act No. 8799, or the Securities Regulation Code of 2000. 14 RULES OF COURT, Rule 105. 15 Rendered repealed by the Family Code which provides for an automatic constitution of the family home. 16 RULES OF COURT, Rule 107. 17 Id., Rule 108; Rep. Act No. 9048 [2001] 18 RULES OF COURT, Rule 109. 19 Rep. Act No. 8369 [1997]. 20 A.M. 02-11-10-SC March 15, 2003. 21 A.M. 20-11-11-SC, March 15, 2003. 22 A.M. 02-11-12-SC, March 15, 2003. 23 A.M. 03-04-04-SC, April 22, 2003. 24 CIVIL CODE, Arts. 238-253. 25 Rep. Act No. 9262 [2004]. 26 A.M. 04-10-11, October 19, 2004. 11

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c) Proceedings under the Arbitration Law27 and Alternative Dispute Resolution Act28 1. Arbitration; court-annexed mediation and judicial dispute resolution29; and court-annexed family mediation30

3. Special Proceedings under other Supreme Court Circulars a) Petition for writ of amparo31 and b) Petition for writ of habeas data32

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Rep. Act No. 876 [1953]. Rep. Act No. 9285 [2004]. 29 A.M. 01-10-5-SC-PHILJA, October 16, 2001. 30 A.M. 10-4-16-SC, June 22, 2010; Please refer to the Chapter on Alternative Dispute Resolution. 31 A.M. 07-9-12-SC, October 16, 2007. 32 A.M. 08-1-16-SC, February 2, 2008. 28

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II. SETTLEMENT OF ESTATE OF DECEASED PERSONS A. DEFINITION In a petition for settlement of estate, the applicants seek to establish the fact of death of the decedent and to be duly recognized as among the heirs to be able to participate in the settlement and liquidation of the estate.33 Where the deceased left a will, the proceeding is testate and if no will was left, the proceeding is intestate. Settlement of estate proceeding is subject to mediation.34

B. JURISDICTION OF PROBATE COURT BASED ON GROSS VALUE OF ESTATE First-Level Courts35 Metropolitan Trial Court Not Exceeding P400,000

Regional Trial Court36 Within Metro Manila Exceeding P400,000

Municipal Trial Court in Outside Metro Manila Cities, Municipal Trial Court, and Exceeding P300,000 Municipal Trial Circuit Court Not Exceeding P300,000

Shari’a District Courts37 Exclusive original jurisdiction in matters of settlement of the estate of deceased Muslims regardless of the nature and aggregate value of the property.

1. Limited jurisdiction of the court in settlement of estate. The jurisdiction of the trial court, either as testate or intestate court, is limited to settlement of estate and probate of a will and appointment or removal of administrator or executor. As a general rule, its power does not include determination of ownership and adjudication of title that are in issue during the proceedings.38 Hence, a separate action contesting the title and ownership of a property shall be instituted.39

2. Nature of authority of court in probate of will. In settlement of estate proceedings, the authority of a probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with

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Montaner v. Shari’a District Court, et.al., G.R. No. 1744975, January 20, 2009, 576 SCRA 746. A.M. 10-4-16-SC, Rule1, June 22, 2010. 35 Rep. Act No. 7691 [1994], amending Batas Pambansa Blg. 129. 36 Id. 37 Presidential Decree No. 1083, Art. 143(b). 38 Ramos v. Court of Appeals, G.R. No. 42108, December 29, 1989, 180 SCRA 635. 39 Vda. De Rodriguez v. Court of Appeals, G.R. No. L-39532, July 20, 1979, 91 SCRA 540. 34

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formalities prescribed by law.40 However, in one case, the Supreme Court held that although generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, the probate court is competent to decide the question of ownership.41 By way of exception to the abovementioned rule, “when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property.”42 Moreover, a Shari’a District Court is not deprived of jurisdiction merely because petitioners raised as a defense the claim that the deceased is not a Muslim. According to the Supreme Court, the Shari’a District Court has the authority to determine whether it has jurisdiction, requiring the determination that the deceased is a Muslim. If after hearing, the Shari’a District Court finds that the deceased was not in fact a Muslim, then it should dismiss the case for lack of jurisdiction.43

C.

JURISPRUDENCE 1. Probate court cannot act on rights to property arising from contract nor proceed to the probate of will that preterited a compulsory heir. In a relevant case, the Supreme Court found that the probate court may act on matters pertaining to the estate but not on the rights to property arising from a contract. 44 In addition, during the hearing, the probate court shall not go through the probate of a will that preterited a compulsory heir since preterition invalidates the will.45

2. Probate court cannot act on side agreement of parties as to a right of way. Similarly, any agreement other than the judicially approved compromise between the parties such as the grant of right of way, is outside the limited jurisdiction of the probate court. Thus, an alleged right arising from a “side agreement” on the right of way can be fully protected by filing an ordinary action for specific performance in a court of general jurisdiction.46

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Nittscher v. Nittscher, G.R. No.160530, November 20, 2007, 537 SCRA 681. Reyes v. Regional Trial Court of Makati, et.al., G.R. No. 165744, August 11, 2008, 561 SCRA 593. 42 Cortez v. Court of Apeals, G.R. No. 117417, September 21, 2000, 340 SCRA 715. 43 Supra note 33. 44 Supra note 38. 45 Nuguid v. Nuguid, G.R. No. 23445, June 23, 1966, 17 SCRA 449. 46 Reyes-Mesugas v. Reyes, G.R. No. 174835, March 22, 2010. 41

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3. Exceptions to the limited jurisdiction of the probate court. a. Probate court can act on questions regarding heirship and status of an illegitimate child who claims to be an heir to the estate. If a special proceeding for the settlement of estate of a decedent is pending, questions regarding heirship, including prescription in relation to recognition and filiation, should be raised and settled in said proceeding. The court, in its capacity as probate court, has jurisdiction to declare who are the heirs of the decedent.47 Even the status of an illegitimate child who claims to be an heir to a decedent’s estate which cannot be adjudicated in an ordinary civil action, as in a case for the recovery of property, must be ventilated in the special proceeding instituted specifically for the purpose of settling the estate of the deceased.48 b. Probate court can rule on distributive shares and accounting of funds and assets to determine shareholdings. If there is a controversy as to the distributive shares of the heirs in the estate, the probate court shall proceed to hear and decide the same as in ordinary cases.49 The same is true in accounting of funds and assets to determine the extent and value of shareholdings undertaken by a probate court which is completely consistent with the limited jurisdiction of said court. Beyond this, the determination of title or ownership of the subject shares maybe conclusively settled by the probate court as a question of collation or advancement.50 D. VENUE Section 1, Rule 73, Rules of Court provides for the venue for settlement of estate of a deceased person. Decedent was a resident of the Philippines51 The settlement of the estate of a deceased person shall be in the proper court of the place of residence of the deceased at the time of death, regardless of

Decedent was a nonresident of the Philippines52 If the deceased person was a resident of a foreign country, the petition shall be filed in the proper court of any place where he had estate.

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Deceased husband or wife53 As regards liquidation of the conjugal or community property of a deceased husband or wife, it shall be made in the corresponding estate proceedings, but if

Montaner et.al., v. Shari’a District Court, G.R. No. 174974, January 20, 2009, 576 SCRA 746. Puno v. Puno Enterprises, Inc., G.R. No. 177066, September 11, 2009, 599 SCRA 585. 49 Estate of Hilario Ruiz v. Court of Appeals, et.al., G.R. No. 118671, January 29, 1996, 252 SCRA 541. 50 Reyes v. Regional Trial Court of Makati, G.R. No. 165744, August 11, 2008, 561 SCRA 593. 51 RULES OF COURT, Rule 73, Sec. 1. 52 Id. 53 Id., Sec. 2. 48

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citizenship.

both spouses are deceased, then it shall be in the estate proceeding of either.

1. Question as to venue to be decided by court first taking cognizance of petition. The question of venue is to be decided by the court first taking cognizance of the petition. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of the estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when want of jurisdiction appears on the record.54 This is to preclude different courts from assuming jurisdiction.55 Accordingly, the court first taking cognizance of the settlement of estate of a deceased exercises jurisdiction to the exclusion of other courts in testate or intestate proceedings.56

2. Meaning of residence. The term “residence” refers to “actual residence”, as distinguished from “legal residence” or “domicile.”57 As thus defined, “residence”, in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided the person resides therein with continuity and consistency.58 E.

KINDS OF SETTLEMENT Extrajudicial settlement59

Summary settlement of estate of small value60

Judicial Partition61

If decedent left no When the gross Action for will and no debts, value of the estate partition under Rule which is presumed if of a deceased 69, in relation to no creditor files a person does not Article 493 of the 54

Judicial settlement through letters testamentary or letters of administration with or without the will annexed62 All other forms of settlement of estate shall be by court proceedings with

Id., Rule 73. Cuenco v. Court of Appeals, No. 24742, October 26, 1973, 53 SCRA 360. 56 Intestate Estate of Wolfson, G.R. No. L-28054, June 15, 1972, 45 SCRA 381. 57 Pilipinas Shell Petroleum Corporation v. Dumlao, G.R. No. 44888, February 7, 1992, 206 SCRA 40. 58 Supra note 38. 59 RULES OF COURT, Rule 74, Sec. 1. 60 Id., Sec. 2. 61 Id., Rule 69, Sec 13. 62 Id., Rules 75 to 90. 55

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petition for letters of administration within two (2) years after the death of the decedent.63 It may be in the following forms: 1) public instrument executed by all the heirs and filed with the Registry of Deeds; or, 2) an affidavit of selfadjudication if there is only one heir executing an affidavit adjudicating to himself the entire estate, which affidavit is filed with the Register of 64 Deeds.

exceed P 10,000.00, upon a proper petition, the court having jurisdiction may proceed summarily to settle the estate, without the appointment of an executor or administrator, and without delay. The petition may be filed by an interested person who shall make such value appear to the court. Bond is required if property, other than real, is to be distributed, in an amount fixed by the court, conditioned for the payment of any just claim.65

NCC, as when the heirs cannot agree on the division of the estate, and the conditions for extrajudicial settlement are present. The provisions of the Rules of Court on partition apply to partitions of estates composed of personal property, or both real and personal property, in so far as they may be applicable.

either an administrator or an executor managing the estate of the deceased until there is partition and distribution after the payment of debts, legacies and devises. (See further discussion below.)

If the applicable provision is Section 1, Rule 69 of the Rules of Court, which deals with an action for partition, there is no requirement for publication.66

1. Extrajudicial Settlement. Requisites: a. The decedent left no will; b. The decedent left no debts, or, if there are any, these debts have been paid by the heirs; c. The heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose; d. The agreement is contained in a public instrument; e. The public instrument is registered with the Register of Deeds; f. Simultaneously with the registration of the agreement with the Register of Deeds, the parties file with the same Register of Deeds a bond in an 63

Id., Rule 74, Sec. 1. Id. 65 Id., Sec.3. 66 Supra note 38. 64

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amount equivalent to the value of the personal property involved, conditioned upon the payment of any just claim that may crop up within two (2) years; and g. The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks67. 2. Petition for administration of estate must be based on good reason. While extrajudicial settlement by agreement between the heirs may be resorted to,68 recourse to an administration proceeding, even if the estate has no debt is allowed but only if the heirs have good reasons for not resorting to an action for partition. What is “good reason” depends on the circumstances of the case.69

3. Not good reasons to file for administration of estate. The following are not good reasons to file for administration of estate: to avoid multiplicity of suits as when a person seeking to be appointed as administrator is also asking for the annulment of conveyance of a certain property; an existing dispute among the heirs;70 and the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother as he may just adduce proof of his being a forced heir in the intestate proceedings of the latter,71 are not good reasons to justify judicial administration. 4. Extrajudicial settlement is in the nature of a contract. An extrajudicial settlement of estate partakes of the nature of a contract, hence, must comply with the requisites prescribed under Article 1318 of the Civil Code, namely: 1) consent of the contracting parties; 2) object certain, which is the subject matter of the contract; and, 3) cause of the obligation which is established.72 However, an extrajudicial settlement of estate that is not notarized is considered a private document and, as such, can only bind the parties thereto.73

5. Time bar for parties who participated to object to the extrajudicial proceeding. Section 4 of Rule 74 bars heirs and distributees, represented by themselves or through guardians, from interposing objection to an extrajudicial partition after the expiration of two (2) years from said partition. But, the

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RULES OF COURT, Rule 74, Sec. 1. Id. 69 Pereira v. Court of Appeals, G.R. No. 81147, June 20, 1989, 174 SCRA 154. 70 Supra note 38. 71 Utulo v. Pasion Vda. De Garcia, 66 Phil. 303. 72 Balalad v. Rublico, G.R. No. 160743, August 4, 2009, 595 SCRA 125. 73 Heirs of Arturo Reyes v. Beltran, G.R. No. 176474, November 27, 2008, 572 SCRA 211. 68

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prohibition applies only to parties who have taken part in the extrajudicial settlement, not to third persons who had no participation in the proceedings.74

6. Period of action for reconveyance based on implied or constructive trust. The period to file an action for reconveyance, based on implied or constructive trust in relation to an heir who did not participate in or who had no knowledge of the extrajudicial partition, prescribes in ten (10) years75 from the alleged fraudulent registration or issuance of certificate of title over the property,76 except if there was bad faith in securing the certificate of title, in which case the reckoning period is from actual discovery. It is important to note that the Torrens title is not a shield for fraud.77

F. PROBATE OR AUTHENTICATION OF A WILL 1. Will defined. A will is an act whereby a person is permitted, with all the formalities prescribed by law, to control to a certain degree the disposition of the estate and to take effect upon his death.78 2. Formal Requisites in Execution and Attestation of Wills. Under the new Civil Code, the formal legal requisites for the due execution and attestation of wills are: a) The will must be in writing and executed in a language or dialect known to the testator;79 b) Except in the case of a holographic will, every will must be subscribed at the end thereof by the testator or by the testator’s name written by some other person in his presence, and under his direction;80 c) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;81 d) The testator or the person requested by him to write his name and the attesting witnesses shall also sign, as aforesaid, on each and every page of the will, except the last, on the left hand margin thereof;82

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Supra note 38. Amerol vs. Bagumbaran, G.R. No. 33261, September 30, 1987, 154 SCRA 396; Marquez vs. Court of Appeals, G.R. No. 125715, December 29, 1998, 300 SCRA 653. 76 Government Service Insurance System (GSIS) v. Santiago, G.R. No. 155206, October 28, 2003; 414 SCRA 563. 77 Samonte vs. Court of Appeals, G.R. No. 104223, July 12, 2001, 316 SCRA 173. 78 NEW CIVIL CODE, Art. 783. 79 Id., Art. 804. 80 Id., Art. 805 81 Id. 82 Id,; Aluad vs. Aluad, G.R. No. 176943, October 17, 2008, 569 SCRA 697. 75

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e) All the pages of the will shall be numbered correlatively in letters placed on the upper part of each page;83 f) The attestation clause shall state the number of pages used and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the attesting witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them;84 and g) The will must be acknowledged before a notary public by the testator and the witnesses.85 h) In the case of a holographic will, it must be entirely written, dated, and signed by the hand of the testator himself. It need not be witnessed.86 Petition for probate of will may be initiated by: a) Testator during his lifetime (ante mortem probate);87 b) After the death of testator;88 1. Any executor, devisee or legatee named in the will. 2. Any person interested in the estate. c) When a party is directed by the court pursuant to the Rules of Court.89 3. Time to submit will to the court a) Within twenty (20) days from knowledge of the death of the testator, the custodian of a will shall deliver the will to the court or to the executor named in the will.90 b) The executor, on the other hand, has twenty (20) days from knowledge of the death of the testator or knowledge of the fact that he is named executor to submit the will to the court, unless the will has reached the court already.91

4. Time for executor to signify acceptance or refusal of trust. Within the same period, an executor shall signify to the court in writing whether he accepts or refuses the trust. 83

NEW CIVIL CODE, Art. 805. Id., Art. 805. 85 Id., Art. 806. 86 Id., Art. 810. 87 Id., Art. 838. 88 Id., 89 RULES OF COURT, Rule 3, Sec. 16. 90 Id., Rule 75, Sec. 2. 91 Id., Sec. 3. 84

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5. Sanctions for Failure. A person who neglects any of the duties required without excuse satisfactory to the court shall be fined and those having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.92 a) A person who neglects to submit the will without excuse satisfactory proven to the court, shall be fined in an amount not exceeding PhP2,000.00. b) The custodian, who refuses to comply with the order of the court to deliver the will, when ordered to do so, may be committed to prison until he delivers the will.93 6. Contents of petition. A petition for the allowance of will shall allege the following: a) jurisdictional facts; 1. that a person died leaving a will; 2. the testator at the time of death is a resident within the territorial jurisdiction of the court; and 3. the testator is non-resident at the time of death but left property within the territorial jurisdiction of the court. b) names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; c) probable value and character of the property of the estate; d) name of the person for whom letters are prayed; and, e) if the will has not been delivered to the court, the name of the person having custody of it. No defect in the petition, however, shall render void the allowance of a will, or the issuance of letters testamentary or of administration with the will annexed.94

7. Time to prove or contest the will. The court shall fix a time and place for proving the will where all concerned may appear to contest the allowance thereof.95 8. Publication of notices; exception. The required notice shall be published three (3) weeks successively, previous to the time appointed, in a newspaper of 92

Id., Secs. 4 and 5; Uy v. Lee, G.R. No. 176831, January 15, 2010. Id., Rule 75, Sec. 2 to 5. 94 RULES OF COURT, Rule 76, Sec. 2. 95 Id., Sec. 3. 93

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general circulation in the province.96 Probate of a will is a proceeding in rem. The requirement of publication is for constructive notice to the whole world so that if the will is allowed, judgment is binding upon every person.97 But where the petition for probate has been filed by the testator himself, no newspaper publication shall be made.98 9. Persons entitled to notice. The persons entitled to notice are the heirs, devisees and legatees, residing in the Philippines, notified by mail or personally. The executor if not the petitioner, shall also be notified by mail or personally. The mail shall be deposited in the post office with the postage prepaid at least twenty (20) days before the hearing if the places of residence are known.99 Personal service of copies of the notice at least ten (10) days before the day of the hearing shall be equivalent to mailing. If the testator is the petitioner, only the compulsory heirs are entitled to notice. Compulsory heirs under Art. 887 of the New Civil Code are: a) Legitimate children and descendants, with respect to their legitimate parents and ascendants; b) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; c) The widow or widower; d) Acknowledged natural children, and natural children by legal fiction; e) Other legitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. At the hearing, compliance with the provisions on notice and publication shall be shown before the introduction of testimony in support of the allowance of the will. All testimony shall be taken under oath and reduced to writing. 100 10. Proof required at the hearing for the probate of a will. At the hearing, the proponent must first prove: (a) publication of the notice of hearing, and (b) service of the notice of hearing, to all known heirs, legatees and devisees, and to the executor, if he is not the petitioner.101

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Id., Supra note 38. 98 Id. 99 Id., Rule 76, Sec. 4. 100 Id., Rule 76, Sec. 5. 101 Id. 97

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11. Evidence required for allowance of will a) If the allowance of the will is not contested: i. The court may grant allowance on the testimony of one subscribing witness.102 ii. If the will is holographic, at least one witness who knows the handwriting of the testator shall be presented; in the absence of such competent witness, expert testimony may be resorted to.103 b) If the allowance of the will is contested: i. All the subscribing witnesses and the notary public must be produced and examined104. ii. If any or all of the attesting witnesses testify against the due execution of the will, other witnesses may be presented105. iii. If the will is holographic, three witnesses who know the handwriting of the testator must be presented; in the absence of such competent witnesses, expert testimony may be resorted to106. c) If the subscribing witnesses are dead, insane or not residents of the Philippines, the court may admit the testimony of other witnesses107. d) The death, insanity or absence of subscribing witnesses must be satisfactorily shown to the court. If they are residing in the Philippines but outside the province where the probate is being conducted, their depositions may be taken108. e) Where the testator petitions for allowance of his holographic will: i. If the petition is not contested, his own testimony shall be sufficient; ii. If the petition is contested, the burden of disproving the genuineness and due execution of the will shall be on the contestant; iii. The testator, in his turn, may present rebuttal evidence109. 12. Proof required when a will is lost or destroyed. A will may be proved as lost or destroyed when – 102

Id. Id. 104 Id., Sec. 11. 105 Id. 106 Id. 107 Id., Rule 76, Sec. 8. 108 Id., Sec. 11. 109 Id., Sec. 12. 103

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a) its execution and validity have been established; b) the will is proved to have been in existence at the time of the death of the testator; c) if it has been destroyed, it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and d) its provisions are clearly and distinctly proved by at least two credible witnesses.110 This is applicable only to notarial wills.111

13. Jurisprudence In a relevant case,112 the Supreme Court held that the intention of the law is to give the near relatives the choice of either complying with the will if they consider it authentic, or to oppose it, if they believe it is spurious. Verily, the purpose is frustrated when the document is not presented for their examination. If it is argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if authentic, a right which they should not be denied by withholding inspection thereof from them. Authentication does not also invalidate the will. According to the Supreme Court, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication only results in the disallowance of such changes. The requirements of authentication of changes and signing and dating of dispositions are provided for in Articles 813 and 814 of the Civil Code, while that which provides for the necessary conditions for the validity of the holographic is Article 810.113 14. Contesting a will. Anyone appearing to contest a will must state in writing the grounds for opposing its allowance and serve a copy thereof on the petitioner and other parties interested in the estate.114 It is well-settled that in construing the provisions of a will, the intent of the testator is controlling.115

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Id., Sec. 6; Estate of Suntay, 50 O.G. 5321. Rodelas v. Aranza, G.R. No. 58509, December 7, 1982, 119 SCRA 16. 112 Testate Estate of Felicidad Esguera Alto-Yap, G.R. No. 12190, August 30, 1958. 113 Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488. 114 RULES OF COURT, Rule 76, Sec. 10. 115 Rama v. Joaquin, G.R. No. 169400, September 12, 2008, 565 SCRA 104. 111

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15. Grounds for disallowance of a will. A will may not be allowed in the following instances: a) if the will was not executed and attested as required by law; b) if the testator was insane, or otherwise mentally incapable to make a will at the time of its execution; c) if the will was executed under duress, influence of fear, or threats; d) if the will was procured by undue and improper pressure and influence on the part of the beneficiary, or of some other person for his benefit; and, 5) if the signature of the testator was procured by fraud or trick, and that the testator did not intend that the instrument should be his will at the time of fixing his signature.116 16. Letters testamentary issued when will is allowed. When a will has been proved and allowed, the court shall issue letters testamentary to the person named executor if he is competent, accepts the trust and gives a bond.117 However, where some co-executors are disqualified, others who are competent may perform the duties and discharge the trust required by the will.118

G. LETTERS OF ADMINISTRATION If no executor is named in the will, or the executor or executors are incompetent, refuse the trust or fail to give bond or a person dies intestate, administration shall be granted to and observing the following order of preference: 1) surviving spouse or next of kin or both or to such person requested by them, if competent and willing to serve; 2) one or more of the principal creditor; or, 3) any other person that the court may select.119 Upon notice to the known heirs, creditors of the decedent, and any other persons believed to have an interest in the estate and after hearing, the court shall issue letters of administration to the party best entitled thereto. The letters of administration may be granted, however, to any qualified applicant if other competent persons having better right to the administration fail to appear when notified and claim the issuance to them.120 1. Jurisprudence a) Defect in the petition does not render letters of administration void and discretionary execution allowed in special circumstances. No defect in the petition shall render void the issuance of letters of administration.121 Section 2, Rule 39 of the Rules of Court allows discretionary execution where 116

RULES OF COURT, Rule 76, Sec. 9. Id., Rule 78, Sec. 4. 118 Id., Sec. 5. 119 Id., Rule 76, Secs. 4 and 6. 120 Id., Rule 79, Secs. 3, 5, and 6. 121 Id., Sec. 2. 117

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SPECIAL PROCEEDINGS

special reasons or circumstances exist as when the estate would be left without an administrator and the prompt settlement of the estate had already been unduly delayed.122 b) The court may allow immediate assumption into office of appointed administration pending appeal. The trial court does not act with grave abuse of discretion in ordering the immediate assumption into office of one who has been appointed as administrator before the perfection of an appeal from the order appointing him as such, where sufficient reasons exist to order execution pending appeal. c) Surviving spouse is preferred as administrator. The surviving spouse is preferred in the appointment of an administrator,123 interest in the estate being the principal consideration. Accordingly, the Supreme Court in the case of Gonzalez v. Aguinaldo, et.al.,124 held that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. 2. Contents of petition for letters of administration. The contents of a petition for letters of administration are as follows: jurisdictional 1) facts;125 2) names, ages and residences of the heirs, and the names and residences of the creditors and of the decedent; 3) probable value and character of the property of the estate; and, 4) name of the person for whom letters of administration are prayed.126 3. Persons disqualified from being appointed administrator or executor. A person is not competent to serve as executor or administrator in the following instances: a) minor person; b) not a resident of the Philippines; or, c) in the opinion of the court, the person is unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.127 Also, a judge cannot serve as executor, administrator, trustee, or guardian, except when acting

122

Supra note 38. RULES OF COURT, Rule 79, Sec. 6. 124 G.R. No. 74769, September 28, 1990, 190 SCRA 112. 125 The jurisdictional facts are the death of testator and residence within the country, as held in the case of Vda. De Manalo v. Court of Appeals, G.R. No. 129242, January 16, 2001, 349 SCRA 135. 126 RULES OF COURT, Rule 79, Sec. 2. 127 Id., Rule 79 and Rule 78, Sec 1. 123

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in a fiduciary capacity for the estate, trust or person of a member of the immediate family.128

H. APPOINTMENT OF A SPECIAL ADMINISTRATOR The appointment of a special administrator is necessary only when there is delay in granting letters testamentary if the decedent left a will or for administrative purpose, as when the decedent did not leave a will brought about by any cause. The principal reason of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person allowed under the law to administer it for the benefit of creditors and the heirs.129 Special Administrator may also be appointed when the executor or administrator has a claim against the estate he represents.130 1. Jurisprudence a. Appointment of special administrator maybe revoked based on loss of confidence. The Supreme Court found no grave abuse of discretion on the part of the court when it revoked the appointment of respondents as joint special administrators, the removal being grounded on reason, equity, justice, and legal principle. Even if special administrators had already been appointed, once the probate court finds the appointees no longer entitled to its confidence; it is justified in withdrawing the appointment and giving no valid effect thereto.131 b. Termination of appointment or removal of special administrator. The special administrator may be removed on grounds other than those mentioned in Rule 82 referring to death, resignation or removal.132 And, when an executor or administrator is appointed, the powers of the special administrator cease and the special administrator shall immediately deliver the estate to the executor or administrator who may take over legal suits commenced by the special administrator.133 The order of the probate court appointing a special administrator is not appealable.134 The remedy is certiorari because the appointment and removal of special administrator rests on the sound discretion of the court. 128

Ramos v. Judge Barot, A.M. MTJ-001338, January 21, 2004, 420 SCRA 406. Tan v. Hon. Gendorio, et. al., G.R. No. 166520, March 14, 2008; 548 SCRA 528. 130 RULES OF COURT, Rule 86, Sec. 8. 131 Ocampo et. al., v. Ocampo, G.R. No. 187879, July 5, 2010. 132 De Gala v. Gonzales, 53 Phil. 104 (1929); Roxas v. Pecson, 82 Phil. 407 (1948). 133 RULES OF COURT, Rule 80, Sec. 3. 134 Id., Rule 109, Sec. 1 (e). 129

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3. General powers and duties of executors and administrators. An executor and administrator shall have the following powers and duties: 1) maintain the estate in “tenantable repair” and deliver the same to the heirs or devisees when directed by the court;135 2) possess and manage the estate of the deceased for the payment of the debts and expenses of administration;136 3) have access to partnership books and property where the deceased was a partner, examine the same and upon his written application, the court may order any surviving partner to permit the exercise of the rights and to exhibit the books and property and may punish any partner failing to do so for contempt;137 and, 4) with the approval of the court, to compound or compromise with a debtor of the deceased.138 But, the administrator may only deliver properties of the estate to the heirs after the payment of the debts, funeral charges and other expenses against the estate, except when authorized by the court.139 I.

INVENTORY, APPRAISAL, AND EXCLUSIONS

Within three (3) months after appointment, an executor or administrator shall file a true inventory and appraisal of all the real and personal estate of the deceased, with the assistance of one or more inheritance tax appraisers, as may be ordered by the court.140 The articles that shall not be inventoried are the following: 1) the wearing apparel of the surviving spouse and minor children; 2) the marriage bed and bedding; and, 3) such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. Further, they shall not be considered as assets, nor administered as such.141 In a case, it was held that the probate court may determine if properties shall be included in the inventory. Inasmuch as the probate court can resolve questions of title provisionally, it may determine whether the properties should not be included in the inventory or list of properties to be administered by the administrator. However, if there is a dispute as to title, the parties, the administrator and the opposing parties shall resort to an ordinary action for the final determination of the conflicting claims as the probate court has no authority to do so.142

135

RULES OF COURT, Rule 84, Sec. 2. Id., Sec. 3. 137 Id., Sec. 1. 138 Id., Rule 87, Sec. 4. 139 Silverio, Jr. v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1. 140 RULES OF COURT, Rule 83, Sec. 1. 141 Id., Sec. 2. 142 Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997, 279 SCRA 647. 136

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J. ALLOWANCE TO THE WIDOW AND FAMILY The widow and minor or incapacitated children of the deceased, during the settlement of the estate, shall receive allowance as are provided by law.143 And, under Section 3 of Rule 83, allowances for support are not limited to the “minor or incapacitated” children of the deceased but extends to the deceased’s legitimate spouse and children, regardless of their age, civil status or gainful employment, who are entitled to provisional support from the funds of the estate. The allowance for support is pursuant to Article 188 of the Civil Code which is rooted on the right and duty to support, especially the right to education that subsists even if the children are already beyond the age of majority. 144 Grandchildren are not entitled to provisional support from the funds of the decedent’s estate. The law clearly limits the allowance to “widow and children” and does not extend it to the deceased’s grandchildren, regardless of their minority or incapacity.145

K. SALES, MORTGAGES AND PAYMENT OF DEBTS The approval by the probate court is necessary where specific properties of the estate are sold, but not when only ideal and indivisible shares of an heir are disposed of.146 The sale or mortgage of specific estate property may be approved by the court under the following circumstances: 1) for the payment of debts pay the obligation of the estate; and, 2) if a part of the real property cannot be sold, or otherwise encumbered without injury to those interested in the remainder, the disposition may be of the whole of the property, or so much as necessary or beneficial under the circumstances.147

1. Persons interested may prevent sale by filing bond. Persons interested may prevent a sale, mortgage, or encumbrance by giving a bond in a sum to be fixed by the court, conditioned to pay the obligations of the estate. Such bond shall be for the security of the creditors, as well as the executor or administrator.148

143

RULES OF COURT, Rule 83, Sec. 3. Estate of Hilario Ruiz, et. al., v. Court of Appeals, et. al., G.R. No. 118671, January 29, 1996; 252 SCRA 541. 145 Id. 146 Heirs of Pedro Escanlar v. Court of Appeals, G.R. No. 119777, October 23, 1997, 281 SCRA 176. 147 RULES OF COURT, Rule 89, Sec. 2. 148 Id., Sec. 3. 144

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2. Jurisprudence The mortgage of property of estate without authority of the court is void, thus, the purchaser at public auction acquires no title over the property. The real estate mortgage contracts, as well as the correlative extrajudicial foreclosure and the sale of the property described therein at public auction, can be attacked directly and collaterally.149 L. CONDITIONS FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR ENCUMBER THE ESTATE The conditions for granting authority to sell, mortgage or encumber the estate are as follows: 1) the executor or administrator shall file a written petition, setting forth the following: [a] the debts due from the deceased, [b] the expenses of administration, [c] the legacies, [d] the value of the personal estate, [e] the condition of the estate to be sold, mortgaged, or otherwise encumbered, and [f]) such other facts as will show that the sale, mortgage, or other encumbrance is necessary or beneficial; 2) the court shall then cause notice to the persons interested, stating the nature of petition, the reason for the same, the time and place of hearing and the court may cause further notice by publication or otherwise; 3) the court may direct the executor or administrator to give an additional bond to account for the proceeds of the sale, mortgage, or other encumbrance; and, 4) the court may then grant the petition to sell, mortgage or encumber in proper cases, such part of the estate as it deems necessary. For the mode of sale, the court may authorize the sale to be public or private, as would be most beneficial to all parties concerned. If the property is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale. The transaction and court order shall be recorded in the registry of deeds.150 M. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Rule 87, Section 1 of the Rules of Court provides that no action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator. But, actions that survive, such as a claim to recover real or personal property, or an interest therein from the estate or to enforce a lien 149 150

Orola v. Pontevedra, G.R. No.158566, September 20, 2005, 470 SCRA 352. RULES OF COURT, Rule 89, Sec. 7. E-21

SPECIAL PROCEEDINGS

thereon, and actions to recover damages for an injury to person151 or property, real or personal, maybe commenced against the executor or administrator. 1. Jurisprudence Felonies committed in forcing parties to sign an agreement is an action against the executor or administrator. The Supreme Court, in one case, ruled that the Rules of Court has separate provisions for different claims against the estate of a decedent under Section 5 of Rule 86152 and Section 1 of Rule 87.153 If, as insisted by petitioners, respondents committed felonies in forcing them to sign the letter-agreement, petitioners, according to the Supreme Court, should have filed an action against the executor or administrator of the estate based on Section 1, Rule 87 of the Rules of Court, not a claim against the estate based on contract.154

2. Actions that survive. In general, executors and administrators may bring or defend actions that survive. Actions that survive are those actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal.155 Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86 of the Rules of Court as these actions, being civil in nature, survive the death of the decedent and may be commenced against the administrator, pursuant to Rule 87, Section 1, of the Rules of Court.156 3. Claims that do not survive. Claims that do not survive, on the other hand, are money claims that are filed in the estate proceedings or any of the following: a) claims arising from contract, express or implied, whether due, not due or contingent;157 b) all claims for funeral expenses; c) expenses for the sickness of the decedent; and, d) judgment for money against the decedent, which should be presented in the form of claims against the estate.158 If the deceased was a mortgagee or assignee of the right of a mortgagee, the mortgage may be foreclosed by the executor or administrator.159 151

Melgar v. Buenviaje, G.R. No. 55750, November 8, 1989, 179 SCRA 196. Claims that must be filed under the notice to creditors, such as money claims. 153 Actions that may or may not be brought against the executor or administrator. 154 ABS-CBN Broadcasting Corporation, et. al., v. Office of the Ombudsman, et. al., G.R. No. 133347, April 23, 2010. 155 RULES OF COURT, Rule 87, Sec. 1. 156 Hilado et. al., v. Court of Appeals, G.R. No. 164108, May 8, 2009, 587 SCRA 464. 157 These claims are specifically described as contractual money claims in the RULES OF COURT, Rule 3, Sec. 20. 158 RULES OF COURT, Rule 86, Sec. 5; Belamala v. Polinar, G.R. No. 24098, November 18, 1967, 21 SCRA 970. 159 Id., Rule 87, Sec. 5. 152

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N. PROCEEDINGS WHEN PROPERTY IS CONCEALED, EMBEZZLED OR FRAUDULENTLY CONVEYED When a person is suspected of having concealed, embezzled or conveyed away any of the money or chattels of the deceased, or such person possesses or knows of a document which contains evidence of or tends to disclose the right of the deceased to real or personal estate, or the last will and testament of the deceased, the court may cite such suspected person to appear or to answer, and may examine him on oath.160 If the person so cited refuses to appear and give rogatories, the court may punish him for contempt and may commit him to prison until he submits to the order of the court. The interrogatories, if there are any, and the answers thereto, shall be in writing and shall be filed in court.161 O. DOUBLE VALUE RULE It is provided under Rule 87, Section 8, of the Rules of Court, that a person who, before the granting of letters testamentary or administration, embezzles or alienates any money, goods, chattels or effects of the deceased, shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property misappropriated, to be recovered for the benefit of the estate. This applies to a situation where the embezzlement causes loss to the estate.162 P.

RENDITION OF ACCOUNT

A person entrusted by the executor or administrator with property of the deceased, may be compelled to render a full account on oath before the court.163 A person who embezzles or alienates property of the deceased before issuance of letters testamentary or of administration is liable for double the value of the property embezzled.164

160

Id., Sec. 6. Id. 162 Marshall v. Anthalz, 54 Phil. 448 (year). 163 RULES OF COURT, Rule 87, Sec. 7. 164 Id., Sec. 8. 161

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Q. REMEDY FOR FRAUDULENT CONVEYANCE BY THE DECEASED DURING HIS LIFETIME By an executor or administrator In case of fraudulent conveyance, an executor or administrator may file an action as when there is a deficiency of assets to pay the debts, but the deceased during his lifetime conveyed property with intent to defraud his creditors, the conveyance would by law be void as against creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, unless the creditors pay for the costs and expenses thereof or give security as the court deems equitable;165

R.

By the creditor in the name of the executor or administrator In case of fraudulent conveyance, a creditor may file an action upon the filing of a bond approved by the court to indemnify the executor and or administrator subject to the following requirements: 1) deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; 2) deceased in his lifetime made or attempted to make fraudulent conveyance of his real or personal property or a right or interest therein, or debt or credit, with intent to defraud his creditors or to avoid any right, debt or duty or had so conveyed such property, right, debt or credit that by law, the conveyance would be void as against his creditors; 3) subject of the attempted conveyance would be liable to attachment by any of them in his lifetime; 4) the executor or administrator have shown to have no desire to file the action or failed to institute the same within reasonable time; 5) leave of court; and, 6) bond; in the name of executor or administrator.166

STATUTE OF NON-CLAIMS

Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file the same in the office of the clerk of court.167 In the notice to file money claims, the court shall state the time for the filing of the claims against an estate which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. The period is to ensure the speedy settlement of the estate for the benefit of the creditors and those entitled to the residue.168

165

Id., Sec 9. Oscar M. Herrera, REMEDIAL LAW III-A, 2005 Ed., pp. 174-175. 167 RULES OF COURT, Rule 86, Sec. 11. 168 Sikat v. Vda. De Villanueva, 57 Phil. 486 (1932). 166

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S.

EXTENSION OF PERIOD TO ALLOW CONTINGENT CLAIM

However, before an order of distribution is issued, the court may, for cause shown and on such terms as are equitable, allow a claim to be filed within a time not exceeding one (1) month.169 1. Jurisprudence a. Court has discretion to extend period. In one case, the Supreme Court ruled that Rule 86, Section 2, of the Rules of Court gives the probate court discretion to allow claims presented beyond the period fixed, provided that they are filed within one (1) month from the expiration of the period but in no case beyond the date of entry of the order of distribution. Thus, a contingent claim filed within both periods is allowed.170 b. Pendency of the case before the regular courts is good excuse for delay of claim. More to the point, the period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed anytime before an order of distribution is entered, at the discretion of the court for cause and upon such terms as are equitable. And, the pendency of the case before the regular courts was considered a good excuse for the delay of the claim.171

T.

FILING OF CLAIMS

A claim may be filed with the clerk of court with the necessary vouchers and supporting affidavits, serving a copy of thereof on the executor or administrator. 172 If the claim is not due, or is contingent, it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant.173 1. Money claim against the estate does not require certification of nonforum shopping. A certification of non-forum shopping is required only for complaints and other initiatory pleadings and not in contingent money claim against the estate of a decedent which is not an initiatory pleading. The whole probate proceeding is initiated upon the filing of the petition for allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money

169

RULES OF COURT, Rule 86, Sec. 2. Danan v. Buencamino, G.R. No. 57205, December 14, 1981, 110 SCRA 352. 171 Echaus v. Blanco, G.R. No. 41295, December 4, 1989, 179 SCRA 704. 172 RULES OF COURT, Rule 86, Sec. 9. 173 Id. 170

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claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims.174

U. TYPES OF CLAIM TO BE PRESENTED The claims that must be filed under the notice are as follows: a) all claims for money against the decedent arising from contract, express or implied, whether the same be due, not due, or contingent; b) all claims for funeral expenses and expenses for the last sickness of the decedent; and, c) judgment for money against the decedent.175 V. TIME BAR AND SET-OFF Claims that are not filed within the time limited in the notice are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commended by the deceased in his lifetime, a debtor may set forth in an action by the executor or administrator against him, by answer, the claims he has against the decedent, instead of presenting them independently as a claim against the estate and mutual claims may be set off against each other in such action. Claims that are not yet due, or are contingent, may be approved at their present value.176

W. DISPOSITION OF ADMITTED CLAIM AND TRIAL OF CONTESTED CLAIM Any claim admitted by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court may order that known heirs, legatees, or devisees be notified and heard.177 If an heir, legatee, or devisee opposes the claim, the court may allow the opposing party fifteen (15) days to answer the claim. Upon the filing of an answer or upon the expiration of the time for filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.178

174

Sheker v. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111. RULES OF COURT, Rule 86, Sec. 5. 176 Id. 177 Id., Sec. 11. 178 Id., Rule 86, Secs. 11 and 12. 175

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X.

APPEAL OF JUDGMENT

The judgment of the court approving or disapproving a claim is appealable179. A judgment against the executor or administrator to pay shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.180 1. Jurisprudence Appeal as to commission of the special administrator can proceed independently of the certiorari regarding the appointment of an auditor. In a case decided by the Supreme Court, it was held that the matter appealed was the special administrator's commission, a charge that is a claim against the estate under administration, while the matter covered by the petition for certiorari was the appointment of an auditor who would pass upon the special administrator's final account. By their respective natures, according to the Court, these matters can exist independently of one another and can proceed separately, as provided for by Rule 109 of the Rules of Court.181

Y. PAYMENT OF DEBTS 1. Where there are sufficient assets to pay the debts: a) If the testator makes provision by his will or designates the estate to be appropriated for the payment of debts, they shall be paid according to the provisions of the will.182 b) If the estate designated in the will is not sufficient, such part of the estate as is not disposed of by will shall be appropriated for the purposed.183 c) The personal estate not disposed of by will shall be first chargeable with payment of debts and expenses.184 d) If the personal estate is not sufficient, or its sale would be detrimental to the participants of the estate, the real estate not disposed of by will shall be sold or encumbered for that purpose.185 e) Any deficiency shall be met by contributions from devisees, legatees and heirs who have entered into possession of portions of the estate before debts and expenses have been paid.186

179

Id., Rule 109, Sec. 1 (c). Id., Sec. 13. 181 Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008, 563 SCRA 69. 182 RULES OF COURT, Rule 88, Sec. 2. 183 Id. 184 Id., Sec. 3. 185 Id. 186 Id., Sec. 6. 180

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f) The executor or administrator shall retain sufficient estate to pay contingent claims when the same become absolute.187

2. Where the estate is insolvent. a) The executor or administrator shall pay the debts in accordance with the preference of credits established by the Civil Code.188 b) No creditor of any one class shall receive any payment until those of the preceding class are paid.189 c) If there are no assets sufficient to pay the credits of any one class of creditors, each creditor within such class shall be paid a dividend in proportion to his claim.190 d) Where the deceased was a non-resident, his estate in the Philippines shall be disposed of in such a way that creditors in the Philippines and elsewhere may receive an equal share in proportion to their respective credits.191 e) Claims duly proved against the estate of an insolvent resident of the Philippines, the executor or administrator having had the opportunity to contest such claims, shall be included in the certified list of claims proved against the deceased. The owners of such claims shall be entitled to a just distribution of the estate in accordance with the preceding rules if the property of such deceased person in another country is likewise equally apportioned to the creditors residing in the Philippines and other creditors, according to their respective claims.192

3. The payment of debts of the deceased shall be made pursuant to the order of payment issued by the probate court193.

Z.

TIME FOR PAYING DEBTS AND LEGACIES

The executor or administrator shall pay the debts and legacies of the deceased within a period of time fixed by the court, which shall not exceed one (1) year, but the court may, on motion of the executor or administrator and after hearing, extend the time as the circumstances of the estate require, not exceeding six (6) months for a single extension, but the whole period allowed to the original executor or administrator shall not exceed two (2) years.194 187

Id., Sec. 4. Id., Sec. 7. 189 Id., Sec. 8. 190 Id. 191 Id., Sec. 9. 192 Id., Sec. 10. 193 Id., Rule 88, Sec. 11. 194 Id., Sec. 15. 188

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AA. WHEN ORDER OF DISTRIBUTION OF RESIDUE MADE Under Rule 90, Section 1 of the Rules of Court, the properties of the estate shall only be distributed after the payment of the debts, funeral charges, allowance of the widow, inheritance tax, if any, and other expenses on the application of the executor or administrator, except when authorized by the Court.195

BB. COLLATION Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator.196 Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.197 Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor's will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee.198

195

Silverio, Jr., v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1. Vizconde v. Court of Appeals, G.R. No. 118449, February 11, 1998, 286 SCRA 217. 197 CIVIL CODE, Art. 1061. 198 Supra note 196. 196

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CC. ACCOUNTABILITY ADMINISTRATORS

AND

COMPENSATION

OF

EXECUTORS

AND

1. Administrator not liable or cannot profit from the increase or suffer loss from the decrease. No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. An executor or administrator must account for the excess when any part of the estate is sold for more than the appraised value, and if any is sold for less, the executor or administrator is not responsible for the loss, if the sale has been justly made. If the executor or administrator settles any claim against the estate for less than its nominal value, the executor or administrator is entitled to charge in his account but only the amount actually paid on the settlement.199 Moreover, no executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault.200

2. Accountability for income from realty used by him. If the executor or administrator uses or occupies any part of the real estate, he shall account for it as may be agreed upon between the executor or administrator and the parties interested or adjusted by the court with their assent. If the parties do not agree, the amount may be ascertained by the court, whose determination shall be final.201

3. Liability of executor or administrator for delay. When an executor or administrator incurs unreasonable delay in collecting the debts or selling the estate of the deceased, or neglects to pay over the money he has in hand, and the value of the estate is lessened or unnecessary cost or interest accrue, or the persons interested suffers loss, the damage sustained may be charged against the executor or administrator and he shall be liable on the bond.202

4. Necessary expenses allowed. An executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, four (4) pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed203 of in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, of:

199

RULES OF COURT, Rule 85, Sec. 2. Id., Sec. 3. 201 Id., Sec. 4. 202 Id., Sec. 5. 203 Id., Sec. 7. 200

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i. ii. iii. iv.

2% of the first P 5,000 1% of more than P 5,000 but not more than P 30,000; ½% of more than P 30,000, but not more than P 100,000; and ¼ % of more than P 100,000.

5. Greater sum allowed in special cases. But in any special cases, where the estate is large, and the settlement is attended with great difficulty requiring a high degree of capacity on the part of the executor or administrator204 a greater sum may be allowed by the court. If objection to the fees allowed be taken, the allowance may be re-examined on appeal.205 When the deceased by will makes some other provision for the compensation of the executor, it shall be a full satisfaction for services rendered, unless by a written instrument filed in the court the executor renounces all claims to the compensation provided in the will.206

6. Compensation of two or more executors. If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively.207 7. Attorney’s fees. If the executor or administrator is a lawyer, he shall not charge against the estate any professional fees for legal services rendered,208 but may employ the services of an attorney.209 As a general rule, it is the executor or administrator who is primarily liable for attorney's fees due to the lawyer who rendered legal services for the executor or administrator in relation to the settlement of the estate. The executor or administrator may seek reimbursement from the estate for the sums paid in attorney's fees if it can be shown that the services of the lawyer redounded to the benefit of the estate.210 8. Recourse of lawyer if executor or administrator refuses to pay attorney’s fees. The Supreme Court, in the case of Salonga Hernandez & Allado v. Pascual and Court of Appeals,211 held that if the executor or administrator refuses to pay the attorney's fees, the lawyer has two modes of recourse. First, the lawyer may file an action against the executor or administrator, but in his/her personal capacity and not as administrator or executor. Second, the lawyer may file a petition in the testate or intestate proceedings, asking the court to direct the 204

De Gala-Sison v. Madella, et.al., G.R. No. L-24584, October 30, 1975, 67 SCRA 478. RULES OF COURT, Rule 85, Sec. 7. 206 Id. 207 Id. 208 Id. 209 Quasha Ancheta Pena v. LCN Construction Corp., G.R. No. 174873, August 26, 2008, 563 SCRA 426. 210 Gonzalez-Orense v. Court of Appeals, G.R. No. 80526, July 18, 1988, 163 SCRA 477. 211 G.R. No. 127165, May 2, 2006, 488 SCRA 449. 205

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payment of attorney's fees as an expense of administration. If the second mode is resorted to, it is essential that notice to all the heirs and interested parties be made so as to enable these persons to inquire into the value of the services of the lawyer and on the necessity of his employment. 9. When executor or administrator shall render an account. It is mandatory for an administrator to render an account within one (1) year from appointment. The only exception is when the court directs otherwise by reason of extensions of time within which to present claims against the estate, pay the debts or dispose of the assets of the estate.212 The heirs, legatees, and creditors of the estate and the executor or administrator may be examined on oath on any matter relating to an administration account.213 Before the account of an executor or administrator is allowed, notice shall be given to persons interested of the time and place of examining and allowing the same; and such notice may be given personally or by advertisement in a newspaper or newspapers, or both, as the court directs.214 A person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.215 DD. DISTRIBUTION AND PARTITION Except as otherwise expressly provided under the Rules, every executor or administrator is chargeable as follows: 1) with the whole of the estate of the deceased which has come into his possession, at the value of the appraisement contained in the inventory; 2) with all the interest, profit, and income of such estate; and, 3) with the proceeds of so much of the estate as is sold by him, at the price at which it was sold.216 The distribution of the estate can only be made after strict compliance with the provisions of the Rules of Court. 217 Hence, the estate may be distributed only if the debts, funeral charges, expenses of administration, the allowance to the widow and inheritance tax, if there are any, have been paid

EE. ACCOUNTING OF ALL EXPENSES AND BOND In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. However, the heirs or distributees of the properties may take possession thereof even before the

212

Kalaw v. Intermediate Appellate Court, G.R. No. 74618, September 2, 1992, 289 SCRA 213. RULES OF COURT, Rule 85, Sec. 9. 214 Id., Sec. 10. 215 Id., Sec. 11. 216 Id., Sec. 1. 217 Id., Rule 90. 213

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settlement of accounts, as long as they first file a bond conditioned on the payment of the estate’s obligations.218

FF. ISSUE AS TO EXPENSES THAT REMAIN UNSETTLED Where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate such as expenses related to the deceased person’s final illness and burial that have not been properly settled. Thus, in one case, the heirs have to submit their father’s estate to settlement because the determination of these expenses cannot be done in an action for partition. GG. JUDICIAL EXPENSES OF THE TESTAMENTARY OR INTESTATE PROCEEDINGS In one case, the Supreme Court construed the phrase "judicial expenses of the testamentary or intestate proceedings" as not including the compensation paid to a trustee of the decedent's estate when it appeared that such trustee was appointed for the purpose of managing the decedent's real estate for the benefit of the testamentary heir. The same is true with premiums paid on the bond filed by the administrator as an expense of administration since the giving of a bond is in the nature of a qualification for the office, and not necessary in the settlement of the estate.219

HH. ADVANCE DISTRIBUTION No distribution shall be allowed until the payment of the obligations has been made and provided it refers to a part of the estate that is not affected by any controversy and the distributees or any of them give a bond in a sum to be fixed by the court conditioned for the payment of the obligations within such time as the court directs.220 A judge commits a grave abuse of discretion when he orders a partial distribution of the estate without the payment of estate taxes.221

II. DISTRIBUTION OF RESIDUE OF ESTATE The court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or 218

Figuracion-Gerilla v. Vda. de Figuracion, G.R. No. 154322, August 22, 2006, 499 SCRA 484. Commissioner of Internal Revenue v. Court of Appeals, et. al., G.R. No. 123206, March 22, 2000, 328 SCRA 666. 220 Supra note 209. 221 Vera v. Navarro, G.R. No. 27745, October 18, 1977, 79 SCRA 408. 219

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parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. JJ. WHEN FINAL LIQUIDATION MAY BE SET ASIDE The only instance in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, according to the Supreme Court, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action, the effect of which, if successful, would be for another court or judge to throw out of decision or order already final and executed and reshuffle properties long ago distributed and disposed of.222 KK. PROJECT OF PARTITION Towards the end of the proceedings in a settlement of estate petition, a project of partition is usually prepared and presented to the court. The project of partition is a proposal for the distribution of the hereditary estimates and determines the persons entitled thereto.223 LL. EXPENSES OF PARTITION Expenses of partition may be paid by the executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator, otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises and the apportionment shall be settled and allowed by the court enforceable by execution.224

MM. FINAL ORDER OF PARTITION AND RECORDING OF THE ORDER OF PARTITION Certified copies of final orders and judgments of the court relating to the estate or partition shall be recorded in the registry of deeds of the province where the property is situated.225

222

Tirso T. Reyes v. Barreto-Datu, G.R. No. 17818, January 27, 1967, 19 SCRA 85. Moran, COMMENTS ON THE RULES OF COURT, 1997 ed., Vol. 3, pp. 688-689. 224 RULES OF COURT, Rule 90, Sec. 3. 225 Id., Sec. 4. 223

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III.

ESCHEATS A. DEFINITION A proceeding whereby the real and personal property of a deceased person become the property of the State upon his death without leaving any will or legal heirs.226 B. WHEN FILED A petition to escheat property is filed when a person dies intestate, leaving behind real or personal property but without an heir.227 C. WHO FILES PETITION The petitioner is the Solicitor General or his representative in behalf of the Republic of the Philippines.228 D. WHERE FILED The petition is filed in the Regional Trial Court where the deceased last resided or in which he had property if he resided out of the Philippines229 E. CONTENTS OF PETITION The petition shall set forth the facts and pray that the estate of the deceased be declared escheated.230 F. ORDER OF HEARING The court shall fix as date and place for the hearing of the petition, which date shall not be more than six (6) months after the rendition of the order.231

226

Municipal Council v. Colegio de San Jose, Inc., 65 Phil. 323 (1938). RULES OF COURT, Rule 91, Sec.1. 228 Id. 229 Id. 230 Id. 231 The Rules use the word “entry” but it means rendition. 227

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G. PUBLICATION The order shall also direct that a copy thereof shall be published at least once a week for six (6) successive weeks in some newspaper of general in the province as the court deems best.232 H. JUDGMENT After hearing, the court shall adjudge the properties escheated after payment of just debts and charges, and the properties shall be assigned pursuant to law as follows: 1. The personal estate shall be assigned to the municipality or city where the deceased last resided in the Philippines; 2. The real estate shall be assigned to the municipalities or cities, respectively, in which the same is situated. 3. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. 4. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.233 I. JUDGMENT IN ESCHEAT IS CONCLUSIVE AGAINST ALL PERSONS WITH NOTICE A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive against all persons with actual or constructive notice, but not against those who are not parties or privies thereto. As held in Hamilton v. Brown,234 "a judgment of escheat was held conclusive upon persons notified by advertisement to all persons interested. J. JURISPRUDENCE 1. Escheat judgment that has become final cannot be nullified. Absolute lack on the part of petitioners of any dishonest intent to deprive the appellee of any right, or in any way injure him, constitutes due process of law, proper notice having been observed. With the lapse of the 5-year period, therefore, private respondent has irretrievably lost her right to claim and the supposed ‘discovery of the deeds of donation’ is not enough justification to nullify the escheat judgment which has long attained finality.”235 232

Id., Sec. 2. Id., Sec. 3. 234 March 2, 1896, 161 U.S. 256. 235 Republic v. Court of Appeals, G.R. No. 143483, January 31, 2002, 375 SCRA 484. 233

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2. Escheat proceedings cannot be converted into a settlement proceeding. The court acquired jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat. The jurisdiction acquired can not be converted into one for the distribution of the properties of the said decedents. For such proceedings (for the distribution of the estate of the decedents) to be instituted, the proper parties must be presented and the proceedings should comply with the requirements of the Rule. Hence, the court of First Instance did not have the power to order, or to proceed with, the distribution of the estates of the decedents in these escheat proceedings, and adjudicate the properties to the oppositors.236 3. Doctrine of pari delicto in reversion or escheat proceedings. The Supreme Court ruled in one case237 that although ownership of the land cannot revert to the original sellers, because of the doctrine of pari delicto, the Solicitor General may initiate an action for reversion or escheat of the land to the State, subject to proper defenses.

4. When reversion will not prosper. When a Filipino citizen sells land to an alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale was validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is subsequently transferred to a qualified party or the buyer himself becomes a qualified party. Hence, reversion proceedings will no longer prosper since the land is now in the hands of Filipino citizens.

K. PERMANENT TRUST The court may order the establishment of a permanent trust so that only income from the property shall be used.238 Article 1013 of the Civil Code specifically allows a perpetual trust, because this provision of law is inapplicable. Suffice it to state that the article is among the Civil Code provisions on intestate succession, specifically on the State inheriting from a decedent, in default of persons entitled to succeed. Under this article, the allowance for a permanent trust, approved by a court of law, covers property inherited by the State by virtue of intestate succession. The article does not cure a void testamentary provision which did not institute an heir. Accordingly, the 236

In the matter of escheat proceedings of the estate of the deceased Anne Fallon Murphy and Tomas Fallon married to Julia Fallon v. Bezore, et al., G.R. No. L-14157, October 26, 1960. 237 Republic v. Register of Deed of Roxas City, G.R. No. 158230, July 16, 2008, 558 SCRA 450. 238 RULES OF COURT, Rule 91, Sec. 3. E-37

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article cannot be applied to dispose of herein decedent’s properties.239 If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.240 L. FILING OF CLAIM WITHIN FIVE (5) YEARS. If a person entitled to the estate escheated appears and files a claim with the court within five (5) years from the date of the judgment, he shall obtain possession and title to the property. If it has already been sold, the municipality or city shall be accountable to him for the proceeds, after deducting expenses for the care of the estate, but a claim not made within said time shall be forever barred.

M. OTHER ESCHEAT ACTIONS Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed also by Rule 91, except that the action shall be instituted in the province where the land lies in whole or in part. N. JURISPRUDENCE 1. Property transferred to a Filipino citizen can no longer be subject of reversion. In a case for reversion that was initiated only after forty (40) years from the promulgation of the case of Dinglasan v. Lee Bun Ting,241 the Supreme Court held that the sale of Lot No. 398 subject matter of the case was null and void for violating the constitutional prohibition on the sale of land to an alien. In addition, the Court stated that if petitioner had commenced reversion proceedings when Lot No. 398 was still in the hands of the original vendee who was an alien disqualified to hold title thereto, then reversion of the land to the State would undoubtedly be allowed. However, in this case, when petitioner instituted the action for reversion of title in 1995, Lot No. 398 had already been transferred by succession to private respondents who are Filipino citizens. Since Lot No. 398 has already been transferred to Filipino citizens, the flaw in the original transaction is considered cured.242

239

Orendain v. Trusteeship of the Estate of Dona Margarita Rodriguez, G.R. No. 168660, June 30, 2009, 591 SCRA 285. 240 Id.; Republic of the Philippines v. Intermediate Appellate Court and the City of Zamboanga, G.R. No. 73831, February 27, 1987, 148 SCRA 271. 241 G.R. No. 5996, June 27, 1956. 242 Republic v. Register of Deeds of Roxas City, G.R. No. 158230, July 16, 2008, 558 SCRA 450. E-38

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2. Nullity of repudiation does not operate to convert the property into res nulius for escheat in favor of government. In another case, the Supreme Court held that the acceptance or repudiation of an inheritance, once made is irrevocable and cannot be impugned, except when it was made through any of the causes that vitiate consent or when an unknown will appears. Nevertheless, the nullity of the repudiation does not ipso facto operate to convert the parcels of land into res nullius to be escheated in favor of the Government. The repudiation being of no effect whatsoever, the parcels of land should revert to their private owners. And a party, although an American citizen, is qualified by hereditary succession to own the property subject of the litigation.243

O. ESCHEAT OF UNCLAIMED BALANCES Unclaimed balances which include credits or deposits of money, bullion, security or other evidence of indebtedness of any kind, and interest thereon with banks, in favor of any person unheard from for a period of ten (10) years or more, together with the increase and proceeds thereof shall be deposited with the Insular Treasurer to the credit of the Government of the Philippine Islands as the Philippine Legislature may direct.244 P. OTHER ESCHEAT ACTIONS Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed also by Rule 91, except that the action shall be instituted in the province where the land lies in whole or in part. 1. Demand drafts not presented for payment are not credits subject to escheat. In a relevant case, the Supreme Court found that since it is admitted that the demand drafts involved have not been presented either for acceptance or for payment, the inevitable consequence is that the appellee bank never had any chance of accepting or rejecting them. Verily, the appellee bank never became a debtor of the payee concerned and, as such, the aforesaid drafts cannot be considered as credits subject to escheat within the meaning of the law.245

243

Republic v. de Guzman, G.R. No. 132964, February 18, 2000, 326 SCRA 267. Act. No. 3936, Sec. 1. As amended by Pres. Decree No. 679; See Republic v. City of Manila, No. 30381, August 30, 1988, 165 SCRA 11 . 245 Republic v. Philippine National Bank, G.R. No. 16106, December 30, 1961, 3 SCRA 851. 244

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IV. GUARDIANSHIP A. DEFINITION Persons who, though of sound mind but by reason of age, disease, weak mind or other similar causes are incapable of taking care of themselves and their property without outside aid, may properly be placed under guardianship.246 It is a trust relation of the most sacred character, in which one person, called the guardian, acts for another, called the ward, that the law regards as incapable of managing his own affairs.247 A guardian is a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person who, for defect of age, understanding, or self-control, is considered incapable to administer such person’s own affairs.248 B. NECESSITY FOR GUARDIANSHIP The purpose of hearing a petition for appointment of a guardian under Rule 93 of the Rules of Court is to determine, first, whether a person is indeed a minor or an incompetent who has no capacity to care for himself and/or his properties; and, second, who is most qualified to be appointed as his guardian. The Rules presuppose that those who best could help the court settle such issues are those who are closest to and most familiar with the alleged minor or incompetent.249 1. Guardian of an incompetent must be notified for a court to render judgment against him but no notices to creditors are required for appointment of a guardian. A court will have no jurisdiction to render judgment against one adjudged physically and mentally incompetent to manage personal affairs where no guardian was appointed upon whom summons and notice of the proceedings might be served. 250 However, the rules do not require that creditors of the minor or incompetent person be likewise identified and notified as their presence is not essential to the proceedings for appointment of a guardian.251

2. A child or minor person. Minor “children” refers to persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.252

246

Hernandez v. San Juan-Santos, G.R. No. 166470, August 7, 2009, 595 SCRA 464. Francisco v. Court of Appeals, G.R. 57438, January 31, 1984, 127 SCRA 371. 248 People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324. 249 Alamayri v. Pabare, G.R. No. 151243, April 30, 2008, 553 SCRA 147. 250 Gorostiaga v. Sarte, 68 Phil. 4 (1939). 251 Alamayri v. Pabale, G.R. No. 151243, April 30, 2008, 553 SCRA 146. 252 Rep. Act No. 7610, Sec. 3(a). 247

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3. An “incompetent” person as the subject of guardianship. “Incompetents” include the following: (1) individuals suffering from the penalty of civil interdiction; (2) hospitalized lepers; (3) prodigals; (4) deaf and dumb who are unable to read and write; (5) individuals who are of unsound mind even though with lucid intervals; and, (6) individuals who are not of unsound mind, but by reason of age, disease, weak mind, and other similar causes cannot, without outside aid, take care of themselves and manage their property, becoming easy prey for deceit and exploitation.253 a) Comatose person is an incompetent. The Supreme Court has considered a person in comatose or semi-comatose condition, a victim of stroke or cerebrovascular accident without motor and mental faculties and with diagnosis of brain stem infract as “incompetent”254 and, therefore, requires a petition for guardianship to be filed and not a petition for administration of conjugal partnership property under the Family Code. b) Person suffering from schizophrenia does not necessarily lose his competence to intelligently dispose his property. In one case, the Supreme Court found that by merely alleging the existence of schizophrenia, petitioners failed to show substantial proof that at the date of the donation, June 16, 1951, Feliciano Catalan had lost total control of his mental faculties and the lower courts correctly held that Feliciano was of sound mind at that time and that this condition continued to exist until proof to the contrary was adduced. Sufficient proof of his infirmity to give consent to contracts, according to the Supreme Court, was only established when the Court of First Instance of Pangasinan declared him an incompetent on December 22, 1953.255 4. Parents as guardians. When the value of the property of the child under parental authority is P 2,000 or less, the father or the mother, without the necessity of court appointment, shall be the legal guardian. However, when the property of the child is more than P 2,000, the father or the mother shall be considered guardians of the child’s property with the duties and obligations of guardians and shall file the required petition for guardianship. For good reasons the court may, however, appoint another suitable person.256

253

RULES OF COURT, Rule 92, Sec. 2. Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000, 346 SCRA 247. 255 Catalan et. al., v. Basa, G.R. No. 159567, July 31, 2007, 528 SCRA 645. 256 RULES OF COURT, Rule 93, Sec. 7. 254

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C.

KINDS OF GUARDIANS

There are three kinds of guardians under the law: 1) the legal guardian, who is such by provision of law without the need of judicial appointment, as in the case of the parents over the persons of their minor children, or the father, or in his absence the mother, with respect to the property of the minor children not exceeding P50,000.00 in value; 2) the guardian ad litem, who is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor; and, 3) the judicial guardian, or a person appointed by the court over the person and/or property of the ward to represent the latter in all civil acts and transaction.257

D. WHO MAY FILE A PETITION, GUARDIANSHIP PROCEEDING

JURISDICTION

AND

VENUE

IN

Under the Rules of Court, any relative, friend or other person in behalf of an incompetent who has no parent or guardian or the minor if fourteen (14) years of age or over, may petition for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent.258 The guardianship court, however, cannot adjudicate title.259 And a court order authorizing the sale of a ward’s property is subject to appeal, not certiorari and mandamus. 260 1. Compensation and expenses. The guardian is allowed reasonable expenses and such compensation as the court deems just, not exceeding 15% of the net income of the ward.261

2. Grounds for removal of a guardian. A guardian may be removed in the following instances: 1) becomes insane; 2) is otherwise incapable of discharging the trust; 3) becomes unsuitable; 4) has wasted or mismanaged the estate; and, 5) has failed for 30 days after it is due to render an account or make a return.262 However, a guardian cannot be removed or allowed to resign unless his accounting has been approved by the court.263 257

Id.; People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324. RULES OF COURT, Rule 93, Sec. 1. 259 Parco v. Court of Appeals, G.R. No. 33152, January 30, 1982, 111 SCRA 262. 260 Lopez v. Teodoro, 86 Phil 499 (1950). 261 RULES OF COURT, Rule 96, Sec. 8. 262 Id., Rule 97, Sec. 2. 263 Francisco v. Court of Appeals, G.R. No. 57438, January 3, 1984, 127 SCRA 371. 258

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If the petition refers to an adult incompetent, it shall be filed in the regular Regional Trial Court.264 If the ward transfers bona-fide residence, the court may transfer the guardianship case to the court of the place of the ward’s residence where real property may have been acquired and additional court fees are not required.265 3. Rule on Guardianship of Minor Children. On May 1, 2003 the Supreme Court issued A.M. No. 03-02-05-SC, otherwise known as the “Rule on Guardianship of Minors,” which applies to petitions for guardianship over the person or property, or both, of a minor child. On grounds authorized by law, a relative or other person on behalf of a minor, or the minor if fourteen (14) years of age or over, or the Secretary of the Department of Social Welfare and Development (DSWD), and the Secretary of Health in the case of an insane minor who has to be hospitalized, may file a petition for guardianship.266 E.

VENUE

A petition for guardianship involving a minor is filed with the family court or Regional Trial Court in places where there are no designated family court where the child resides. If the minor resides in a foreign country, the petition is filed with the family court of the province or city where the property of the minor or any part thereof is situated.267

F. GROUNDS FOR APPOINTMENT OF GUARDIAN OF A MINOR CHILD UNDER THE SUPREME COURT RULE The grounds for the appointment of a guardian are as follows: 1) death, continued absence, or incapacity of parents; 2) suspension, deprivation or termination of parental authority; 3) remarriage of surviving parent, if the latter Is found unsuitable to exercise parental authority; and, 4) when the best interest of the minor so requires.268

G. FACTORS CONSIDERED IN APPOINTING A GUARDIAN FOR A MINOR CHILD In appointing a guardian, the court considers the following: 1) moral character; 264

RULES OF COURT, Rule 92, Sec. 1. Id., Sec. 3. 266 A.M. No. 03-02-05-SC, May 1, 2003, Sec. 2. 267 Id., Secs. 2 and 3. 268 Id., Sec. 4. 265

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2) physical, mental and psychological condition; 3) financial status; 4) relationship of trust with the minor; 5) availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6) lack of conflict of interest with the minor; and, 7) ability to manage the property of the minor.269 H. ORDER OF PREFERENCE IN THE APPOINTMENT OF GUARDIAN FOR A MINOR CHILD In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, in the following order of preference: 1) surviving grandparent270 and in case several grandparents survive, the court selects any of them; 2) oldest brother or sister over twenty-one (21) years of age, unless unfit or disqualified; 3) actual custodian over twenty-one (21) years of age, unless unfit or disqualified; or, 4) any other person, who in the discretion of the court, would serve the best interest of the minor.271 I. BOND REQUIRED AND ITS CONDITIONS Before entering the execution of the trust, or issuance of letters of guardianship, an appointed guardian may be required to post a bond in a sum determined by the court conditioned as follows: 1) within three months after the issuance of letters of guardianship make inventory of all the property; 2) faithfully execute the duties of the trust; 3) render a true and just account of all the property of the ward; and, 4) perform all orders of the court.272 If the market value of the property or the annual income of the child exceeds P50,000.00, the parent furnishes bond in such amount as the court may determine, but in no case less than 10% of the value of the property or annual income, to guarantee the performance of the obligations of guardians.273

269

Id., Sec. 5. Vancil v. Belmes, G.R. No. 132233, June 19, 2001, 358 SCRA 707. 271 A.M. No. 03-02-05-SC, May 1, 2003, Sec. 6. 272 RULES OF COURT, Rule 94, Sec. 1. 273 Id., Sec. 16. 270

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Q. PERSONS DISQUALIFIED OR CONSIDERED UNFIT TO BE APPOINTED AS GUARDIANS Section 1, Rule 137 of the Rules of Court provides that judges or judicial officers, such as clerks of courts may not sit in any case in which they, their spouse, or child, is pecuniarily interested, as heir, legatee, creditor or otherwise, or in which they are related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which they have been executor, administrator, guardian, trustee or counsel, or in which they have presided in any inferior court when their ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.274 The disqualification of clerks of court in all levels is provided for under Section 1, Canon 3 of the Code of Conduct of Court Personnel, which states that “court personnel shall avoid conflicts of interest in the performance of their official duties.”275 The advanced age or non-residence of a person may be considered as grounds to deny appointment as guardian. In a relevant case, the Supreme Court found that the conclusion by the trial court that the guardian of advanced age is not fit to continue is not to be disturbed, particularly with his delay in making an accounting and filing an inventory. While age alone is not a controlling criterion, it may be a factor for consideration.276 Additionally, an American citizen who is a resident of Colorado, USA will not be able to perform responsibilities of a guardian over a person in the Philippines and may only delegate the same.277

R. TERMINATION OF GUARDIANSHIP, REMOVAL AND RESIGNATION OF A GUARDIAN When a guardian becomes insane or incapable of discharging the trust, unsuitable, wasted or mismanaged the property, or failed to render an account or make a return for thirty (30) days after it is due, the court may, on notice, remove the guardian and require surrender of the property of the ward to the person found to be lawfully entitled. Since the Rules enumerate the grounds for removal of a guardian, a guardian cannot be legally removed from office except for the causes therein mentioned. Accordingly, conflict of interest has been held sufficient ground for removal, premised on the logic that antagonistic interests would render a guardian unsuitable for the trust. To the extent that a court uses its discretion in appraising whether a person is unsuitable or incapable of discharging his trust, that 274

A.M. No. 08-4-1-SC, Re: Inhibition and/or Disqualification of Clerks of Court in all levels under Sec. 1, Canon III of the Code of Conduct of Court Personnel, June 3, 2008.; RULES OF COURT, Rule 137, Sec. 1. 275 Id. 276 Francisco v. Court of Appeals, G.R. No. 57438, January 31, 1984, 127 SCRA 371. 277 Vancil v. Belmes, G.R. 132223, June 19, 2001, 358 SCRA 707. E-45

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much it can be said that removal is discretionary. But the discretion must be exercised within the law, and when the latter has laid down the grounds for removal of a guardian, discretion is limited to inquiring as to the existence of any of those grounds.278

S. EFFECT OF REMOVAL OR RESIGNATION OF GUARDIAN The court may allow the guardian to resign for justifiable causes and on removal or resignation of the guardian, the court appoints a new one. No motion for removal or resignation is granted unless the guardian submits the proper accounting of the property of the ward and the court has approved the same.279

T. TERMINATION OF GUARDIANSHIP WHEN WARD COMES OF AGE OR DIES The court, motu proprio or on verified motion of any person allowed to file a petition for guardianship, may terminate the guardianship on the ground that the ward has come of age or has died. The guardian notifies the court of such fact within ten days from its occurrence.280 However, a guardian cannot be removed without approval of final accounting from the court. U. AMENDMENT TO THE RULES OF COURT A.M. No. 03-02-05-SC dated May 1, 2003 amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors continues to be under the jurisdiction of the regular courts and is governed by the Rules of Court.281

278

Gonzales v. Aguinaldo, G.R. No. 74769, September 28, 1990, 190 SCRA 112; In the matter of the guardianship of Carmen Padilla Vda. De Bengson v. Philippine National Bank, G.R. No. 17066, December 28, 1961, 3 SCRA 751. 279 RULE ON GUARDIANSHIP OF MINORS, Sec. 24. 280 Id., Sec. 25. 281 Id., Sec. 27. E-46

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V.

ADOPTION A. DEFINITION Adoption is a means devised in law so that persons who are otherwise childless or need one who has developed, and who are capable of giving the love, care and attention to a child that normally only the natural parents can tender, may take the child as their own.282 There is without any prescribed action that may be instituted for the judicial confirmation of a de facto adoption. Nor do our adjective and substantive laws on adoption provide for such a proceeding. In fact, the only proper and authorized procedure relative to adoption is outlined in the rule on adoption itself. No action or proceeding for judicial confirmation of a de facto adoption is authorized in this jurisdiction. Furthermore, by its very nature and purpose, a decree of adoption can never be made to retroact.283 The act of adoption fixes a status, vis., that of parent and child. More technically, it is an act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. It has been defined as the taking into ones family of the child of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to effect this new status of relationship between the child and its adoptive parents, the change of name which frequently accompanies adoption being more an incident than the object of the proceeding.284 B. GOVERNING LAWS 1. The basic governing law on domestic adoption is Republic Act No. 8552, which is “An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children.” It was approved on February 25, 1998. It took effect fifteen (15) days after its complete publication in the Official Gazette or in at least two newspaper of general circulation. 2. Inter-country or foreign adoptions, however, are governed by Republic Act No. 8043, which is “An Act Establishing the Rules to Govern Inter-Country Adoption of Filipino Children” approved on June 2, 1995. 3. Prior laws on adoption include provisions in the Child and Youth Welfare Code,285 the Family Code and Executive Order No. 91.286

282

Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3rd Ed., 1988, p. 37. Office of the Court Administrator v. Gines, A.M. No. RTJ-92-802, July 5, 1993, 224 SCRA 261. 284 Republic of the Philippines v. Court of Appeals and Maximo Wong, G.R. No. 97906, May 21, 1992, 209 SCRA 189. 285 Pres. Decree No. 603. 286 Effective date December 17, 1986, amending Arts. 28, 29, 30, 31, 33 and 35 of Pres. Decree No. 603. 283

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4. The Family Code expressly repealed Articles 17-19, 27-31, 39-42 of the Civil Code and Articles 27-29, 31, 33 and 35 of Presidential Decree No. 603. 5. And to implement the provisions of the Family Courts Act, the Supreme Court promulgated the “Rule on Adoption,”287 which supersedes Rules 99 and 100 of the Rules of Court on adoption.

C.

DOMESTIC ADOPTION 1. Coverage. The Rule covers the domestic adoption of Filipino children. 2. Persons who may adopt. Pursuant to Section 4 of the Rule, the following persons may adopt: 1) any Filipino citizen of legal age, at least sixteen [16] years older than the adoptee, except when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; 2) any alien possessing the same qualifications as above-stated for Filipino and has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption; and 3) the guardian with respect to the ward. 3. Exceptions to the requirements of residency The requirements on residency and certification of the alien’s qualification to adopt in the country of the alien may be waived for the following: 1] a former Filipino citizen adopting a relative within the 4th degree of consanguinity or affinity; or 2] a person adopting the legitimate child of the Filipino spouse; or 3] a person married to a Filipino citizen and seeks to adopt jointly with spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. 4. Joint adoption. Husband and wife shall jointly adopt, except in the following instances: 1) if one spouse is adopting the legitimate child of one spouse by the other spouse; 2) if one spouse is adopting own illegitimate child: provided that the other spouse signified consent thereto; or 3) if the spouses are legally separated from each other. In case a husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority is exercised by both spouses.288 5. Persons who may be adopted. The following persons may be adopted: 1) any person below eighteen [18] years of age; 2) the legitimate child of one spouse, by the other spouse; 3) an illegitimate child; 4) a person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child; 5) a child whose adoption was previously rescinded; 6) a child whose biological or

287 288

RULE ON ADOPTION, A.M. No. 02-6-02-SC, effective August 22, 2002. Id., Sec. 4. E-48

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adoptive parents have died; or, 7) a child not otherwise disqualified by law or the rules.289 6. Certification of child adoption by the DSWD. Republic Act No. 9523, otherwise known as “An Act Requiring Certification of the Department of Social Welfare and Development (DSWD) requires the department to Declare a Child Legally Available for Adoption as a Pre-requisite for Adoption Proceedings”, made the adoption process administrative in nature as it now only requires a certification signed by the DSWD Secretary, in lieu of a judicial order. The statute also gives the DSWD the authority to declare a child eligible for adoption if “deserted” or “neglected” by a parent continuously for more than three (3) months. 7. Where petition for adoption is filed. The petition for adoption is filed with the family court of the province or city where the prospective adoptive parents reside.290 8. Requirements for petition filed by a Filipino citizen. If filed by a Filipino citizen, the petition shall comply with Section 7(1) of the Rule by stating the jurisdictional facts and that the petitioner is of legal age and at least sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent. 9. Requirements for petition filed by an alien. A petition for adoption filed by an alien conforms to the requirements of Section 7(2) of the Rule by alleging the following jurisdictional facts: 1) that the alien’s country has diplomatic relations with the Republic of the Philippines; 2) legal capacity to adopt in the alien’s country and the latter’s government allows the adoptee to enter that country as adopted child and reside there permanently; and 3) the adopter alien has been living in the Philippines for at least three [3] continuous years prior to the filing of the petition and maintains such residence until the adoption decree is entered. 10. Exceptions to requirements of certification of the alien’s qualification to adopt in the country and residency. Section 7(2) (e) of the Rule provides that the certification of alien’s qualification to adopt in the country and residency requirements may be waived if the alien: 1) is a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; 2) seeks to adopt the legitimate child of Filipino spouse; or, 3) is married to a Filipino citizen and seeks to adopt jointly with spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

289 290

Id., Sec. 5. Id., Sec. 6. E-49

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11. Child and Home Study Reports. In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case may be. The social worker shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Section 7(b) of Rep. Act No. 8552. If after the conduct of the case studies, the social worker finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner.291 12. Supervised trial custody. Section 15 of the Rule provides that before issuing the decree of adoption, the court gives the adopter trial custody of the adoptee for a period of at least six (6) months and monitored by the social worker. During the period, temporary parental authority is vested in the adopter. The court, motu proprio or on motion of any party, may reduce the period or exempt the parties if it finds that the same shall be for the best interest of the adoptee. 13. Completion of six (6) months trial custody by an alien adopter. An alien adopter must complete the six (6) month trial custody, except the following: 1) a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or 2) one who seeks to adopt the legitimate child of Filipino spouse; and, 3) one who is married to a Filipino citizen and seeks to adopt jointly with spouse the latter’s relative within the 4th degree of consanguinity or affinity.292 14. Decree of Adoption. As provided under Section 16 of the Rule, if the supervised trial custody is satisfactory to the parties and the court is convinced from the report and the evidence adduced that the adoption redounds to the best interest of the adoptee, a decree of adoption is issued which takes effect as of the date the original petition was filed even if the petitioners die before its issuance. The decree shall: 291 292

Id., Sec 13. Id., Sec. 15. E-50

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a) State the name by which the child is to be known and registered b) The use of surname of the biological mother as middle name of the adopted child is allowed upon adoption by the natural father, as there shall be liberal construction of adoption laws to promote adoption.293 c) Order: 1) the Clerk of Court to issue to the adopter a certificate of finality; 2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar; and 3) the Civil Registrar of the place where the adoptee was registered as follows: a) to annotate on the adoptee’s original certificate of birth the decree of adoption within thirty [30] days from receipt of the certificate of finality; b) to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate; c) to seal the original certificate of birth; and, d) to submit to the court issuing the decree of adoption proof of compliance within thirty [30] days from receipt of the decree. If the adoptee is a foundling, the court orders the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate is ordered prepared by the Civil Registrar in accordance with the decree.294 15. Book of adoption. The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree.295 16. Rescission of adoption. The adoption may be rescinded based on any of the following grounds committed by the adopter: 1) repeated physical and verbal maltreatment by the adopter; 2) attempt on the life of the adoptee; 3) sexual assault or violence; and, 4) abandonment or failure to comply with parental obligations. a) Rescission is available to the adoptee not to the adopting parents. Adoption, however, being in the best interest of the child, is not subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.296 The petition is filed with the family court of the city or province where the adoptee resides.297 293

In the Matter of Adoption of Stephanie Nathy Astorga, G.R. No. 148311, March 31, 2005, 454 SCRA 541. 294 RULE ON ADOPTION, A.M.No. 02-6-02-SC, Sec. 16. 295 Id., Sec. 17. 296 Id., Sec. 19. 297 Id., Sec. 20. E-51

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b) Rescission of adoption is not allowed under the Domestic Adoption Law. In a relevant case, the spouses who adopted a nephew filed a petition for revocation of the adoption on the ground that the adoptee refused to change the family name to that of the adopting parents and that the adoptee neglected them. The Supreme Court disallowed the petition it having been filed after the Domestic Adoption Law has taken effect under which rescission of adoption is not allowed.298 c) Period within which to file petition for rescission of adoption. The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after reaching the age of majority, or if was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency.299 The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof.300 d) Order of rescission. Section 23 of the Rule provides that if the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption and parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department of Social Welfare and Development is restored if the adoptee is still a minor or incapacitated and further declares that the reciprocal rights and obligations of the adopter and the adoptee to each other are extinguished. e) Effect of rescission on succession rights. The court shall, under Section 23 of the Rule, further declare that succession rights revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission are be respected. It shall also order the adoptee to use the name stated in the original birth or foundling certificate. f) Cancellation of new birth certificate. Upon rescission of adoption, the court further orders the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate the original birth or foundling certificate.301

298

Lahom v. Sibulo, G.R. No.143989, July 14, 2003, 406 SCRA 135. RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 21. 300 Id., Sec. 22. 301 Id., Sec. 23. 299

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D.

INTER-COUNTRY ADOPTION 1. Coverage. The provisions apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad.302

2. Who may file petition. A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the Inter-Country Adoption Board (ICAB).303 Only a child legally available for domestic adoption may be the subject of intercountry adoption.304

3. Contents of petition. The petition must allege that the petitioner possesses the following qualifications: 1) at least twenty-seven [27] years of age and at least sixteen [16] years older than the child to be adopted at the time of application; 2) if married, the name of the spouse who must be joined as co-petitioner; 3) has the capacity to act and assume all rights and responsibilities of parental authority under own national laws; 4) has not been convicted of a crime involving moral turpitude; 5) eligible to adopt under own national law; 6) can provide the proper care and support and instill the necessary moral values; 7) agrees to uphold the basic rights of the child; 8) comes from a country with which the Philippines has diplomatic relations; and, 9) possesses all the qualifications and none of the disqualifications.305 4. Support to the would-be adopted child. The primary consideration in adoption being the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child, or children, The Court held that the monthly income of US$ 1000 in Guam is not enough to support three children. In one case, a fifty-year-old American citizen residing in Guam, working as a part-time waitress and earning an average income of USD$1000 a month was not allowed to adopt three (3) minor children of a brother due to limited income.306 5. Order issued if petition is sufficient in form and substance. The court, after finding that the petition is sufficient in form and substance and the petition is a proper case for inter-country adoption, immediately transmits the petition to the Inter-Country Adoption Board (ICAB) for appropriate action.307 302

Id., Sec. 26. Id., Sec. 28. 304 Id., Sec. 29. 305 Id., Sec. 30. 306 Landingin v. Republic, G.R. No. 164948, June 27, 2006, 493 SCRA 415. 307 RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 32. 303

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6. Requirements for child adopted in the Philippines to be brought to the United States.308 The United States is now a full member of the Hague Convention on Protection of Children and Co-operation in Respect of InterCountry Adoption.309 The Convention governs all adoptions between the United States and other 75 countries that are parties to the Convention, including The Philippines. As a result, U.S immigration law provides for conditions when bringing someone who is not a person’s child by birth to the United States, to wit: 1) the child must have been legally adopted310 before the age of 16 or be the sibling of a child who was adopted by the same parents while under the age of 18; and 2) by virtue of an adoption decree by a court having jurisdiction over the matter.

Additional requirements for issuance of immigrant visa to the child There are two additional requirements that must be met to be eligible for a U.S. immigrant visa as a child of an American citizen: 1] the adoptive parents must have had legal custody of the child for at least two (2) years; 311 and 2] the child must have physically resided with the adoptive parents for at least two (2) years prior to immigration.312

308

http://manila.usembassy.gov/wwwh3205.html; http://adoption.state.gov/. Id., The Hague Convention seeks to prevent the abduction, sale, or trafficking of children. It establishes international norms and procedures for processing inter-country adoption cases involving other Convention members, and protects the rights of children, birth parents, and adoptive parents while promoting transparency, accountability, and ethical practices among adoption service providers. 310 Id., The adoption must be legal and final. Simply providing financially for the child does not satisfy the legal adoption requirement. 311 Id., “Legal custody” must be awarded by order of a court or recognized government entity. The start of legal custody begins on the date the adoptive parents were granted legal custody of the child, or the date the adoption was finalized, whichever comes first (in the Philippines, the grant of custody is retroactive to the date the petition was filed). An informal custodial or guardianship document, such as a sworn affidavit signed before a notary public, is insufficient for this purpose. 312 Id., During this time, the adoptive parents must exercise primary parental control. Evidence must be presented to establish that the child and the adoptive parents had a bona fide parent-child relationship during any periods they resided separately. 309

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VI.

TRUSTEES A. DEFINITION A trust is the confidence reposed in one person who is termed trustee, for the benefit of another who is called cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust.313 A trustee is a person to whom property or funds have been committed in the belief or trust that he will hold and apply the same for the benefit of those who are entitled thereto according to an express intention by the parties themselves or by deed, will settlement or arrangement of another.314

B. APPOINTMENT Upon a proper petition, a trustee may be appointed to carry into effect the provisions of a will or written instrument.315 A non-resident alien, however, may not avail himself of the same right. The petition may be filed in the Regional Trial Court in which the will was allowed, if allowed here; if not, by the Regional Trial Court in the region in which the property or part thereof affected by the trust is situated. No publication is required but the appointment is after notice to all persons interested is made. Similar to executors and administrators, the trustee also files a bond in an amount fixed by the court, except when the court orders otherwise.316 1. Corporation sole is trustee of affairs, properties and temporalities of the religious denomination and may amend the articles of incorporation. Section 110 of the Corporation Code provides that a corporation sole administers and manages, as trustee, the affairs, properties and temporalities of the religious denomination, sect or church. As such, a corporation sole can exercise such corporate powers that are necessary to carry out its duties of administering and managing the affairs, properties and temporalities of the religious organization, provided that such powers are not inconsistent with the law and the Constitution. One of the powers authorized under Section 36 of the Corporation Code is the power to amend the articles of incorporation.317

313

Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3rd ed., p. 967. Id. 315 RULES OF COURT, Rule 98, Sec. 1. 316 Id., Sec. 5. 317 Separate concurring opinion of Mr. Justice Antonio T. Carpio in the case of Iglesia Evangelica Metodista en las Islas Filipinas (IEMELIF) v. Bishop Lazaro, et. al., G.R. No. 184088, July 6, 2010. 314

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C. FIDUCIARY "Fiduciary" means "a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires." A fiduciary primarily acts for another's benefit, pursuant to his undertaking as such fiduciary, in matters connected with said undertaking. 318 D. DISQUALIFICATIONS TO BE APPOINTED AS TRUSTEE A judge designated as attorney-in-fact is a trustee and cannot appear in behalf of his uncle in the Department of Agrarian Reform Adjudication Board (DARAB) hearing. In a relevant case, the Supreme Court declared that when respondent judge acted as attorney-in-fact for his uncle, Florencio Barot, he likewise undertook to perform all acts necessary to protect the latter's interests including attending scheduled hearings in the DARAB case. The possibility of a scheduled hearing for the DARAB case conflicting with his own calendared hearings in his sala is not altogether far-fetched. But far worse is the possibility that respondent's official position and stature might have affected the outcome of the DARAB case.319

E. BOND The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Failure to do so shall be considered to have declined or resigned the trust. The conditions of the bond for the trustee are as follows: 1) make and return to the court a true inventory of all the real and personal estate that at the time of the inventory shall have come to his possession or knowledge; 2) manage and dispose of all such estate according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; 3) render a true account of the property in his hands; and, 4) at the expiration of the trust, settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto.

F. SALE OR ENCUMBRANCE OF TRUST ESTATE The trustee shall file an inventory and is authorized to sell or encumber trust property with approval of the court.320 When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court may, on petition and after due notice and hearing, order such sale or encumbrance, and the 318

Supra note 128. Id. 320 Id., Sec. 6. 319

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reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform to the provisions on sale or encumbrance by guardians of the property of minors or wards.321

G. COMPENSATION OF TRUSTEE The compensation of the trustee is to be fixed by the court or is determined in the instrument creating the trust.322

H. REMOVAL OF TRUSTEE The court may remove a trustee in the following instances: 1) the removal appears essential in the interests of the petitioners; 2) the trustee is insane; or 3) the trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation.323

321

Id., Sec. 9. Id., Sec. 7. 323 Id., Sec. 8. 322

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VII. PROCEEDINGS FOR THE HOSPITALIZATION OF INSANE PERSONS A.

DEFINITION

Insanity is a manifestation in language or conduct, of disease or defect of brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or by disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition.324 B. WAYS OF COMMITMENT 1. Voluntary 2. Involuntary a. Civil b. Criminal

C. VENUE A petition for the hospitalization of an insane person is filed with the Regional Trial Court of the place where the person alleged to be insane is found.325 D.

WHO CAN FILE THE PETITION

The petition maybe filed by the Director (now Secretary) of the Department of Health when, in his opinion, the commitment to a hospital or other place for the insane is for the public welfare, or the welfare of the alleged insane who in his judgment is truly insane and such person or the one in charge of him is opposed to the commitment. The Provincial or City Fiscal represents the Director of Health in court. And, the court shall provide for the custody of the property or money of the insane until a guardian is duly appointed.326

E.

DISCHARGE

The Director (Secretary) of Health shall file a petition for discharge if the person committed is temporarily or permanently cured, or may be released without danger.327 324

People of the Philippines v. Dungo, G.R. No. 89420, July 31, 1991, 199 SCRA 860. RULES OF COURT, Rule 101, Sec. 1. 326 Id., Sec. 3. 327 Id., Sec. 4. 325

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F. COMMITMENT OF CHILDREN The Supreme Court issued A.M. No. 02-1-19-SC, otherwise known as the “Rule on Commitment of Children,” which took effect on April 15, 2002. The Rule applies to the commitment of dependent, abandoned, neglected, and disabled children. Its objective is to ensure that every effort is exerted to promote the child's welfare and enhance opportunities for a useful and happy life. The Rule seeks to protect the child from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to development.328

328

RULE ON COMMITMENT OF CHILDREN, Sec. 1. E-59

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VIII. HABEAS CORPUS A. DEFINITION The Latin term habeas corpus, which literally means “you have the body,” is a high prerogative writ, of ancient common-law origin, the great object of which is the liberalization of those who may be imprisoned without sufficient cause. Basically, it is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.329 Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained, such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and, therefore, invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final.330

B. FUNCTION AND SCOPE OF THE WRIT Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to “all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.” The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person and, if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate.331 The writ of habeas corpus generally extends to all cases of illegal confinement or detention by which a person is either: 1) deprived of liberty, or 2) the rightful custody of a person is withheld from the person entitled thereto.332 The writ obtains immediate relief for those who have been illegally confined or imprisoned without sufficient cause. The writ, however, should not be issued when the custody over the

329

Paynaga v. Wolfe, 2 Phil. 146 (1903). Chavez v. Court of Appeals, G.R. No. 29169, August 19, 1968, 24 SCRA 657. 331 In the Matter of Petition for Habeas Corpus Engr. Ashraf Kunting, G.R. No. 167193, April 19, 2006, 487 SCRA 602. 332 RULES OF COURT, Rule 102, Sec. 1. 330

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person is by virtue of a judicial process or a valid judgment. 333 And, the writ of habeas corpus is not available to one who is already out on bail.334 Similarly, habeas corpus may not be used to obtain evidence on the whereabouts of a person or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. Consequently, in one case, the Supreme Court found that when the respondents, in making the return of the writ, stated that they never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary. It is because the return of the writ must be taken on its face value and must be taken as true for the purpose of the habeas corpus proceedings.335 C. MEANING OF DEPRIVATION OF FUNDAMENTAL OR CONSTITUTIONAL RIGHTS There is restraint of liberty where one is deprived of freedom of action, such as the freedom of locomotion. 336 No court, however, is empowered as a judicial authority to compel a husband to live with his wife. Covertures cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.337 1. Lack of jurisdiction of the court to impose the sentence. A person may not be detained on the basis of a void judicial order, such as when the court issuing it had no jurisdiction over the crime charged; the place where the crime was committed; or of the person of the accused; 338 or where the court has no jurisdiction over the subject matter.339 2. Excessive amount of bail or incorrect penalty. The writ of habeas corpus also issues when excessive bail is required or the penalty imposed by the court is not provided by law.340 In all instances, however, the Rules of Court require that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus. And in one case, it was held that it is erroneous to grant the writ if the convicted prisoner merely served the minimum period of the sentence.341 333

Fletcher v. Director of the Bureau of Corrections, UDK-14371, July 17, 2009, 593 SCRA 265. Zacarias v. Cruz, G.R. No. 25899, November 29, 1969, 30 SCRA 729. 335 Martinez v. General Leandro Mendoza, et.al., G.R. No.53795, August 17, 2006, 499 SCRA 243. 336 Villavicencio v. Lukban, 39 Phil. 778 (1919). 337 Ilusorio v. Bildner, et. al., G.R. No.139789, May 12, 2000, 332 SCRA 169. 338 Malinao v. Raveles, 108 Phil. 1159 (1960). 339 Makapagal v. Santamaria, 55 Phil. 418 (1930). 340 llobrera v. Director of Prisons, 87 Phil. 179 (1950). 341 Office of the Court Administrator v. Judge Norma Perello, A.M. No. RTJ-05-1952, December 24, 2008, 575 SCRA 394. 334

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D. WHO MAY ISSUE The writ may be issued by the Supreme Court or by the Court of Appeals or any member thereof, enforceable anywhere in the Philippines, returnable to the same court or any member thereof, or to the Regional Trial Court or any judge thereof for hearing and decision.342

E. HABEAS CORPUS IN POST-CONVICTION DNA TESTING The Supreme Court Rule on DNA Evidence provides that post-conviction DNA testing is available to the prosecution or any person convicted by final and executory judgment, without prior need of court order, in cases where in a biological sample relevant to a case exists and the testing thereof would probably result in the reversal or modification of a judgment of conviction. When the test results are favorable to the person convicted, either the person convicted or the prosecution may file a petition for a writ of habeas corpus in the court of origin. When the court determines after due hearing that the petition is meritorious, it shall reverse or modify the judgment of conviction and order the release of the convicted person unless the latter is being detained for some other lawful cause.343

F. RULE ON CUSTODY AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS344 1. Rightful custody of a minor may be filed. The Rule on Custody and Writ of Habeas Corpus in Relation to Custody of Minors provides that a verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent. The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.345 2. Best interest of minor child is principal consideration in granting petition. Under the Rule,346 after trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. The Supreme Court made a pronouncement in the case of Dacasin v. Dacasin,347 that according to the settled doctrine in child custody proceedings, equity may be invoked to serve the child’s best interest.” 342

RULES OF COURT, Rule 102, Sec. 2. RULE ON DNA EVIDENCE, A.M. 06-11-5-SC, Sec. 10, October 2, 2007. 344 RULE OF CUSTODY OF MINORS AND W RIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS, Sec. 1, May 15, 2003. 345 Id., Secs. 2 and 3. 346 RULE OF CUSTODY OF MINORS AND W RIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS, Sec. 18. 347 G.R. No. 168765, February 5, 2010, 611 SCRA 657. 343

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3. Order of preference in custody of children when parents are unfit. However, if it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children. 348 4. Right to temporary visitation by parent deprived of custody. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.349

348 349

Id. Id. E-63

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IX. CHANGE OF NAME A. NAME DEFINED A name is that word or combination of words by which a person is distinguished from others and which he bears as a label or appellation for the convenience of the world at large in addressing him or in speaking of or dealing with him. 350 Consequently, the touchstone for the grant of a change of name is that there be ‘proper and reasonable cause’ for which the change is sought. So, a decision of a lower court, even if affirmed by the Court of Appeals, did not persuade the Supreme Court to depart from the applicability of the general rule on the use of surnames, specifically the law which requires that legitimate children shall primarily use the surname of their father.351 1. To erase signs of former nationality is a valid ground for change of name. A relevant case involves a petitioner who was born in Hong Kong and who came to the Philippines as a British subject. Petitioner subsequently became a naturalized Filipino. The evidence established sufficient justification for the petition for change of name to erase signs of the former nationality of petitioner which will unduly hamper his social and business life; to do away with his many aliases which is discouraged, apart from the fact that it will avoid confusion and will be for the convenience of the world at large in addressing him or in speaking of or dealing with him.352 2. Change of name on the ground that a Chinese national will soon be a Filipino not allowed. In a relevant case, Haw Liong wanted to change his name to Alfonso Lantin, as he would soon be a Filipino. The Supreme Court, however, held that there was no compelling reason for change of name. According to the Court, what may be considered as proper and reasonable causes that may warrant the change are: 1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; 2) when the request for change of name is a consequence of a change of status, such as when a natural child is acknowledged or legitimated; and 3) when the change is necessary to avoid confusion.353

B. CHANGE OF NAME BY JUDICIAL ORDER The Civil Code provides that no entry in the civil register shall be changed or corrected without a judicial order354 and that no person can change his name or

350

Yu v. Republic, G.R. No. 20874, May 25, 1966, 17 SCRA 253. Republic v. Court of Appeals, et. al., G.R. 88202, December 14, 1988, 168 SCRA 77. 352 Republic v. Intermediate Appellate Court, G.R. No. L-70513, October 13, 1986, 145 SCRA 25. 353 Haw Liong v. Republic, G.R. No. 21194, April 24, 1966, 16 SCRA 677. 354 CIVIL CODE, Art. 412. 351

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surname without judicial authority.355 And the Rules of Court provide that petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court as to innocuous or clerical errors only, a petition for change of name under Rule 103 cannot be decided through a summary proceeding. Here, the appropriate remedy is covered by Rule 103, a separate and distinct proceeding from Rule 108 on mere cancellation and correction of entries in the civil registry.356 The petition shall be filed in the Regional Trial Court of the place of residence of the person desiring the change of name.357 The petition shall allege the following: 1) that he is a bona fide resident of the region (province) for at least three [3] years; 2) the cause for the change of name; and 3) the name asked for.358 The hearing is held after notice and publication.359 The inclusion in the title of the petition for change of name and in the published order of the name sought to be authorized is jurisdictional.360 However, petitions for adoption and change of name cannot be joined. They are not same in nature and character nor do they present common questions of law and fact.361

C. CHANGE OF NAME THROUGH ADMINISTRATIVE PROCEEDINGS Articles 376 and 412 of the Civil Code on change of names were amended by Republic Act No. 9048,362 otherwise known as “An Act Authorizing the City Or Municipal Civil Registrar Or The Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of Name or Nickname in the Civil Register Without Need of a Judicial Order,” but only in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, R.A. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.363 Meaning of clerical or typographical error “Clerical or typographical error” means a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register 355

Id., Art. 376. G.R. No. 157043, Republic v. Capote, February 2, 2007; 514 SCRA 76. 357 RULES OF COURT, Rule 103, Sec. 1. 358 Id., Sec. 2. 359 Id., Secs. 3 and 4. 360 Go v. Republic, G.R. No. 31760, May 25 1977, 77 SCRA 65. 361 Republic v. Hernandez, G.R. No. 117209, February 9, 1996, 253 SCRA 509. 362 Effective date is April 22, 2001. 363 Silverio v. Republic, G.R. No. 174689, October 22, 2007, 537 SCRA 373. 356

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that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records.364 D. RESIDENT ALIENS Resident aliens may also petition for a change of name. A nonresident alien may not avail himself of the same right; such a proceeding would not be of much benefit to him.365 But the petition will not be entertained if the petitioner’s citizenship is either refuted or doubtful.366 E. CHANGE OF NAME BY A MINOR CHILD A minor may sign and verify a petition for a change of name subject to the required assistance of a guardian ad litem, although the absence of the latter does not void the proceeding as the petition can be amended.367 1. Change of name may be made to improve personality and social standing. A natural child, through her mother, petitioned to use the surname of the stepfather. The Solicitor General stated that this would hide the child’s illegitimacy. However, the Supreme Court held that there is nothing wrong with it, and that a change of name may be made to improve one’s personality or social standing and to promote the best interest of the child and as long as injury or prejudice is not a caused to anyone.368 2. Child was not allowed to adopt surname of mother’s second husband. The legitimate minor children were not allowed to adopt the surname of the mother’s second husband, because there would be a false impression of their family relations, as it could result in confusion in their paternity.369 The Supreme Court ruled in one case that there is no proper and reasonable cause shown in the petition for a change of surname of a child as confusion is likely to occur, adoption may be resorted to.370 3. Legitimate child cannot change surname of father who is a fugitive from justice. The legitimate minor children may not also be allowed to change the surname of a father who is a fugitive from justice to that of his mother. The Supreme Court held that there will be confusion as to parentage in that it might 364

Rep. Act No. 9048, Sec. 2(c). Ong Huan Tin v. Republic, G.R. No. 20997, April 27, 1967, 19 SCRA 966. 366 Basas v. Republic, G.R. No. 23595, February 20, 1968, 22 SCRA 652, 22 SCRA 652. 367 Tse v. Republic, G.R. No. 20708, August 31, 1967, 20 SCRA 1261. 368 Calderon v. Republic, G.R. No. 18127, April 5, 1967, 19 SCRA 721. 369 Padilla v. Republic, G.R. No. 28274, April 30, 1982; 113 SCRA 789. 370 Republic v. Court of Appeals, G.R. No. 88202, December 14, 1998, 300 SCRA 138. 365

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create the impression that the children are illegitimate since they would carry the maternal surname only, which is inconsistent with the legitimate status in their birth records.371 4. Republic Act No. 9255. Rep. Act No. 9255, otherwise known as “An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines,” which took effect on February 24, 2004, covers unregistered births and registered births wherein illegitimate children use the surname of their mother. The law applies to all illegitimate children born before or after the effective date of said law. 5. Recognition of the child in a document, public or private, is required. A document, public or private, wherein the child is recognized as such by the father is required. Such document may be an affidavit found at the back of the certificate of Live Birth (COLB), a separate public document executed by the father, or a private handwritten instrument made by the father expressly recognizing the child as his. In case of the latter, the instrument must be in the handwriting of the father and signed by him. 372 6. Affidavit to Use the Surname of the Father (AUSF). The Affidavit to Use the Surname of the Father (AUSF) is availed of in cases where recognition is made through a private handwritten instrument, or when the birth has already been registered under the mother's surname with or without the father's recognition. For private handwritten instruments, other documents are to be submitted to support the claim made. Accordingly, any two (2) of the following is needed: 1) employment records; 2) SSS/ GSIS records; 3) insurance; 4) certification of membership in any organization; 5) Statement of Assets and Liabilities; and 6) Income Tax Return (ITR). Consent of the child is necessary, if the eighteen (18) years old or more at the time of the recognition. The father, mother, child, if of legal age, or the guardian may file the public document or AUSF in order for the child to use the surname of the father.373 7. Procedure when a public document or AUSF is filed. After a public document or the AUSF is filed, the following guidelines must be followed: 1] if the child was born in the Philippines and the public documents or the AUSF was executed in the Philippines, the public document or the AUSF shall be registered with the Local Civil Registrar (LCR) of the place where the child was born; 2) if the child was born in the Philippines and the public document or the AUSF was executed outside of the Philippines, the public document or the AUSF shall be registered at the LCR of Manila; and, 3] if the child was born outside of the Philippines and the public document or the AUSF was executed in or outside of 371

Naldoza v. Republic, G.R. No. 55538, March 15, 1982, 112 SCRA 568. Implementing Rules and Regulations of Rep. Act No. 9255, effective May 14, 2004. 373 Id. 372

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the Philippines, the public document or the AUSF shall be registered at the LCR of Manila.374 8. Duty of Local Civil Registrar (LCR). Once the public document or the AUSF is registered, the LCR of the place of birth annotates the record of birth and the appropriate entry in the registry book. As to births outside of the Philippines, the annotation of the record of birth shall be accomplished by the Office of the Civil Registrar General (OCRG) and a recognition or acknowledgement made in a public document other than the record of birth or the AUSF is registered within twenty (20) days from the date of execution. Such procedure applies to an illegitimate child whose paternity has been admitted by the father.375 9. Procedure for registered births. When the birth of a child is registered, the original surname in the Certificate of Live Birth shall not be changed or corrected after availing of Rep. Act No. 9255. The appropriate procedure is to cause the necessary annotations in the Certificate of Live Birth showing the surname that the child shall use. In regard to births that have not yet been registered, a child can automatically use the surname of the father subject to the condition that the father executed an affidavit of admission of paternity at the time of registration.376

F. CHANGE OF NAME BY A MARRIED WOMAN There is no law which provides that the wife shall change her name to that of the husband after marriage. The wife's use of her husband's surname is optional and is permissive rather than obligatory. This in is consonance with the principle that surnames indicate descent. A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code.377 1. Resumption by woman of name after Muslim divorce is not change of name. The resumption by the wife of her maiden name after a Muslim divorce is not change of name under Rule 103. The proceeding filed to resume the use of the maiden name is a superfluity but it is directory.378 2. Woman who opted to use husband’s surname cannot change it in the renewal of her passport unless there is severance of marriage. Once a married woman opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of Republic Act No. 8239 or the Philippine Passport Act of 1996. 374

Id. Id. 376 Id. 377 Tolentino, CIVIL CODE OF THE PHILIPPINES, COMMENTARIES AND JURISPRUDENCE, 1990, Vol. I, p. 675. 378 Yasin v. Honorable Judge, Shari’a District Court, G.R. No. 94986, February 23, 1995, 241 SCRA 606. 375

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The instances are as follows: 1) death of husband; 2) divorce; 3) annulment; and (4) nullity of marriage. Since in this case379 the petitioner’s marriage to her husband subsists, she may not resume her maiden name in the replacement passport.

G. SPECIAL LAW ON PASSPORT PREVAILS OVER GENERAL LAW ON USE OF SURNAMES. The Supreme Court held that even assuming that R.A. 8239 conflicts with the Civil Code, the provisions of R.A. 8239, which is a special law specifically dealing with passport issuance, must prevail over the provisions of Title XIII of the Civil Code which is the general law on the use of surnames. It is a basic tenet in statutory construction that a special law prevails over a general law.380

H. CHANGE OF NAME OF PERSON WITH GENDER RE-ASSIGNMENT NOT ALLOWED The Supreme Court maintains that Philippine laws define who may file a petition for change of first name and for correction or change of entries in the civil registry, where they may be filed, and what grounds may be invoked. However, gender re-assignment is not a ground even under R.A. No. 9048, the purpose of the latter being to avoid confusion.381

I. CHANGE OF NAME DUE TO CONGENITAL ADRENAL HYPERPLACIA (CAH) In a relevant case, the Supreme Court held: “in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his personal judgment of being a male. xxx In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent's congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.”382

379

Remo v. Hon. Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010. Id. 381 Silverio v. Republic, G.R. No. 174689, October 22, 2007, 357 SCRA 373. 382 Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, 565 SCRA 72. 380

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X.

VOLUNTARY DISSOLUTION OF CORPORATION A. RULE 104 OF THE RULES OF COURT IS NO LONGER APPLICABLE TO VOLUNTARY DISSOLUTION OF CORPORATION Rule 104 of the Rules of Court on voluntary dissolution of corporations is no longer applicable. Proceedings for voluntary dissolution of corporations are governed by Pres. Decree No. 902-A and the Corporation Code, particularly Sections 117 to 122 thereof. B. REPUBLIC ACT NO. 8799 While proceedings for voluntary dissolution of corporation were formerly before the Securities and Exchange Commission, but under Rep. Act No. 8799 otherwise known as “The Securities Regulation Code”, approved on July 19, 2000, such cases have been transferred back to the regular courts. The pertinent provision of Rep. Act No. 8799 is Sec. 5.2, which provides as follows: The Commissioner’s jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred of the Courts general jurisdiction or the appropriate Regional Trial Court: Provided That the Supreme Court in the exercise of its authority may designate the Regional Trial Court shall jurisdiction over these cases. The Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved within (1) year from the enactment of this Code. The Commission shall retain jurisdiction over pending suspension of payment/rehabilitation cases filed as of 30 June 2000 until finally disposed. C. CASES COVERED Section 5 of Pres. Decree No. 902-A, mentioned in Sec. 5.2 of Rep. Act No. 8799, enumerates the following cases, to wit: 1) Devices or schemes employed by or any acts, of the board of directors, business associates, its officers or partners, amounting to fraud and misrepresentative which may be detrimental to the interest of the public and/or of the stockholder, partners, members of associations or organizations registered with the commission.

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2) Controversies-arising out of intra-corporate or partnership relations, between and among stockholder, members, or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity. 3) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations; and 4) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership, or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under Management Committee created pursuant to this Decree.383 D. JURISPRUDENCE 1. Securities and Exchange Commission (SEC) hearing officers have no more power to hear intra-corporate cases and cannot issue subpoena anymore. The Supreme Court has ruled that in light of Pres. Decree No. 902A’s repeal, the need to rule on the question of the extent of the contempt powers of an SEC hearing officer relative to his authority to issue subpoenas and orders to parties involved in intra-corporate cases, or potential witnesses therein has been rendered academic. The enactment of Rep. Act No. 8799 mooted this issue as SEC hearing officers, now bereft of any power to resolve disputes, are likewise stripped of their power to issue subpoenas and contempt orders incidental to the exercise of their quasi-judicial powers.384 E. APPEAL The decisions of the courts in the foregoing cases are appealable to the Court of Appeals, as provided by Section 70 of Rep. Act No. 8799 and of Rule 43, 1997 Rules of Civil Procedure.

383 384

As amended by Pres. Decree No. 1758, Sec. 3. Vesagas v. Court of Appeals, G.R. No. 142924, December 5, 2001, 371 SCRA 509. E-71

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F. CORPORATE REHABILITATION 1. Rules of Procedure on Corporate Rehabilitation. The Interim Rules of Procedure on Corporate Rehabilitation,385 which took effect on December 15, 2000, was amended by A.M. 00-8-10-SC386 or the Rule of Procedure on Corporate Rehabilitation. The Rule applies to petitions for rehabilitation of corporations, partnerships and associations pursuant to Pres. Decree No. 902-A, as amended. Cases on corporate rehabilitation were transferred from the Securities and Exchange Commission (SEC) to the Regional Trial Courts pursuant to Rep. Act No. 8799, otherwise known as The Securities Regulation Code, and shall likewise be governed by these Rules. 2. The governing law concerning rehabilitation and suspension of actions for claims against corporations is P.D. No. 902-A, as amended. In a case, the Supreme Court held that an essential function of corporate rehabilitation is the mechanism of suspension of all actions and claims against the distressed corporation, which operates upon the due appointment of a management committee or rehabilitation receiver. The governing law concerning rehabilitation and suspension of actions for claims against corporations is Pres. Decree No. 902-A, as amended. According to the Court, Section 6 (c) of the law mandates that, upon appointment of a management committee, rehabilitation receiver, board, or body, all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board, or body shall be suspended.387

385

A.M. No. 008-10-SC, November 21, 2000. Effective date January 16, 2009. 387 Castillo v. Uniwide Warehouse Club, Inc., G.R. No. 169725, April 30, 2010. 386

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XI. JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN A. PROVISIONS UNDER THE FAMILY CODE There is no longer any provision in the Family Code for acknowledged natural children. Children are either legitimate or illegitimate. What is to be proved is filiation, and voluntary recognition could be the means of providing filiation if the putative father or mother would later refuse to recognize the child. The relevant provisions of law are Articles 172,173 and 175 of the Family Code.

B. RECOGNITION OF ILLEGITIMATE CHILDREN In the case of illegitimate children, the action for recognition survives the death of either or both of the parties except when the action is based on the second paragraph of Article 172, referring to an action based on the open and continuous possession of the status of a legitimate child and any other means allowed by the Rules of Court in which case, the action may be brought only during the lifetime of the alleged parent.

C. APPLICABLE PROCEDURE The action under Rule 105 for judicial approval of voluntary recognition of minor natural children may be converted to an action for paternity and filiation. It is settled, however, that the status and filiation of a child cannot be compromised nor can be left to the will or agreement of the parties.388

D. ESTABLISHING PATERNITY AND FILIATION WITH THE USE OF DNA TESTING In DNA paternity testing, the result that excludes the putative parent from paternity is conclusive proof of non-paternity. If the value of the Probability of Paternity (“W”) is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity.389

388 389

Uy v. Chua, G.R. No. 183965, September 18, 2009, 600 SCRA 806. RULE ON DNA EVIDENCE, Sec. 9 (c). E-73

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E. VENUE The petition shall be filed in the family court, or in places where there is no family court, in the Regional Trial Court where the child resides. F. CONTENTS OF PETITION AND HEARING Aside from the jurisdictional facts, the petition shall contain the following: 1) the names and residences of the parents or one of them who acknowledge their compulsory heirs and the person or persons with whom the child lives; and 2) the document containing the recognition, a copy of which should be attached to the petition, which document is either a statement before a court of record or an authentic writing. The court shall grant the petition when it is satisfied that the recognition was willingly and voluntarily made and is so for the best interest of the child. G. GUIDELINES IN AFFIXING SIGNATURE OF ACKNOWLEDGING PARENT The Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1] where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2] where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.390 H. LEGITIMATION OF CHILDREN BORN OUT OF WEDLOCK TO MINOR PARENTS Children born out of wedlock to parents who were not allowed by law to marry for being minors are now qualified for automatic legitimation upon marriage of the parents, under Rep. Act No. No. 9858 that repealed Article 177 of the Family Code of the Philippines. Article 177 provides that only children born out of wedlock to parents who were not disqualified from getting married at the time of conception can be legitimized. Excluded from Article 177 are children whose parents were disqualified from getting married because they lacked the age requirement of 18 years old. Pursuant to Section 1 of the law, legitimation would automatically take place upon marriage of the parents.391 390

De la Cruz v. Gracia, G.R. No. 177728, July 31, 2009, 594 SCRA 648. Republic Act No. 9858, An Act Providing for the Legitimation of Children Born to Parents Below Marrying Age, Amending for the Purpose the Family Code of the Philippines, As Amended, Approved on December 20, 2009. 391

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XII.

CONSTITUTION OF FAMILY HOME A. NATURE OF FAMILY HOME The family home is a sacred symbol of family love and is the repository of cherished memories that last during one’s lifetime. It is the dwelling house where the husband and wife, or an unmarried head of a family reside, including the land on which it is situated.392

B. EXEMPTION FROM EXECUTION While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved, for instance, to the Sheriff before the sale of the property at public auction. Failure to do so would prevent the party from later claiming the exemption based on the principle of estoppel.393 Similarly, if a party fails to substantiate claim that the levied property is a family home, she cannot avoid liability under the contract of lease which she entered into.394

C. PETITION TO CONSTITUTE A FAMILY HOME NO LONGER REQUIRED UNDER THE FAMILY CODE Rule 106 on the Constitution of the Family Home is already extraneous in view of Article 153 of the Family Code stating that the family home is deemed constituted on a house and lot from the time it is occupied as a family residence, judicially or extra-judicially. And, all family homes constructed after the effective date of the Family Code (August 3, 1988) are constituted as such by operation of law. Hence, all existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code.395 Family home shall continue despite death of spouses or unmarried head of family.396 The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: first, that the heirs cannot extra-judicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing 392

Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172. Versola v. Court of Appeals, G.R. No. 164740, 31 July 2006, 497 SCRA 385. 394 Soneja v. Court of Appeals, G.R. No. 161533, June 5, 2009, 588 SCRA 450. 395 Kelley v. Planters Products, G.R. No. 172263, July 9, 2008, 577 SCRA 499. 396 Patricio v. Dario, et.al., G.R. No. 170829, November 20, 2006, 507 SCRA 438. 393

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therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefor. More importantly, said article imposes the proscription against the immediate partition of the family home regardless of its ownership. This signifies that even if the family home has passed by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home.397

397

Arriola v. Arriola, G.R. No. 177703, January 28, 2008, 542 SCRA 666. E-76

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XIII. DECLARATION OF ABSENCE AND DEATH A. DEFINITION Absence is a special status of a person who has left his domicile, and thereafter his whereabouts and fate are unknown, it being uncertain whether he is already dead or still alive.398 B. PROVISIONAL REPRESENTATIVE When a person disappears without leaving an agent behind, an interested party, relative or friend, may file a petition before the Regional Trial Court of the last place of residence of the person who disappeared to appoint provisionally a representative for him.399 C. TRUSTEE OR ADMINISTRATOR After two (2) years without any news or after five (5) years if an agent was left to administer the absentee’s his property, a petition for declaration of absence and appointment of a trustee or administrator may be filed.400

D. NOTICE AND PUBLICATION ARE REQUIRED. The court shall fix a date and place for the hearing where all concerned may appear to contest the petition. Copies of the notice of hearing shall be served on the known heirs, creditors and other interested persons and published once a week for three (3) consecutive weeks in a newspaper of general circulation. 401

E.

PREFERENCES

The court may appoint as trustees or administrator or provincial representative the following: 1) the spouse of the missing person if they are not separated or if the spouse is not a minor or otherwise incompetent; or, in default of the spouse; 2) any competent person.402

398

Philippine Law Dictionary, p. 6. RULES OF COURT, Rule 107, Sec. 1. 400 Id., Sec. 2. 401 Id., Sec. 4. 402 Id., Rule 106, Sec. 7. 399

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F. TERMINATION OF APPOINTMENT The appointment shall be terminated in the following instances: 1) if the absentee appears personally or by agent; 2) when the death is proved and the heirs appear; and, 3) when a third person acquires the property of the absentee.

G. WHEN PETITION IS NOT NECESSARY In a relevant case, a wife filed a petition to declare her missing husband absent and presumed dead. However, the husband left no property. The Supreme Court held that in this particular situation, there is no need for the petition.403 Moreover, a judicial declaration of absence of a spouse is not necessary as long as the prescribed period of absence is met. Hence, the Supreme Court held that since it remained undisputed that a person’s first husband had been absent or had disappeared for more than eleven (11) years before she entered into a second marriage in 1958, the second marriage, having been contracted during the regime of the Civil Code is deemed valid, notwithstanding the absence of a judicial declaration of presumptive death of the absentee spouse.404 However, a declaration of presumption of death is not final.405

403

Reyes v. Alejandro, No. L-32026, January 16, 1986, 141 SCRA 65. Armas v. Calisterio, G.R. No. 136467, April 6, 2000, 330 SCRA 201. 405 Jones v. Hortiguela, 64 Phil. 179 (1937). 404

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XIV.

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

A. WHO MAY FILE A PETITION The petitioner in cancellation or correction of entries in the civil registry may be any interested person concerning the civil status of persons.406 The Supreme Court, in one particular case, held that the change of name from “Jennifer” to “Jeff” implying a change of a feminine name to a masculine name may be filed by a petitioner woman that was eventually allowed, as the change in name merely recognizes preferred gender due to congenital adrenal hyperplasia (CAH).407

B. VENUE The petition may be filed with the Regional Trial Court where the corresponding civil registry is located.408

C. PARTIES The persons who are parties to a proceeding concerning the correction of an entry in the Civil Registrar are the following: 1) the Civil Registrar and 2) all persons who have or claim any interest which would be affected thereby.409 D.

ENTRIES SUBJECT TO CANCELLATION OR CORRECTION

The following entries in the civil register, upon good and valid grounds, may be cancelled or corrected: 1) births; 2) marriages; 3) deaths; 4) legal separations; 5) judgments of annulments of marriage; 6) judgments declaring marriages void from the beginning; 7) legitimations; 8) adoptions; 9) acknowledgments of natural children; 10) naturalization; 11) election, loss or recovery of citizenship; 12) civil interdiction; 406

RULES OF COURT, Rule 108, Sec. 1. Republic v. Cagandahan, G.R. 166672, September 12, 2008, 565 SCRA 72. 408 RULES OF COURT, Rule 108, Sec. 1. 409 Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 473. 407

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13) judicial determination of filiation; 14) voluntary emancipation of a minor; and, 15) changes of name.410 E.

NOTICE AND PUBLICATION

Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court, before the hearing, shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.411

F. NATURE OF PROCEEDING The remedy of correction of the civil status of a person in Rule 108 is not a summary but an adversary proceeding.412 Thus, all interested persons who may be affected by the petition shall be made parties.413 And, when petitions for change of name are filed before the regular courts, the procedural requirements provided by the Revised Rules of Court as to the form and substance of the petition and as to the necessity of publication, shall be complied with.

G.

PURPOSE OF AN ADVERSARIAL PROCEEDING

According to the Supreme Court, the reason why non-clerical mistakes cannot be corrected under the summary proceeding set by Article 412 of the new Civil Code "lies in the fact that the books making up the Civil Register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained, (Article 410, new Civil Code), and if the entries in the civil register could be corrected or changed through a mere summary proceeding, and not through an appropriate action, wherein all parties who may be affected by the entries are notified or represented we would set wide open the door to fraud or other mischief the consequences of which might be detrimental and far reaching.”414

410

RULES OF COURT, Rule 108, Sec. 2. Id., Sec. 4. 412 Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 462. 413 RULES OF COURT, Rule 108, Sec. 3. 414 In the Matter of Correction of the Surname of Cesar Young, et. al. v. Civil Registrar of Manila, G.R. No. 36478, April 29, 1983, 121 SCRA 873. 411

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XV.

APPEALS IN SPECIAL PROCEEDINGS

A. APPEAL An order or judgment which is appealable in special proceedings is an order or judgment which: 1. Allows or disallows a will: 2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; 3. Allows or disallows, in whole or in part any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; 4. Settles the account of an executor, administrator, trustee, or guardian; 5. Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of special administrator: and 6. Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it is an order granting or denying a motion for new trial of for reconsideration.

B.

PERIOD OF APPEAL In a proceeding for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required. The appeal period may only be interrupted by the filing of a motion for new trial or reconsideration. And, once the appeal period expires without an appeal being perfected, the decision or order becomes final.415 C.

WHO MAY APPEAL Any person with legal interest may appeal in special proceedings from any order or judgment rendered by the settlement court.416 A surety of the executor or administrator who is a party to an accounting maybe allowed to appeal an order approving or denying accounting,417 so with a creditor who is allowed by the court to bring an action for recovery of property.418

415

In the Matter of the Heirship of the Late Hermogenes Rodrigues, et. al., v. Robles, G.R. No. 182645, December 4, 2009. 416 RULES OF COURT, Rule 109, Sec. 1. 417 Espinosa v. Barrios, 70 Phil. 311 (1940). 418 Fluemer v. Hix, 54 Phil. 610 (1930). E-81

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D.

ORDERS THAT ARE APPEALABLE

The following orders are appealable: 1) an order appointing an administrator;419 2) ruling of a court determining the lawful heirs who may participate in the settlement proceedings420 and 3) orders on claims against the estate, inventories and sale of property of the decedent.421

E. ORDERS THAT MAY NOT BE APPEALED The following orders, however, may not be appealed: order appointing a special administrator;422 order for administrator to recover property of the estate;423 and an order to include or exclude property in the estate;424 F. PERIOD AND REQUIREMENTS FOR APPEAL In special proceedings, such as for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required.425 G. PERFECTION OF APPEAL 1. Rules 41,426 42,427 and Rule 45,428 all of the 1997 Rules of Civil Procedure apply in conformity with Rule 72, Section 2, which refers to the applicability of the rules of civil actions to special proceedings and which provides that in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. 2. Appeals in special proceedings are termed “multiple appeals” under the Interim Rules of Court and Under 1997 Rules of Civil Procedure. For multiple appeals, a record on appeal is required while the period of appeal is thirty (30) days, instead fifteen (15) days.

419

Sy Hong Eng v. Sy Lioc Suy, 8 Phil. 594 (1907). Testate Estate of Biascan v. Biascan, G.R. No. 138731, December 11, 2000, 347 SCRA 621. 421 Tinagan v. Rovira, G.R. No. 23555, January 29, 1968, 22 SCRA 209. 422 Samson v. Barrios, 63 Phil. 198 (1936). 423 Frankle v. Webber, 57 Phil. 768 (1932). 424 Gregorie v. Baker, 51 Phil. 76 (1926). 425 Pascual v. Robles, G.R. No. 182645, December 4, 2009, 607 SCRA 770. 426 Appeal from the Regional Trial Courts. 427 Petition for Review from the Regional Trial Courts to the Court of Appeals. 428 Appeal by certiorari to the Supreme Court. 420

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XVI. SPECIAL PROCEEDINGS UNDER THE DIFFERENT CIRCULARS OF THE SUPREME COURT A. RULE ON DECLARATION OF ABSOLUTE NULLITY MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

OF

VOID

1. Coverage. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages is A. M. NO. 02-11-10-SC, effective March 15, 2003, and governs petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under Articles 35, 36, 37 and 38 of the Family Code of the Philippines. The Rules of Court shall apply suppletorily.429 2. Void marriages under Article 35 of the Family Code. Under Article 35 of the Family Code, the following marriages are void from the beginning: a) those contracted by any party below eighteen (18) years of age even with the consent of parents or guardians; b) those solemnized by any person not legally authorized to perform marriages, unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; c) those solemnized without license, except those covered in the preceding Chapter; c) those bigamous or polygamous marriages not failing under Article 41 on absentee spouse; d) those contracted through mistake of one contracting party as to the identity of the other; and e) those subsequent marriages that is void under Article 53 for failure to register the judgment of nullity, partition and distribution of properties, and delivery of the children’s legitimes. 3. Jurisprudence a) Judicial declaration of void marriage is necessary to contract another marriage. In a case in point, the Supreme Court ruled that if a party contracts a void marriage that has not been declared as such by the court under Article 35 of the Family Code and one of the parties re-marries, said person is guilty of bigamy.430

429

Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, Sec. 1. 430 Manuel v. People, G.R. No.165842, 29 November 2005, 476 SCRA 461. E-83

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b) Mere private act of signing a marriage contract bears no semblance to a valid marriage and needs no judicial declaration of nullity. In a case in point, the Supreme Court found that since no marriage ceremony at all was performed by a duly authorized solemnizing officer, as the parties merely signed a marriage contract on their own, the mere private act of signing a marriage contract bears no semblance to a valid marriage and, thus, needs no judicial declaration of nullity. The Court further declared that such act alone cannot constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy, unless a judicial declaration of nullity is first secured before contracting a subsequent marriage.431 c) A married woman and a single man belonging to the Jehovah’s Witness who make “declaration of pledging faithfulness” are not administratively liable. The Supreme Court ruled that a married woman and a single man belonging to the Jehovah’s Witness who make “declaration of pledging faithfulness” are not administratively liable as the newly-entered conjugal arrangement is not penalized by law, it being an exercise of the freedom of religion.432 d) Void marriage still produces legal effects, among which, is bigamy. Conversely, bigamy is committed even if the second marriage is declared null and void by reason of the psychological incapacity of the second spouse. Although the marriage is void ab initio, it still produces legal effects, such as bigamy.433 4. Void marriage under Article 36 of the Family Code. “Psychological incapacity,” under Article 36 of the Family Code, is not defined or that no specific examples of psychological incapacity are laid down so as not to limit interpretation by the courts. Psychological incapacity, however, is confined to the most serious personality disorders such as dependent or anti-social personality with utter insensitivity and inability to give meaning to the marriage.434 a) Cases of non-existence of psychological incapacity. The Supreme Court held that there is no psychological incapacity in the following instances: wife’s refusal to come home from the United States and touch base with the husband;435 alcoholism, sexual infidelity and abandonment of the family by the spouse;436 failure to provide support to the family,

431

Morigo v. People, G.R. No. 145226, February 6, 2004, 422 SCRA 376. Escritor v. Estrada, A.M. No. P-02-1651, June 22, 2006, 492 SCRA 1. 433 Tenebro v. Court of Appeals, G.R. No.150758, February 18, 2004, 423 SCRA 272. 434 Santos v. Court of Appeals, G.R. No.112019, January 4, 1995, 240 SCRA 20. 435 Id. 436 Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999, 320 SCRA 76. 432

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physical abuse and abandonment of the family by the spouse;437 and a spouse who is emotionally immature, alcoholic, irresponsible and a fugitive from justice.438 Additionally, the Supreme Court made pronouncements on the nonexistence of psychological incapacity, to wit: petition for declaration of nullity of marriage based on irreconcilable differences and conflicting personalities of the spouses;439 flagrant promiscuity of a spouse with psychologist’s report that said spouse suffers from social personality disorder exhibited by blatant display of infidelity;440 and habitual alcoholism, infidelity, sexual perversion and abandonment by respondent spouse.441 The absence of cohabitation is not likewise a ground for declaration of nullity, otherwise, according to the Supreme Court, marriage will depend on the will of the parties.442 b) Instances where there is no psychological incapacity. However, being a pathological liar and living in a world of make believe constitute psychological incapacity.443 Unfitness as a lawyer, on the other hand, is not automatic unfitness as a husband or vice versa as well as infidelity and falsifying a spouse’s signature.444 Neither a husband who is alleged to be a “Mama’s boy” and who made it appear in his seafarer’s book that he is single so as to make the mother the beneficiary of his remittances can be declared psychologically incapacitated.445 c) Principle of “coming to court with clean hands” does not apply to Article 36. The principle of coming to court with clean hand does not apply to psychological incapacity cases for even the psychologically incapacitated spouse may file the petition and both parties may be declared psychologically incapacitated.446 d) Psychological incapacity is not a ground to recover moral damages. The psychological incapacity of a person is not a ground for recovery of moral damages as psychological incapacity is beyond the control of a person due to an innate inability to perform marital obligations.447

437

Marcos v. Marcos, G.R. No. 136490, October 19, 2000, 343 SCRA 755. Republic v. Dagdag, G.R. No.109975, February 9, 2001, 351 SCRA 425. 439 Choa v. Choa, G.R. No.143376, November 26, 2002, 392 SCRA 641. 440 Dedel v. Court of Appeals, G.R. No. 151867, January 29, 2004, 421 SCRA 397. 441 Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006, 495 SCRA 396. 442 Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006, 505 SCRA 564. 443 Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353. 444 Paras v. Paras, G.R. No. 147824, August 2, 2007, 529 SCRA 81. 445 Republic v, Baguio, G.R. No. 171042, June 30, 2008, 556 SCRA 711. 446 Chi Ming Choi v. Court of Appeals, G.R. No. 119190, January 16, 1997, 266 SCRA 324. 447 Buenaventura v. Court of Appeals, G.R. No. 127358, March 31, 2005, 454 SCRA 261. 438

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e)

Who may file and when a petition for annulment of voidable marriage. Under Section 3 of the Rule, the following may file a petition for annulment of voidable marriage on any of the grounds under Article 45 of the Family Code within the prescribed period:    





the contracting party who did not obtain consent of parents and at any time before such party has reached the age of twenty-one (21); the sane spouse at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity; the injured party whose consent was obtained by fraud and within five (5) years after the discovery of the fraud; the injured party whose consent was obtained by force, intimidation, or undue influence, within five (5) years from the time the force, intimidation, or undue influence disappeared or ceased; the injured party where the other spouse is physically incapable of consummating the marriage and within five (5) years after the celebration of marriage; and, the injured party where the other party was afflicted with a sexuallytransmissible disease and within five (5) years after the celebration of marriage.448

5. Prohibited compromises and matters not subject of mediation. Compromise is not allowed on the following: a) civil status of persons; b) validity of a marriage or of a legal separation; c) ground for legal separation; d) future support; e) jurisdiction of courts; and f) future legitime.449

6. Trial. Section 17 states the presiding judge shall personally conduct trial and no delegation of the reception of evidence to a commissioner is allowed, except as to matters involving property relations. The grounds for declaration of absolute nullity or annulment of marriage must be proved and no judgment on the pleadings, summary judgment, or confession of judgment is allowed. 7. Confidentiality and Privacy of Proceedings. The court may exclude from the courtroom all persons, including members of the press, who do not have a direct interest in the case. The order may be made if the court determines that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a 448

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES, Sec. 3. 449 Id., Sec. 16; RULE ON COURT-ANNEXED FAMILY MEDIATION, A.M. No. 10-4-16-SC, June 22, 2010, Rule 1, Sec. 1. E-86

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party to privacy; or would be offensive to decency or public morals. No copy may be taken nor any examination or perusal of the records of the case or parts thereof may be made by any person other than a party or counsel of a party, except by order of the court.450

8. Judgment. According to Section 19 of the Rule, if the court renders a decision granting the petition, it shall declare that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. 9. When decision becomes final. The decision becomes final upon the expiration of fifteen (15) days from notice to the parties. Entry of judgment is made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. Upon the finality of the decision, the court issues the corresponding decree if the parties have no properties. If the parties have properties, the court adopts the procedure prescribed in Section 21 of the Rule. The entry of judgment is registered in with the Civil Registry where the marriage was recorded and in the Civil Registry where the family court granting the petition for declaration of absolute nullity or annulment of marriage is located.451 10. Liquidation, partition, distribution, custody, support of common children and delivery of presumptive legitime. After entry of the judgment, or, in case of appeal, after receipt of the entry of judgment of the appellate court granting the petition, the family court, on motion of either party, proceeds with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes, pursuant to Articles 50 and 51 of the Family Code, unless such matters had been adjudicated in previous judicial proceeding.452

450

RULE ON DECLARATION MARRIAGES, Sec. 17. 451 Id., Sec. 19. 452 Id., Sec. 21.

OF

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OF

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AND

ANNULMENT

OF

VOIDABLE

SPECIAL PROCEEDINGS

11. Property regime that governs after the marriage is declared null and void. The property regime of a marriage declared null and void under Article 36 of the Family Code is governed by co-ownership.453 12. Decree. Section 22 of the Rule states that the court shall issue the decree after: (1) registration of the entry of judgment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the family court is located; (2) registration of the approved partition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located; and (3) delivery of the children's presumptive legitimes in cash, property, or sound securities.

13. Contents of the dispositive portion of the decision. The court states in the decree the dispositive portion of the judgment entered and attach to the decree the approved deed of partition. Except in the case of children covered under Articles 36 and 53 of the Family Code, the court orders the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.454

14. Registration and publication of the decree and decree as best evidence. The prevailing party causes the registration of the decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the family court is situated, and in the National Census and Statistics Office and reports to the court compliance with this requirement within thirty days from receipt of the copy of the decree. If service of summons was by publication, the parties shall cause the publication of the decree once in a newspaper of general circulation. The registered decree is the best evidence to prove the declaration of absolute nullity or annulment of marriage and serves as notice to third persons concerning the properties of petitioner and respondent, as well as the properties or presumptive legitimes delivered to their common children.455 15. Effect of death of a party and duty of family or appellate court. In case a party dies at any stage of the proceedings before the entry of judgment, the court issues an order for the case to be declared closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. If the party dies after the entry of judgment of nullity or annulment,

453

Valdez v. Regional Trial Court of Quezon City, Branch 102 and Valdez, G.R. No. 112749, July 31, 1996, 260 SCRA 221. 454 RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES, Sec. 22. 455 Id., Sec. 23. E-88

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the judgment is binding on the parties and their successors in interest in the settlement of the estate in the regular courts.456

B.

RULE ON LEGAL SEPARATION 1. Coverage. The Rule on Legal Separation is A.M. No. 02-11-11-SC, effective on March 15, 2003, and it governs petitions for legal separation under Article 55 of the Family Code, and the Rules of Court applies suppletorily. 2. Who may file and when. A petition for legal separation may be filed only by the husband or the wife within five (5) years from the time of the occurrence of any of the following causes:   

      

repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; physical violence or moral pressure to compel the petitioner to change religious or political affiliation; attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned; drug addiction or habitual alcoholism of the respondent; lesbianism or homosexuality of the respondent; contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines; sexual infidelity or perversion of the respondent; attempt on the life of petitioner by the respondent; and, abandonment of petitioner by respondent without justifiable cause for more than one (1) year.457

3. Jurisprudence. Physical violence and grossly abusive conduct of respondent against petitioner and respondent’s abandonment of petitioner without justifiable cause for more than one (1) year are grounds for legal separation only, not for declaration of nullity of marriage under Article 36 of the Family Code on psychological incapacity.458

456

Id., Sec. 24. RULE ON LEGAL SEPARATION, Sec. 2. 458 Najera v. Najera, G.R. No. 164817, July 3, 2009, 591 SCRA 541. 457

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4. Pre-trial conference. At the pre-trial conference of a legal separation petition, the court may refer the issues to a mediator who assists the parties in reaching an agreement on matters not prohibited by law. The mediator renders a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one (1) month. In case mediation is not availed of or where it fails, the court proceeds with the pre-trial conference, on which occasion it considers the advisability of receiving expert testimony and such other matters that aids in the prompt disposition of the petition.459

5. Prohibited compromises. The following cannot be the subject of amicable settlement: 1) civil status of persons; 2) validity of a marriage or of a legal separation; 3) ground for legal separation; 4) future support; 5) jurisdiction of courts; and, 6) future legitime. Further, the presiding judge must personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner is allowed except as to matters involving property relations of the spouses. The grounds for legal separation must be proved and no judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.460

6. Decree of legal separation. A Decree of Legal Separation is issued after: 1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the family court is located; and 2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. The court quotes in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.461

7. Effects of the decree of legal separation. The effects of the decree of legal separation are as follows:462 1) the spouse shall be entitled to live separately from each other but the marriage bond shall not be severed; 2) the absolute community or conjugal partnership is dissolved and liquidated but the offending spouse shall have the right to any share of the net profits463 earned by the absolute community or conjugal partnership which is forfeited in favor of the common children; and, 3) custody of the minor children is awarded to the innocent spouse.

459

RULE ON LEGAL SEPARATION, Sec. 11. Id., Sec.13. 461 Id., Sec. 19. 462 FAMILY CODE, Art. 43. 463 Siochi v. Gozon, G.R. No. 169900, March 18, 2010. 460

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8. Registration, publication of decree and best evidence. The prevailing party registers the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the family court is situated, and in the National Census and Statistics Office. A report is submitted to the court for compliance with the requirement within thirty (30) days from receipt of the copy of the Decree. In case service of summons was made by publication, the parties publish the Decree once in a newspaper of general circulation. The registered Decree is the best evidence to prove the legal separation of the parties and serves as notice to third persons concerning the properties of petitioner and respondent.464

9. Effect of death of party and duty of family, appellate court. If a party dies at any stage of the proceedings before the entry of judgment, the case is ordered closed and terminated, without prejudice to the settlement of estate proceedings in the regular courts. If the party dies after the entry of judgment, the same is binding on the parties and their successors in interest in the settlement of the estate in the regular courts.465

10. Petition for revocation of donations. Under Section 22 of the Rule, within five (5) years from the time the decision becomes final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse. The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the places where the properties are located. Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property are respected. After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation is stipulated as irrevocable. The revocation or change takes effect upon written notification thereof to the insurer.466

11. Reconciliation of parties. If the spouses reconcile, a joint manifestation under oath, duly signed by them may be filed in the same proceeding for legal separation under Section 23 of the Rule.

464

RULE ON LEGAL SEPARATION, Sec. 20. Id., Sec. 21. 466 Id., Sec. 22. 465

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12. Reconciliation before issuance of decree. If the reconciliation occurred while the proceeding for legal separation is pending, the court immediately issues an order terminating the proceeding. If the reconciliation occurred after the rendition of the judgment but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or choose a new regime. Then, the court issues a Decree of Reconciliation setting aside the legal separation proceeding and specifying the regime of property relations under which the spouses are covered.

13. Reconciliation after issuance of decree. If the spouses reconciled after the issuance of the Decree, the court, on proper motion, issues a decree of reconciliation stating that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime.

14. Adoption of another regime upon reconciliation. If the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition, they shall comply with Section 24 of the Rule. The decree of reconciliation is recorded in the Civil Registries where the marriage and the Decree had been registered.467 15. File a verified motion for revival of regime of property relations or the adoption of another regime in case of reconciliation. Similarly, under Section 23 of the Rule, when parties reconcile, they shall file a verified motion for revival of regime of property relations or the adoption of another regime of property relations in the same proceeding for legal separation, attaching to the motion their agreement for the approval of the court. The agreement which must be verified specifies the following: 1) properties to be contributed to the restored or new regime; 2) those to be retained as separate properties of each spouse; and, 3) names of all their known creditors, their addresses, and the amounts owing to each. 16. Notice to creditors if verified motion for revival of regime of property relations or the adoption of another regime in case of reconciliation is filed. The creditors are furnished with copies of the motion and the agreement and then the court requires the spouses to cause the publication of their verified motion for two (2) consecutive weeks in a newspaper of general circulation. After due hearing, and the court decides to grant the motion, an order is issued directing the parties to record the order in the proper registries of property within 467

Id., Sec. 23. E-92

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thirty (30) days from receipt of a copy of the order and submit proof of compliance within the same period.

C. RULE ON PROVISIONAL ORDERS The Rule on Provisional Orders is A.M. No. 02-11-12-SC, which took effect on March 15, 2003. 1. Provisional orders. After receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application of any of the parties, guardian or designated custodian, may issue provisional orders in the form of support, custody and visitation, and administration of property. The court may also issue protection and holddeparture orders.468 2. Support. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, and education, which includes schooling and training for some profession or trade beyond the age of majority and transportation, in keeping with the financial capacity of the family.469 The amount of support which those related by marriage and family relationship is generally obliged to give each other shall be in proportion to the resources or means of the giver and the needs of the recipient.470 a) Spousal and child support Spousal support471 In the absence of agreement, the spouses may be supported from the properties of the absolute community or the conjugal partnership and in an amount and for such period of time as the court may deem just and reasonable based on standard of living during the marriage. Other factors to consider are the following: 1) if spouse seeking support is the custodian of a child; 2) the time necessary to acquire sufficient education and training; 3) duration of the marriage; 468

Child support472 Common children are supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It is in proportion to the resources or means of the giver and to the necessities of the recipient. However, the entitlement to support of a child is dependent on the determination of filiation.474

RULE ON PROVISIONAL ORDERS, Sec. 1, March 15, 2003. FAMILY CODE, Art. 194. 470 Lacson v. Lacson, G.R. No. 150644, August 28, 2006, 499 SCRA 677. 471 RULE ON PROVISIONAL ORDERS, Sec. 2. 472 Id., Sec. 3. 469

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4) comparative financial resources; 5) needs and obligations of each spouse; 6) contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; 7) age and health of the spouses; 8) physical and emotional conditions of the spouses; 9) ability of the supporting spouse to give support; and, 10) other factors the court may deem just and equitable.

To determine the amount of provisional support, the court may consider the following factors: 1) financial resources of the custodial and non-custodial parent and those of the child; 2) physical and emotional health of the child and his or her special needs and aptitudes; 3) standard of living the child has been accustomed to; and 4) non-monetary contributions that the parents will make toward the care and well-being of the child.

The family court may direct the In the same way as spousal deduction of the provisional support from support, the family court may direct the the salary of the spouse.473 deduction of the provisional support from the salary of the parent.475

b) Other persons obliged to support each other In addition to spouses, parents and children, other persons obliged to support each other are the legitimate ascendants and descendants and legitimate brothers and sisters, whether of full or half blood.476 The inability of parents to sufficiently provide for their children shifts a purpose of their obligation to the ascendants in the nearest degree, both in the paternal and maternal lines.477 3. Child Custody. In custody cases, the court considers the best interest and material and moral welfare of the child. The court likewise considers the following factors: a) agreement of the parties; b) desire and ability of each parent to foster an open and loving relationship between the child and the other parent; c) the child’s health, safety, and welfare; d) history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; e) nature and frequency of contact with both parents; f) habitual use of alcohol or regulated substances; g) marital misconduct; h) the most suitable physical, emotional, spiritual, psychological and educational environment; and, i) preference of the child if over seven [7] years of age and of sufficient discernment, unless the parent chosen is unfit. 473

RULE ON PROVISIONAL ORDERS, Sec. 2. Nepomuceno v. Lopez, G.R. No. 181258, March 18, 2010. 475 Id., Sec. 3. 476 FAMILY CODE, Art. 195. 477 Lim v. Lim, G.R. No. 163209, October 30, 2009, 604 SCRA 691. 474

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a)

Order of preference in custody According to Section 4 of the Rule, the court may award provisional custody in the following order of preference: 1) both parents jointly; 2) either parent taking into account all relevant considerations especially the choice of the child over seven [7] years of age, unless the parent chosen is unfit; 3) the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; 4) eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; 5) child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or, 6) any other person deemed by the court suitable to provide proper care and guidance for the child. b) Notice when planning to change residence of child The custodian designated by the court shall give five days notice of any plan to change the residence of the child or take the child out of residence for more than 3 days, provided it does not prejudice the visitation rights of the parents.478 c)

Visitation rights Visitation rights are provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.479 d)

Hold departure order Pending resolution of the petition, Section 6 of the Rule directs that no child of the parties may be brought out of the country without prior order from the court. The court, motu proprio or on application may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The family court that issues the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four (24) hours from issuance and through the fastest available means of transmittal. e) Contents of petition for hold departure order The hold-departure order contains the following information: 1) complete name and middle name, date and place of birth, and the place of last residence of the person against whom a hold-departure order is issued or whose departure from the country is enjoined; 2) complete title and docket number of the case in which the hold departure was issued; 3) specific nature of the case; and 4) date of the hold-departure order. If available, a recent photograph of the person against whom a hold-departure order has been 478 479

RULE ON PROVISIONAL ORDERS, Sec. 4. Id., Sec. 5. E-95

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issued or whose departure from the country has been enjoined shall be included. However, the court may recall the order, motu proprio or upon verified motion of any of the parties, after summary hearing based on the best interests of the child.480 f) Order of protection The court may issue an Order of Protection requiring any person: 1) to stay away from the home, school, business, or place of employment of the child, parent or other party, and any other specific place designated by the court; 2) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; 3) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; 4) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child 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; and 6) to comply with such other orders as are necessary for the protection of the child.481 g) Administration of common property Section 8 of the Rule provides that if a spouse without just cause, abandons the other or fails to comply with his or her obligations to the family, the court may, on application of the aggrieved party, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property. The receiver or administrator may not dispose of or encumber any common property of either spouse without prior authority of the court. The provisional order shall be registered in the Register of Deeds and annotated in all titles of properties subject of the receivership or administration. D. PETITION FOR CUSTODY OF MINORS 1. Definition. A petition for custody of a minor child is a proceeding to determine the right party or person to whom the custody of a child of the parties may be awarded. The court shall consider the best interest of the child and shall give paramount consideration to the material and moral welfare of the child.482 A custody case is subject to mediation.483 a) Maternal preference rule in custody of children below seven (7) years of age. Under Article 213, second paragraph of the Family Code, no child under seven (7) years of age shall be separated from the mother, unless the 480

Id., Sec. 6. Id., Sec. 7. 482 Id., Sec. 4; A.M. No. 02-11-12-SC, March 15, 2003. 483 A.M. 10-4-16-SC, Sec. 1, June 22, 2010. 481

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court finds compelling reasons to order otherwise. This is called the “maternal preference” rule or the “tender-age” presumption.484 It contemplates a situation in which the parents of the minor child are married to each other, but are separated by virtue of either a decree of legal separation or a de facto separation.485 b) Mother has custody of child below seven (7) years of age in case of separation of spouses. Upon separation of the spouses, the mother takes sole custody if the child is below seven (7) years old and any agreement to the contrary is void. The Supreme Court stated that for a child within this age bracket, the law decides for the separated parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven (7) years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under Article 213.486 c) Maternal preference rule is mandatory. The provision on maternal preference is mandatory in character and finds its raison d’etre in the basic need of a child for a mother’s love and care. And, only the most compelling of reasons shall justify the court’s awarding of custody of a child to someone other than the mother, such as unfitness to exercise sole parental authority, neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and being sick with a communicable disease.487

2. Award of custody is based on the best interest of the child a) Meaning of “best interest” of child. In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.488 484

Gamboa-Hirsch v. Court of Appeals, et.al., G.R. No. 174485, July 11, 2007, 527 SCRA 380. Gualberto v. Court of Appeals, et.al., G.R. No. 156254, June 28, 2005, 461 SCRA 450. 486 Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010, 611 SCRA 657. 487 Perez v. Court of Appeals, G.R. No.118870, March 29, 1996, 255 SCRA 661. 488 RULE ON CUSTODY OF MINORS AND HABEAS CORPUS IN RELATION TO CUSTODY OF MINOR CHILDREN, Sec. 14. 485

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b) Best interest is paramount consideration in custody cases. After hearing, the court shall award the care, custody and control as will be for the best interest of the child. The principle of “best interest of the child,” according to the Supreme Court, pervades Philippine cases involving adoption, guardianship, support, personal status, children in conflict with the law, and child custody. The welfare of the minor child should always be the paramount consideration and courts are mandated to take into account all relevant circumstances that would have a bearing on the child’s well-being and development.489 c) Equity may be invoked to serve the best interest of the child. In fact, the Supreme Court made pronouncement in one case that in a child custody proceedings filed with the Regional Trial Court of Makati City, equity maybe invoked to serve the best interest of the child by letting the parties take advantage of the jurisdiction of the court rather than ordering the dismissal of the petition on the ground that the Circuit Court, 19th Judicial Circuit, Lake County, Illinois, USA, which granted the decree of divorce retained jurisdiction over the case for enforcement purposes.490 d) Best interest of the child is provided for under the United Nations Convention on the Rights of the Child. The United Nations Convention on the Rights of the Child (UNCRC) provides that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”491 Consequently, aside from the material resources and the moral and social situation of each parent, other factors may also be considered to ascertain which one has the potential to attend to the physical, educational, social and moral welfare of the children.492

3. Factors to consider in custody. Among the factors that may be considered by the court in the award of custody are the following : 1) agreement of the parties; 2) desire and ability of each parent to foster an open and loving relationship between the child and the other parent; 3) child’s health, safety, and welfare; 4) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; 5) nature and frequency of contact with both parents; 6) habitual use of alcohol or regulated substances; 7) marital misconduct; and 8) the most suitable physical, emotional, spiritual, psychological, and educational environment.493

489

Supra note 485. Supra note 486. 491 Supra note 485. 492 Id. 493 RULE ON PROVISIONAL ORDERS, Sec. 4. 490

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4. Choice of the child above seven (7) years of age. The child, who is over seven (7) years of age with sufficient discernment,494 may choose the parent preferred to live with, unless the parent so chosen is unfit to take charge of the child by reasons, among others, of moral depravity, habitual drunkenness, incapacity, or poverty. The Court may, however, exercise its discretion by disregarding the child’s preference if the chosen one be unfit, in which instance, custody may be given to the other parent or even to a third person.495 5. Other persons designated child custodian and order or preference. If both parents are unfit, the court may designate other persons or an institution to take charge of the child in the following order of preference: 1) paternal or maternal grandparent of the child; 2) oldest brother or sister above twenty-one [21] years of age; 3) actual custodian; or 4) or some other qualified, reputable and discreet person as determined by the court.496 6. Visitation rights. The court may permit the parent who is not awarded custody to visit the child, unless found unfit or disqualified by the court.497 The visitation right referred to is the right of access of a noncustodial parent to his or her child or children. Parents have the natural right, as well as the moral and legal duty, to care for their children and see to their upbringing and safeguard their best interest and welfare. Neither will the law nor the courts allow this affinity to bear, absent any real, grave and imminent threat to the well-being of the child. The father, therefore is granted visitation rights as his constitutionally protected natural and primary right.498

7. Award of custody does not deprive the husband of parental authority and visitation right applied to illegitimate relationships. The award of custody to the wife does not deprive the husband of parental authority. In addition, there is nothing conclusive to indicate that such provision is meant to solely address to legitimate relationships but explicitly encompass illegitimate relationships as well.499

494

Id., Sec. 13(b). Tonog v. Court of Appeals, G.R. No. 122906, February 7, 2002, 376 SCRA 523. 496 FAMILY CODE, Art. 216. 497 RULE ON PROVISIONAL ORDERS, Sec. 5. 498 Bongdagjy v. Bongdagjy, G.R. No.140817, December 7, 2001, 371 SCRA 462. 499 Silva v. Court of Appeals, G.R. No. 114742, July 17, 1997, 275 SCRA 604. 495

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E.

SUMMARY PROCEEDINGS UNDER THE FAMILY CODE 1. Coverage. Summary procedure governs the cases enumerated in Articles 239,248,223,225,235,41,51,69,73,96,124,and 217 of the Family Code, to wit: 1] judicial authorization for a transaction where the consent of an estranged spouse is needed; 2] petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits of proceeds; 3] petitions filed under Articles 223, 225, and 236 of the Family Code involving parental authority; and, 4] summary proceedings filed under Articles 41, 51, 69, 96, 124, and 127, insofar as they are applicable.500

2. Rationale for the summary nature of the procedure. The summary remedy is principally to address the problem of separated spouses wherein one of them usually has difficulty obtaining the consent of the other spouse for a transaction where such consent is required. The summary remedy, however, also applies to other cases provided for in the Family Code where court approval is needed.

3. Nature of the summary procedure. The nature of the summary procedure set forth in the Family Code as regards separation of fact between husband and wife, abandonment of one by the other, and incidents involving parental authority, for instance, is as follows: 1) a verified petition is filed setting forth the alleged facts and attaching the proposed deed of the transaction involved;501 2) notice shall be given to all interested persons accompanied by a copy of the petition;502 3) a preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel and after the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conference and hearings;503 4) if attendance of non-consenting spouse is not secured, then the court may proceed ex parte and render judgment as the facts and circumstances warrant, but the court shall endeavor to protect the interests of the non-appearing party; 5) the case shall be heard on the basis of affidavit, documentary evidence or oral testimonies at the sound discretion of the court and if testimony is needed, the court shall specify the witnesses to be heard and the subject matter of their testimonies, directing the parties to present said witnesses.504

500

FAMILY CODE, Arts. 238 to 253. Id., Art. 239. 502 Id., Art. 242. 503 Id., Art. 243. 504 Id., Art. 246. 501

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4. Judgment. The judgment of the court is immediately executory. Accordingly, the Supreme Court ruled in one case that there is no reglementary period within which to perfect an appeal because judgments rendered therein, by express provision of Section 247, Family Code, are "immediately final and executory". It was erroneous, therefore, on the part of the lower court to give due course to the Republic’s appeal in this case and order the transmittal of the entire records of the case to the Court of Appeals.505 Moreover, the petition to have the absent spouse declared presumptively dead that had for its purpose the desire to contract a valid subsequent marriage is a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court and appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed.506

505 506

Republic of the Philippines v. Bermudez-Lorino, G.R. No. 160258, January 19, 2005, 449 SCRA 57. Republic of the Philippines v. Court of Appeals, G.R. No. 163604, May 6, 2005, 458 SCRA 200. E-101

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XVII. PROCEEDINGS UNDER REP. ACT NO. 9262, RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN507 A.

Coverage

This Rule applies to petitions for protection orders in cases of violence against women and their children (VAWC) under R.A. No. 9262, or the "Anti-Violence Against Women and Their Children Act of 2004." The Rules of Court apply suppletorily and is construed to promote its objectives pursuant to the principles of restorative justice.508 B.

Definition of violence against women and their children

"Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or a woman with whom the person has or had a dating or sexual relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.509

C.

Rule on preference in the application for protection order

The filing of a petition for protection order by the offended party suspends the right of all other authorized parties to file similar petitions. A petition filed by the offended party after the filing of a similar petition by an authorized party shall not be dismissed but consolidated with the petition that is filed earlier.510

D.

No mutual, multiple protection order

No mutual protection order maybe issued to both petitioner and respondent, observing the above order of priority and exclusion rule and in order not to confuse the authority implementing the protection order. The court first taking cognizance of the case retains jurisdiction over it and no other court may issue another protection order.511

507

Administrative Matter No. 04-10-11, effective November 15, 2004. Id., Secs. 1 and 2. 509 Id., Sec. 4. 510 Id., Sec. 8. 511 Pena v. Recto, G.R. No.176403, June 20, 2007 (Minute Resolution). 508

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E.

Exemption from docket fees, other expenses

If the offended party is an indigent or there is an immediate necessity due to imminent danger or threat of danger to act on a petition for a protection order, the court shall accept the petition without payment of the filing fee and other fees and of transcripts of stenographic notes.512 The petition filed in a multi-station court shall be raffled without delay. If an action contains an application for a protection order, it shall be the subject of a special raffle.513 F.

Ex-parte issuance of temporary protection order (TPO)

If the court is satisfied from the verified allegations of the petition that there is reasonable ground to believe that an imminent danger of violence against women and their children exists or is about to recur, the court may issue ex parte a temporary protection order which shall be effective for thirty days from service on the party or person sought to be enjoined. The temporary protection order shall include notice of the date of the preliminary conference and hearing on the merits. The following statements must be printed in bold-faced type or in capital letters on the protection order issued by the court: "VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW. "IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS ON THE ISSUANCE OF .A PERMANENT PROTECTION ORDER, THE COURT SHALL NOT RESCHEDULE OR POSTPONE THE PRELIMINARY CONFERENCE AND HEARING BUT SHALL APPOINT A LAWYER FOR THE RESPONDENT AND IMMEDIATELY PROCEED WITH SAID HEARING. "IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS DESPITE PROPER NOTICE, THE COURT SHALL ALLOW EX PARTE PRESENTATION OF EVIDENCE BY THE PETITIONER AND RENDER JUDGMENT ON THE BASIS OF THE PLEADINGS AND EVIDENCE ON RECORD. NO DELEGATION OF THE RECEPTION OF EVIDENCE

512 513

Administrative Matter No. 04-10-11, Sec. 13. Id., Sec. 14. E-103

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G.

History of abusive character

The court may allow the introduction of any evidence of history of abusive conduct of a respondent even if the same was not directed against the victim, provided the same is relevant. The court may order the exclusion from the courtroom of all persons who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court: 1) would not enhance the ascertainment of truth; 2) would cause the party psychological harm; 3) would violate the right of a party to privacy; or 4) would be offensive to decency or public morals.514

H.

Prohibited acts

The court hearing a petition for a protection order shall not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the petition for protection under the law and this Rule. Failure to comply with this section shall render the judge administratively liable.515 I.

Period to decide

The court shall decide the petition within thirty (30) days after termination of the hearing on the merits. Where no hearing has been conducted, the court shall decide the petition within ten days after the termination of the preliminary conference.516 J. Judgment If the court finds the petition meritorious, it shall render judgment granting the offended party permanent protection against acts of violence and such other necessary reliefs provided in Section 11 of this Rule. The court shall not deny the issuance of a permanent protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, Rep. Act No. 9262. The judgment shall be immediately executory.517

514

Id., Sec. 26. Id., Sec. 27. 516 Id., Sec. 29. 517 Id., Sec. 30. 515

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K. Prosecution of civil action for damages The civil action for damages shall be governed by the 1997 Rules of Civil Procedure. However, the offended party cannot recover the same damages twice for the same act or omission.518 L. Prosecution of criminal action Section 36 of the Rule states that an act of violence covered by R.A. No. 9262 constituting a criminal offense shall subject the offender to criminal proceedings, which shall be governed by the Revised Rules of Criminal Procedure. Where the judgment of conviction declares that the guilt of the accused has been proved beyond reasonable doubt, the permanent protection order shall issue as a matter of course. M. Conspiracy applied In a relevant case, the Supreme Court stated that the principle of conspiracy under Article 8 of the Revised Penal Code may be applied suppletorily to Rep. Act No. 9262, in view of the express provision of Section 47 that the Revised Penal Code shall be supplementary to said law. Thus, general provisions of the Revised Penal Code, which by their nature, are necessarily applicable, may be applied suppletorily.519 N.

Defense of battered woman syndrome (BWS)

To avail of the defense of battered woman syndrome (BWS), the following elements must concur: (1) couple is in battering cycle at least two times (2) final acute battering produced in mind of battered person actual fear of imminent harm, and (3) at the time of the killing batterer posed probable grave harm.520 O. Bond to keep peace The court may also order any person, against whom a permanent protection order is issued, to give a bond to keep the peace. It shall be the duty of said person to present two sufficient sureties who shall undertake that such person will not 518

Id., Sec. 35. Go-Tan v. Spouses Perfecto and Juanita Tan, G.R. No. 168852, September 30, 2008, 567 SCRA 231. 520 People v. Genosa, G.R. No. 148220, June 15, 2005, 460 SCRA 85. 519

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commit the violence sought to be prevented, and that, in case such violence is committed they will pay the amount determined by the court in its judgment. The court in its discretion shall fix the duration of the bond.521 P. Reproduction of evidence An order granting the issuance of a permanent protection order is without prejudice to a trial on the merits of the criminal or civil action involving violence against women and their children. The evidence adduced during the hearing for the issuance of a permanent protection order may, upon motion, be reproduced in the criminal or civil action without prejudice to the cross-examination of witnesses and presentation of additional evidence.522 Q. Privacy and confidentiality of proceedings All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy. Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos.523 R. System of coding The system of coding is adopted to ensure confidentiality in violence against women and their children cases. In a case in point, the Supreme Court resolved to withhold the name and the personal circumstances of the victim-survivors or any other information tending to establish or compromise their identities and those of their immediate family or household members. The basis for the Court ruling are the provisions of Rep. Act No. 7610, the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and its implementing rules; Rep. Act No. 9262, or the Anti-Violence Against Women and Their Children Act of 2004, and its implementing rules; and the Court’s own Rule on Violence Against Women and their Children. Additionally, on February 14, 2006, the Supreme Court issued a directive to refrain from posting in the Court website the full text of the decisions in cases of child sexual abuse. 524 521

Administrative Matter No. 04-10-11, Sec. 37. Id., Sec. 38. 523 Id., Sec. 40. 524 People of the Philippines v. Melchor Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419. 522

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XVIII. PROCEEDINGS UNDER OTHER SUPREME COURT CIRCULARS A.

RULE ON THE WRIT OF AMPARO 1. Definition. A writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. It applies to cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.525 2. Definition of extralegal killings and enforced disappearance of persons a) Extralegal killings. Extralegal killings are killings committed without due process of law, i.e, without legal safeguards or judicial proceedings. As such, these will include the illegal taking of life regardless of the motive, summary and arbitrary executions, “salvagings” even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like. 526 b) Enforced or involuntary disappearance. Enforced or involuntary disappearance of persons means the arrest, detention and abduction of persons by, or with the authorization, support or acquiescence of a State or political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time.527 3. Contents of the petition. The petition must be verified, signed, and shall allege the following:   



personal circumstances of the petitioner; name and personal circumstances of the respondent or, if the name is unknown or uncertain may be described by an assumed appellation; right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such is committed detailed in supporting affidavits; investigation conducted, if any;

525

Rule on the Writ of Amparo, Sections 23 and 26. As the term is used in United Nations Instruments, Annotation to the Rule on the Writ of Amparo. 527 Republic Act No. 9851, Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, Section 3. 526

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



actions and recourses taken by petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and, the relief prayed for. The petition may include a general prayer for other just and equitable relief.528

4. Conspiracy. A mere allegation of conspiracy and manhandling in the arrest will not entitle petitioner to the writ of amparo. In a relevant case, the Supreme Court held that respondents’ bare allegations that petitioners “in unison, conspiracy and in contempt of court, there and then willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly, physically manhandled the petitioners (respondents) and arrested the herein petitioners (respondents)” will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after their arrest.

5. When the writ does not apply; jurisprudence a) After release from confinement, allegation of undue and continuing restraint will not entitle petitioner to the writ of amparo. In one case, the Supreme Court ruled that although respondents’ release from confinement does not necessarily hinder supplication for the writ of amparo, absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified.529 b) Threatened demolition by virtue of final judgment of the court is not a ground for writ of amparo. Additionally, the threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. When recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute.530

528

RULE ON THE W RIT OF AMPARO, Sec. 5. Castillo v. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628. 530 Canlas v. NAPICO Homeowners, G.R. No. 182795, June 5, 2008, 554 SCRA 208. 529

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c) Restriction on the right to travel as a consequence of the criminal case filed is not unlawful to merit the granting of the writ of amparo. In another case,531 the Supreme Court En Banc affirmed the decision of the Court of Appeals denying the petition for writ of amparo of Father Reyes stating that he failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy. d) Amparo cannot be filed against an incumbent President. In the case of Razo, Jr., vs. Tagitis,532 the Supreme Court held that there can be no issuance of a writ of amparo against President Gloria Macapagal Arroyo since an incumbent president enjoys the privilege of immunity from suit. 6. Who may file petition a) Order of preference Section 2 of the Rule provides that the petition may be filed by the aggrieved party or by any qualified person or entity in the following order: 1) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. b) Suspension of right of persons authorized to file when the aggrieved party filed the petition. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions and the filing by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established by the Rule.

7. Where to file petition. Venue for the filing of a writ of amparo is governed by Section 3 of the Rule. The petition may be filed with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts and is enforceable anywhere in the Philippines. When issued by a Regional Trial Court or a judge thereof, the writ is returnable 531 532

Reyes v. Court of Appeals, G.R. No. 182161, December 3, 2009, 626 SCRA 580. G.R. No. 182498, June 22, 2010. E-109

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before such court or judge; when issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred; or when issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.533

8. Payment of docket fees is not required. The petitioner is exempt from the payment of the docket and other lawful fees and the court, justice or judge dockets the petition and acts upon it immediately.534 9. Summary hearing. The hearing on the petition is summary. But the court may call for a preliminary conference to simplify issues and determine the possibility of obtaining stipulation and admissions from the parties. The hearing is from day to day until completed and given priority as petitions for habeas corpus.535 10. Interim reliefs. Under Section 14 of the Rule, upon filing of the petition or at any time before final judgment, the court may grant an interim relief order in the form of temporary protection order (TPO), inspection order (IO), production order (PO) or witness protection order (WPO). (For a more extensive discussion of the interim relief orders, please refer to the Chapter on Provisional Remedies).

11. Availability of interim reliefs to respondent. Upon a verified motion of respondent and after due hearing, the court may issue an inspection order or production order. A motion for inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.536 12. Contempt. The court may order the respondent who refuses to make a return, or who makes a false return or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt and may be imprisoned or imposed a fine.537

533

Id., Sec. 3. Id., Sec. 4. 535 Id., Sec. 13. 536 Id., Sec. 15. 537 Id., Sec. 17. 534

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13. Burden of proof and standard of diligence required. The parties establish claims by substantial evidence. Hence, the respondent who is a private individual or entity must prove that ordinary diligence was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence was observed in the performance of duty. However, the respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.538 14. Judgment. The court renders judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court grants the privilege of the writ and such reliefs, otherwise, the privilege is denied.539 In a petition for a writ of amparo granted by the Court of Appeals, Raymond and Reynaldo Manalo alleged that they were abducted by armed men belonging to the Citizens Armed Forces Geographical Unit (CAGFU) in San Ildefenso, Bulacan in February 2006 on the suspicion that they are members and supporters of the New Peoples’ Army. The Secretary of the National Defense and the Chief of Staff of the Armed Forces of the Philippines questioned the decision of the Court of Appeals that requires and directs their offices: to furnish the Manalos and the Court of Appeals with all official and unofficial investigation reports as to the Manalos’ custody; to confirm the present places of official assignment of two military officials involved; and to produce all medical reports and records of the Manalo brothers while under military custody. In upholding the decision of the Court of Appeals, the Supreme Court ruled that there is a continuing violation of the right to security of the Manalo brothers in that while the respondents were detained, they were threatened that if they escaped, they and their families would be killed.540 15. Appeal in writ of amparo. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both and the period of appeal is five (5) working days from the date of notice of the adverse judgment. The appeal petition for writ of amparo is given the same priority as habeas corpus cases.541 9. Effect on substantive rights. The Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. And, the Rules of Court apply suppletorily insofar as it is not inconsistent with the Rule.542 538

Id.. Id., Sec. 18. 540 Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008, 568 SCRA 1. 541 RULE ON THE W RIT OF AMPARO, Sec. 19. 542 Id., Secs. 24 and 25. 539

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B. WRIT OF HABEAS DATA 1. Definition. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.543

2. Nature of petition. Petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute. Hence, in one case,544 the Supreme Court held that the filing of the petitions should have been barred, for criminal proceedings against the parties had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court. However, according to the Supreme Court, the validity of the arrest or the proceedings conducted is a defense that may be set up by respondents during the trial. The relief afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings. To produce the investigation report of the Philippine National Police (PNP) regarding the burning of homes is not a ground to issue writ of habeas data. In a petition for habeas data545 praying, among others, that the Philippine National Police (PNP) release the report, to wit: on the burning of the homes of the petitioners in the land in dispute, the acts of violence employed against them by the private respondents, and the investigation report if an investigation was conducted furnishing the Supreme Court and the petitioners with copy of the same, the Court found the petition to be lacking. What the Rule on Writ of Habeas Data requires- concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security as a minimum, thus rendering the petition fatally deficient. The Supreme Court continued to state in the above case that the petition did not allege, much less demonstrate, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition” that the Court - in the course of drafting the 543

RULE ON THE W RIT OF HABEAS DATA, Sec. 1. Castillo vs. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628. 545 Masangkay, et.al. v. Hon. Elmo del Rosario, G.R. No. 182484, June 17, 2008, 554 SCRA 768. 544

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Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In this light, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. 3. Where to file petition. The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.546 4. Docket fees in writ of habeas data. No docket and other lawful fees are required from an indigent547 petitioner. The petition is docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigence not later than fifteen (15) days from the filing of the petition.548 The clients of the Public Attorneys’ Office (PAO) are exempt from payment of docket and other fees incidental to instituting an action in court in original proceeding or on appeal.549

5. Petition for writ of habeas data and contents. A verified written petition for a writ of habeas data should contain the following: 1) personal circumstances of the petitioner and the respondent; 2) manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; 3) actions and recourses taken by the petitioner to secure the data or information; 4) location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; 5) relief prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and 6) other relevant relief as are just and equitable.550

546

RULE ON THE W RIT OF HABEAS DATA, Sec. 3. One who has no property and money sufficient for food, shelter, and basic necessities for them and their family, as held in the case of Algura v. Local Government of the City of Naga, G.R. No. 150135, October 30, 2006, 506 SCRA 81. 548 RULE ON THE W RIT OF HABEAS DATA, Sec. 5. 549 Rep. Act No. 9406, Sec. 16(d). 550 RULE ON THE W RIT OF HABEAS DATA, Sec. 6. 547

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6. Contents of return.551 The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: 1] the lawful defenses; 2] in case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and 3] other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition is not allowed.

7. Defenses heard in chamber. A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when data or information cannot be divulged to the public due to its nature or privileged character.552 8. Judgment. The court renders judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court enjoins the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ is denied. Upon its finality, the judgment is enforced by the sheriff or any lawful officer designated by the court, justice or judge within five (5) working days.553 9. Substantive rights and suppletory application of the Rule of Court. This Rule shall not diminish, increase or modify substantive rights,554 and the Rules of Court apply suppletorily insofar as it is not inconsistent with the Rule.555

551

Id., Sec. 7. RULE ON THE W RIT OF HABEAS DATA, Sec. 12. 553 Id., Sec. 16. 554 Id., Sec. 23. 555 Id., Sec. 24. 552

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