Memory Aid - 06 Special Proceedings

REMEDIAL LAW

SPECIAL PROCEEDINGS

R ULE 72 S UBJECT M AT TER AND A PPLICABILITY OF G ENERAL Special Proceeding A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Section 3c). SECTION 1. SUBJECT MATTER OF SPECIAL PROCEEDINGS Special proceedings enumerated in the Rules of Court (J-CRASHED-CHAG) 1. Judicial approval of voluntary recognition of minor natural children; 2. Change of name; 3. Rescission and revocation of adoption; 4. Adoption; 5. Settlement of estate of deceased persons; 6. Habeas corpus; 7. Escheat; 8. Declaration of absence and death; 9. Cancellation and correction of entries in the civil registry; 10. Hospitalization of insane persons; 11. Adoption; 12. Guardianship and custody of children; Other Special Proceedings (LCR-VA) 1. Liquidation proceedings; 2. Corporate rehabilitation; 3. Recognition and enforcement of arbitration clause or award; 4. Vacation, setting aside, correction or modification of an arbitral award; 5. Any application with a court for arbitration assistance and supervision. Note: The list under Sec. 1, Rule 72 is not exclusive. Any petition which has for its main purpose the establishment of a status, right or a particular fact may be included as a special proceeding (Festin, Special Proceedings, A Foresight to the Bar Exam: Question and Answer Notes,

Bar Questions, Cases, Updated Laws and Rules, 2011 ed., p. 1). SECTION 2. APPLICABILITY OF RULES OF 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. The word “practicable” is defined as: possible to practice or perform; capable of being put into practice, done or accomplished. This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring certificate of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings (Sheker v. Estate of Alice Sheker, Medina, G.R. No. 157912, December 13, 2007). Notwithstanding Sec. 2, Rule 72, intervention as set forth under Rule 19 does not extend to creditors of a decedent whose credit is based on a contingent claim. Sec. 1, Rule 19 requires that an intervenor “has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court x x x.” While the language of Sec. 1, Rule 19 does not literally preclude petitioners from intervening in the intestate proceedings, case law has consistently held that the legal interest required of an intervenor “must be actual and material, direct and immediate, and not simply contingent or expectant” (Hilado, et al. v. Court of Appeals, G.R. No. 164108, May 8, 2009). Ordinary Action

EXECUTIVE COMMITTEE IAN MICHEL GEONANGA overall chairperson, JOSE ANGELO DAVID chairperson for academics, RUTH ABIGAIL ACERO chairperson for hotel operations, ALBERTO RECALDE, JR. vice-chairperson for operations, MARIA CARMELA HAUTEA vice-chairperson for secretariat, MARK EMMANUEL ABILO vicechairperson for finance, RYAN LIGGAYU vicechairperson for electronic data processing, JOMARC PHILIP DIMAPILIS vice-chairperson for logistics

SUBJECT COMMITTEE CAMILLE SOLA subject chair, REA NIÑA OCFEMIA assistant subject chair, ARIEL MAGHIRANG edp, VIANNE MARIE GARCIA and FLOYD ERICSON REY civil procedure, SHEENA MARIE PABUSTAN special civil actions, CHARMAINE DATOC special proceedings, FIDEL ESTEBAN criminal procedure, EMMALLAINE LEONILLE LORETO and PRINCESS MAY BUTRON evidence, EDRIAN APAYA special laws

Special

MEMBERS Rachelle Ann Baod, Cecille Catherine Bautista, Sheigla Nerie David, Charisma Michelle de Jesus, Norietess de los Reyes, Nina Claire Escoto, Ryan Mervin Ferrer, Angel Garma, Robert Jay Lim, Divina Rosa Natanauan, Haroun AlRashid Pandapatan, Roger Arpee Pineda, Pia Mitzi Receno

San Beda College of Law 2010 Centralized Bar Operations

Nature

Purpose

Governing Rules Court with Jurisdiction

Generally adversarial in nature. There are definite parties – plaintiff vs. defendant. To protect or enforce a right or prevent or redress a wrong. It is governed by ordinary rules supplemented by special rules. It is heard by courts of general jurisdiction.

Proceeding Generally no definite adverse party because it is directed against the whole world, as majority of special proceedings are in rem. To establish a right, status or fact. It is governed by special rules supplemented by ordinary rules. It is heard by courts of limited jurisdiction. Initiated by means of a petition and parties respond by means of an opposition after notice and publication are made.

How initiated

Initiated by a pleading and parties respond through an answer after being served with summons.

Applicability of pleadings

Parties are generally allowed to file an answer, counterclaim, cross-claim and third-party complaint.

Law on pleadings generally not applicable.

The period to appeal is only 15 days and notice of appeal suffices.

The period to appeal is 30 days and aside from a notice of appeal, a record on appeal is required.

Appeal

Ordinary Civil Action One by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong.

Special Civil Action

Special Proceeding

Civil action subject to specific rules.

Remedy by which a party seeks to establish a status, a right or a particular fact.

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Governed by the rules for ordinary civil actions. Involves two or more parties. Initiated complaint.

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Based on a cause of action.

Ordinary rules apply primarily but subject to specific rules. Involves two or more parties. Some are initiated by complaint while some are initiated by petition. Some special civil actions have no cause of action.

Governed by special rules and ordinary rules apply as far as practicable. May involve only one party. Initiated petition.

by

Not based on a cause of action (except Habeas Corpus).

Summary of venues and jurisdiction for different Special Proceedings Venue Jurisdiction Estate settlement (Rules 73-90) Province of decedent’s MTC – If estate’s gross residence at the time of value does not exceed death PhP300K (PhP400K in Metro Manila) If non-resident decedent – RTC – If estate’s gross Province where he had value exceed MTC’s estate jurisdiction Escheat (Rule 91) If decedent dies intestate and without heirs – Province where decedent last resided or where estate is If reversion – Province where land lies wholly/partially Guardianship (Rule 92) Where ward resides or Family Court – If minor where his property is located ward (if non-resident) RTC – If other than minor ward Trusteeship (Rule 98) Where the will was allowed RTC or where the property affected by the trust is located Adoption (AM No. 02-6-02, RA 8043) If domestic – where adopter Family Court resides If inter-country – where Family Court or Interadoptee resides (if filed with Country Adoption Board Family Court) If rescission of adoption – Family Court

San Beda College of Law 2010 Centralized Bar Operations where adoptee resides Habeas Corpus (Rule 102) Where detainee is detained SC (on any day and at (if filed in RTC) any time, enforceable anywhere in the Philippines) Sandiganbayan (only in aid of its appellate jurisdiction) CA (in instances authorized by law, enforceable anywhere in the Philippines) RTC (on any day and at any time, enforceable only within its judicial district) Family Court (on custody of minors, enforceable within its territorial jurisdiction, [Sec. 20, AM No. 03-04-04-SC]) Writ of Amparo (AM No. 07-9-12-SC) Where the threat or SC, CA, Sandiganbayan, act/commission or any of its RTC elements occurred Writ of Habeas Data (AM No. 8-1-16-SC) Petitioner’s residence or RTC where the place the information is gathered/collected/stored, at SC, CA, Sandiganbayan If the action concerns the petitioner’s option public data files of government offices Change of name (Rule 103) If judicial - Where the person RTC applying for the change of his name resides If administrative - a) Local Local civil registry or civil registry where the record Philippine consulate sought to be changed is kept b) Local civil registry of the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates (only for Philippine citizens who reside in foreign countries) Declaration of absence and appointment of their representative (Rule 107)

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Where absentee last resided RTC Cancellation/Correction of entries in the civil registry (Rule 108) If judicial – where the RTC concerned civil registry is located If administrative Local civil registry or a) Local civil registry where Philippine Consulate the record sought to be changed is kept b) Local civil registry of the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates (only for Philippine citizens who reside in foreign countries) Special Proceedings under various laws and SC Circulars a. Petitions under the Family Courts Act (R.A. No. 8369) 1. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC, March 15, 2003); 2. Rule on Legal Separation (A.M. No. 02-11-11-SC, March 15, 2003); 3. Rule on Provisional Orders (A.M. No. 02-11-12-SC, March 15, 2003); 4. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minor Children (A.M. No. 03-04-04, April 22, 2003); 5. Summary of Judicial Proceedings under the Family Code (Arts. 238-253, New Civil Code) b. Proceedings for protection orders under the Violence against Women and their Children Act (R.A. No. 9262) 1. Rule on Violence against Women and Children (A.M. No. 04-10-11, October 19, 2004) c. Proceedings under the Arbitration Law (R.A. No. 876) and Alternative Dispute Resolution Act (R.A. No. 9285) 1. Arbitration; court-annexed mediation and judicial dispute resolution (A.M. No. 01-10-5-SC-PHILJA, October 16, 2001).

S ETTLEMENT OF E ST ATE D ECE AS ED P ERSONS

OF

San Beda College of Law 2010 Centralized Bar Operations

RULES 73-90

SECTION 1. WHERE ESTATE OF DECEASED PERSONS SETTLED

Different modes of settlement of estate of a deceased person/presumed dead 1. Extrajudicial Settlement of Estate (Section 1, Rule 74); 2. Summary Settlement of Estate of Small Value (Section 2, Rule 74); 3. Partition (Rule 69); 4. Probate of Will (Rule 75 to 79); 5. Petition for Letters of Administration in cases of Intestacy (Rule 79); Procedure in settlement proceedings (Judicial) Petition for Probate of will, if any (Rule 75-76)

Venue 1. Inhabitant (Resident) of the Philippines (whether citizen or alien) – Court of the province/city where he resides at the time of death. 2. Inhabitant (Resident) of Foreign Country – Court of any province wherein he had his estate (Sec. 1, Rule 73).

Court order fixing the time and place for probate.

Publication of hearing for 3 successive weeks. Notice shall also be given to the designated/known heirs, legatees and devisees, and the executor if the one petitioning for allowance of the will is not the testator.

Residence Residence means his personal, actual or physical habitation, his actual residence or place of abode (Fule v. Court of Appeals, G.R. No. L-40502, November 29, 1976).

Issuance of Letters Testamentary/Administration (A special administrator may be appointed) (Rules 77-80)

Where the proceeding was commenced with a court of improper venue, as where the decedent was neither a resident at the time of his death nor had estate therein, and such objection was seasonably raised in the probate court, the petition should be dismissed and the proceedings should be instituted in the proper court (Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December 28, 1956).

Publication of Notice for Filing Claims Filing of Claims (Rule 86) Issuance of Order of Payment or Sale of Properties

Remedy if venue is improperly laid General Rule: Ordinary appeal not certiorari or prohibition.

Payment of Claims: Sale/Mortgage/Encumbrance of estate properties.

Exception: If want of jurisdiction appears on the record of the case (Sec. 1, Rule 73). The judicial settlement of a decedent’s estate is a proceeding in rem.

Distribution of remainder, if any (But this can be made even before payment if a bond is filed by the heirs).

V ENUE

Jurisdiction: It depends upon the gross value of the estate of the decedent: 1. In Metro Manila – MTC: gross value does not exceed PhP400,000.00, otherwise, RTC; 2. Outside Metro Manila – MTC: gross value does not exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4), Sec. 33(1), B.P. Blg. 129). . Note: Jurisdiction over the subject matter is determined by the allegations in the petition; (Cadimas v. Carrion, G.R. No. 180394, September 29, 2008); hence, it is not the actual gross value of the estate, which is the basis of jurisdiction but the alleged gross value of the estate.

Two kinds of settlement 1. Extrajudicial settlement – a proceeding where the decedent had left no will and no debts, and the heirs

R ULE 73 AND P ROCESSES

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San Beda College of Law 2010 Centralized Bar Operations adjudicate the estate among themselves without seeking letters of administration (Sec. 1, Rule 74). 2. Judicial settlement – Testate or intestate proceeding instituted in the country where decedent had his residence at the time of his death or had estate if a nonresident (Sec. 2, Rule 74). a. Summary judicial proceedings (if the value of estate is below PhP10,000); b. Regular settlement proceedings Extent of jurisdiction: Probate courts are courts of limited jurisdiction. it may only determine and rule upon issues relating to the settlement of the estate, namely: (LAD) 1. Liquidation of the estate; 2. Administration of the estate; and 3. Distribution of the estate (Herrera, Special Proceedings and Special Rules Implementing the Family Courts Act of 1997, 2005 ed., p. 12).

8. Matters incidental or collateral to the settlement and distribution of the estate (Regalado, Remedial Law Compendium Vol. II, 2008 ed., p. 13). Exclusionary Rule General Rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts. The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval v. Santiago, G.R. No. L-1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (Rodriguez v. De Borja, G.R. No. L-21993, June 21, 1966). Exception: Estoppel by Laches

General Rule: Probate court cannot determine issue of ownership. Exceptions: 1. Ownership may be provisionally determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action (Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504, May 7,1987); 2. When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced (Bernardo v. Court of Appeals, G.R. No. L-18148, Feb. 28, 1963); 3. Question is one of collation or advancement (Coca, et al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31, 1978). The RTC acting in its general jurisdiction is devoid of authority to render adjudication and resolve the issue of advancement of the real property in favor of an heir since reconveyance and annulment of title with damages is not the proper vehicle to thresh out said question (Natcher v. Court of Appeals, G.R. No. 133000, October 2, 2001). Other questions which the probate court can determine 1. Who the heirs of the decedent are; 2. The recognition of a natural child; 3. The validity of disinheritance effected by the testator; 4. Status of a woman who claims to be the lawful wife of the decedent; 5. The validity of a waiver of hereditary rights; 6. The status of each heir; 7. Whether property in inventory is conjugal or exclusive property of deceased spouse;

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Note: Jurisdiction under Rule 73 Sec. 1 does not relate to jurisdiction per se but to venue. Hence, institution in a court where the decedent is neither an inhabitant nor had his estate may be the subject of waiver (Uriarte v. CFI, G.R. No. L-21938-39, May 29, 1970). SECTION 2. WHERE THE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE Upon the death of either the husband or the wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. If both have died, liquidation may be made in the testate or intestate proceedings of either (Bernardo, et. al. v. Court of Appeals, et. al., G.R. No, L-18148, February 28, 1963). SECTION 3. PROCESS The RTC may issue warrants and processes to compel the attendance of witnesses. Writ of Execution General Rule: Probate court cannot issue writs of execution. Ratio: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process (Regalado, p.14). Exceptions: (CEE) 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88);

San Beda College of Law 2010 Centralized Bar Operations 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142). Under the rule of inclusio unius est exclusio alterius, these should be the only instances when the probate court can issue writ of execution (Vda. De Valera, et al., v. Ofilada, et al., G.R. No. L-27526, Sept. 12, 1974). SECTION 4. PRESUMPTION OF DEATH There is no need for an independent action for Declaration of Presumptive Death for purposes of Succession. The returning absentee’s recovery of his estate is subject to the following conditions: 1. All his debts must have been paid; 2. He shall recover his property in the condition in which it may be found together with the price of any property that may have been alienated or the property acquired therewith; 3. He is not entitled to the fruits of the rent (Art. 392, New Civil Code).

R ULE 74 S UMM ARY S ETTLEMENT E STATES

OF

General Rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor. Exception: The heirs may resort to: 1. Extrajudicial settlement of estate (Sec.1); 2. Summary settlement of estates of small value (Sec. 2). Note: In both exceptional circumstances, an administrator or executor need not be appointed.

SECTION 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS Extrajudicial Settlement

Procedure in extrajudicial settlement by agreement between/among heirs Division of estate in public instrument or affidavit of adjudication The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation Filing of bond equivalent to the value of personal property with the proper Registry of Deeds

Requisites: A.Substantive 1. The decedent left a. No will; b. No debts. 2. The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose. B. Procedural 1. Division of estate must be in a public instrument or by affidavit of self-adjudication in the case of a sole heir; 2. Filed with proper Registry of Deeds; 3. Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks; 4. Filing of the bond with the Register of Deeds equivalent to the value of personal property. (Sec. 1, Rule 74). Note: The bond is required only when personalty is involved. If it is a real estate, it shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond (Rebong v. Ibañez, G.R. No. L1578, September 30, 1947). The bond is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims filed under Sec. 4, Rule 74.

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San Beda College of Law 2010 Centralized Bar Operations Affidavit of Self Adjudication An affidavit required by Sec 1 of Rule 74 to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent. Is a public instrument necessary for the validity of an extra-judicial settlement? No. A private instrument/document or oral agreement of partition as well as a compromise agreement entered without previous authority of the court is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in a public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, March 29, 1947). Under the new Rules, it would appear that a public instrument is now required for registration. If the settlement is in a private instrument, it is believed that the same is still valid and reformation of the instrument may be compelled (Arts. 1359, et. seq., New Civil Code). Extrajudicial Settlement No court intervention. Value of the estate is immaterial. Allowed only in intestate succession. There must be no outstanding debts of the estate at the time of settlement. Resorted at the instance and by agreement of all heirs.

Summary Settlement Requires summary judicial adjudication. Gross estate must not exceed PhP10,000. Allowed in both testate and intestate It is available even if there are debts; it is the court which will make provision for its payment. May be instituted by any interested party even by a credit of the estate without the consent of all heirs.

Amount of bond is equal to Amount of bond is to be the value of personal determined by the court. property. Bond is filed with the Bond is filed with the court. Register of Deeds. Note: While the Rules provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L14921, December 31, 1960). Disputable presumption that decedent left no debts: If no creditor files a petition for letters of administration within 2 years after the death of the decedent it is presumed that the estate left no debts (Sec. 1, Rule 74).

Note: Section 1, Rule 74 does not preclude the heirs from instituting administration proceedings even if the estate has no debts or obligations, if they do not desire to resort, for good reasons, to an ordinary action for partition (Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952). “Good reason” depends on the circumstances of each case (Pereira v. CA, et al., G.R. No. 81147, June 20, 1989). SECTION 2. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE The gross value of the estate must not exceed PhP10,000. In accordance with B.P. Blg. 129, the summary settlement of estates of small value is within the jurisdiction of the MTCs. Important Requirements: 1. Application must contain allegation of gross value of estate; 2. Date for hearing: a. Shall be set by court not less than 1 month nor more than 3 months from date of last publication of notice; b. Order of hearing published, once a week for 3 consecutive weeks in a newspaper of general circulation. 3. Notice shall be served upon such interested persons as the court may direct; 4. Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Sec. 4. Procedure in summary settlement of estates of small value Application for summary settlement with an allegation that the gross value of the estate does not exceed PhP10,000.00 Publication of notice of the fact of summary Hearing to be held not for less3 consecutive than 1 monthweeks nor in a settlement once a week more than 3 months from the date of the last newspaper of general circulation (the court may also publication of notice court may direct)as such order notice to be given to other persons court may direct) Court to proceed summarily, without appointing an executor/administrator, and to make orders as may be necessary, such as: Grant allowance of the will, if any; Determine persons entitled to estate; Pay debts of estate which are due Filing of the bond fixed by the court

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Partition of the estate

San Beda College of Law 2010 Centralized Bar Operations was never intended to deprive heirs of their lawful participation in the estate (Benatiro v. Heirs of Cuyos, G.R. No. 161220, July 28, 2008). Note: The other heirs are also not bound by the extrajudicial settlement should the Deed of Extrajudicial Partition or Affidavit of Self-Adjudication be false (Sec. 4 in relation to Sec. 1).

SECTION 3. BOND TO BE FILED BY DISTRIBUTEES The amount of bond required under a summary settlement is determined by the court, unlike in an extrajudicial settlement where the amount is equal to the value of the personal property as established by the instrument of adjudication (Regalado, p. 21). SECTION 4. LIABILITY OF DISTRIBUTEES AND ESTATE When settlement of estates in the courts may be compelled: 1. If there is an undue deprivation of lawful participation in the estate; 2. The existence of debts against the estate; or 3. If there is an undue deprivation of lawful participation payable in money. Note: The bar against distributees from objecting to an extrajudicial partition after the expiration of two years is applicable only: a. To persons who have participated or taken part or had notice of the extrajudicial partition, and b. When all the persons or heirs of the decedent have taken part in the extrajudicial settlement (Sampio v. Court of Appeals, G.R. No. L-10474, February 28, 1958). Is a person who had no knowledge or had not participated in the extrajudicial settlement bound thereby by reason of constructive notice of publication? No. Extrajudicial settlement under Sec. 1 of Rule 74 is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby, and contemplates a notice that has been sent out or issued before any deed of settlement or partition is agreed upon, and not after such agreement has already been executed. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and

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Remedies of the Aggrieved Parties after Settlement of the Estate 1. Within 2 years - claim against the bond or the real estate or both (Sec.4, Rule 74); 2. Rescission in case of preterition of compulsory heir in partition tainted with bad faith (Article 1104, NCC); 3. Reconveyance of real property; 4. Action to annul a deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud; 5. Petition for Relief on the ground of FAME – fraud, accident, mistake, excusable negligence – 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38); 6. Reopening by Intervention within anytime before rendition of judgment, as long as it is within the reglementary period of 2 years; 7. New action to annul settlement within reglementary period of 2 years. An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (Marquez v. Court of Appeals, G.R. No. 125715, December 29, 1998). Where the estate has been summarily settled, the unpaid creditor may, within 2 years, file a motion in court wherein such summary settlement was had, for the payment of his credit. After the lapse of 2 years, an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond. The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (Land Registration Commission Circular 143 dated January 28, 1964).

San Beda College of Law 2010 Centralized Bar Operations Such lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established (Rebong v. Ibañez, G.R. No. L1578, September 30, 1947). SECTION 5. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON If on the date of the expiration of the two-year period, the creditor or heir is: 1. A minor; or 2. Incapacitated; or 3. In prison; or 4. Outside the Philippines. He may present his claim within one year after such disability is removed (Sec. 5 Rule 75).

R ULE 75 P RODUCTION OF W ILL A LLOWANCE OF W ILL N ECESS ARY SECTION 1. ALLOWANCE CONCLUSIVE AS TO EXECUTION

NECESSARY.

Nature of probate proceedings 1. In Rem: binding on the whole world (Regalado, p. 31). 2. Mandatory: no will shall pass either real or personal property unless it is proved and allowed in the proper court (Sec. 1, Rule 75). However, a will may be sustained on the basis of Article 1080 of the Civil Code which states that: “If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir” (Mang-Oy v. Court of Appeals, G.R. No. L-27421, September 12, 1986). 3. Imprescriptible – because of the public policy to obey the will of the testator. 4. The doctrine of estoppel does not apply. The presentation and probate of the will is required by public policy. It involves public interest (Fernandez v. Dimagiba, G.R. No. L-23638, October 12, 1967). SECTION 2. CUSTODIAN OF WILL TO DELIVER The custodian must deliver the will to the court or to the executor within 20 days after he learns of the death of the testator. SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST

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The executor, within 20 days after he knows of the testator’s death or after he knows that he is named an executor if he knows it after the testator’s death, shall: 1. Present the will to the court (unless it has reached the court in any other manner); and 2. Signify in writing his acceptance or refusal of the trust. SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT TO FINE FOR NEGLECT A fine not exceeding PhP2,000. SECTION 5. PERSON RETAINING WILL MAY BE COMMITTED Probate The act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried out insofar as they are in accordance with the law (also referred to as allowance of the will) (Jurado, Comments and Jurisprudence on Succession, 2009, 9th Edition, p. 134).

R ULE 76 A LLOWANCE OR D ISALLOW ANCE OF W ILL SECTION 1. WHO MAY PETITION FOR THE ALLOWANCE OF WILL 1. Executor; 2. Devisee or legatee named in the will; 3. Person interested in the estate (e.g. heirs); An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Sumilang v. Ramagosa, G.R. No. L-23135, December 26, 1967). 4. Testator himself during his lifetime; 5. Any creditor - as preparatory step for filing of his claim therein (Regalado, p.30). Who may be a party in probate? In general, any person having a direct and material interest in the will or estate (Trillana v. Crisostomo, G.R. No. L-3378, August 22, 1951). SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts – death of the testator and his residence at the time of death or the province where estate was left by the decedent who is a non-resident; 2. The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

San Beda College of Law 2010 Centralized Bar Operations 3. The probable value and character of the property of the estate; 4. The name of the person for whom letters are prayed; and 5. The name of the person having custody of the will if it has not been delivered to the court. But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. Effect of the probate of a will: It is conclusive as to the execution and validity of the will (even against the State). Thus, a criminal case against the forger may not lie after the will has been probated (Jurado, p. 144). May Sec. 1, Rule 76 be waived since it is just a procedural requirement? No because the same requirement is embodied in Art. 838 of the Civil Code, which is a substantive law. Issue in the probate of a will General Rule: Only determination of the extrinsic validity not the intrinsic validity or validity of testamentary dispositions. Exceptions: Principle of practical considerations 1. The waste of time, effort, expense plus added anxiety are the practical considerations that induced the SC to a belief that we might as well meet head-on the issues of the validity of the provisions of the will in question (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). 2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Acain v. Intermediate Appellate Court, G.R. No. 72706, October 27, 1987; Nepumuceno v. Court of Appeals, G.R. No. L-62952, October 9, 1985). Extrinsic Validity Means due execution of the will. Meaning of due execution (FM-VPS) 1. That the will was executed strictly in accordance with the formalities required by law; 2. That the testator was of sound and disposing mind when he executed the will; 3. That there was no vitiation of consent through duress, fear or threats; 4. That it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit; 5. That the signature of the testator is genuine, i.e., it was not procured through fraud and that the testator

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intended that what he executed was his last will and testament (Art. 839, New Civil Code). SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL; NOTICE THEREOF TO BE PUBLISHED The probate of a will is a proceeding in rem and the publication provided for by this Rule is a jurisdictional requirement. The personal service of notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. (Regalado, p. 31) If the petition for probate is on the testator’s own initiative during his lifetime (Ante Mortem): 1. No publication is necessary (Sec. 3); and 2. Notice shall be made only to the compulsory heirs (Sec. 4). Note: Three (3) weeks successively is not strictly 21 days. It is sufficient that publication has been made once a week successively three times, even if less than twenty- one days intervened between the first and last publication (Basa v. Mercado, G.R. No. L-42226, July 26, 1935). SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY Persons to be Given Notice: 1. Designated or known heirs, legatees and devisees; and 2. Executor and co-executor if not the petitioner. Modes of Notification 1. If by mail: 20 days before hearing 2. If through personal service: 10 days before hearing. SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST At the hearing, compliance of publication and notice must first be shown before introduction of testimony in support of the will. Evidence required in support of a will 1. Uncontested Will a. Notarial Wills: Testimony of at least one of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law (Sec.5). i. If all subscribing witnesses reside outside the province – deposition is allowed (Sec.7). ii. If the subscribing witnesses are dead, insane, or none of them resides in the Philippines – The court may admit testimony of other witnesses to prove the sanity of the testator, and the due execution of the will, and as evidence of the

San Beda College of Law 2010 Centralized Bar Operations execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them (Sec. 8). b.

Holographic Wills: the testimony of one witness who knows the handwriting and signature of the testator. In the absence thereof and if the court deem it necessary, expert testimony may be resorted to. In case of a holographic will, it is not mandatory that witnesses be first presented before expert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses must first be presented or accounted for (Azaola v. Singson, G.R. No. L-14003, August 5, 1960). This is so because holographic wills are not required to be witnessed and the existence of a qualified witness may be beyond the control or knowledge of the proponent of the will (Regalado, p. 35).

2. Contested Will a. Notarial Wills: All subscribing witnesses and the notary public before whom the will was acknowledged must be produced and examined (Sec. 11). However, if any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) are of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law (An instance where a party may impeach his own witness). b. Holographic Wills: 3 witnesses who know the handwriting of testator. In the absence thereof and if the court deem it necessary, testimony of an expert witness may be resorted to. However, in Codoy v. Calugay (G.R. No. 123486, Aug. 12, 1999), the SC ruled that if the holographic will is contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for its allowance. General Rule: A holographic will if destroyed cannot be probated. Exception: If there exists a Photostatic or Xerox copy thereof (Gan v. Yap, G.R. No. L-12190, August 30, 1958). Note: In the case of a contested notarial will, it is the duty of the petitioner to produce all the available attesting witnesses and the notary public, but he is not concluded

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by the testimony of said witnesses, even if adverse, as the court may still admit the will to probate on the basis of other satisfactory evidence (Fernandez v. Tantoco, G.R. No. 25489, September 8, 1926). This is an exception to the rule that a party is generally bound by the testimony or evidence that he presents, because here, unlike ordinary actions, he has no choice in the evidence as he is dutybound to account for all attesting witnesses. It has been held that the testimony of the notary before whom the will was acknowledged will prevail over that of the two attesting witnesses who claim undue execution of the will (Ramos, et. al. v. Court of Appeals, et. al. G.R. No. L40804, January 31, 1978). SECTION 6. PROOF OF LOST OR DESTROYED WILL. CERTIFICATE THEREUPON This section applies to a lost or destroyed notarial will and not to a holographic will. Facts which should be proved in order that a lost or destroyed will may be allowed: 1. That the will has been duly executed by the testator; 2. That the will was in existence when the testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and 3. The provisions of the will are clearly established by at least two credible witnesses. SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES SECTION 9. GROUNDS FOR DISALLOWING WILL Grounds provided for are exclusive: (FIDUS) 1. If not executed and attested as required by law; (formalities) 2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; 3. If it was executed under duress, or the influence of fear, or threats; 4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; 5. If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. Substantial Compliance Rule If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad

San Beda College of Law 2010 Centralized Bar Operations faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC). Separate wills which contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. De Perez v. Tolete, G.R. No. 76714, June 2, 1994). Separate Wills probated jointly in view of simultaneous deaths of the spouses testators: A literal application of the rules should be avoided if they would only result in the delay in the administration of justice. What the law expressly prohibits is the making of joint wills either for testators reciprocal benefit or of 3rd person. Wills of the decedent spouse are essentially similar in disposition and property; joint probate was allowed (Acain v. IAC, G.R. No. 72706, October 27,1987). Law governing forms of wills: The law in force at the time of the execution of a will (Art. 795, NCC). SECTION 10. CONTESTANT TO FILE GROUNDS OF CONTEST Contestant must: 1. State in writing his grounds for opposing the allowance of the will; and 2. Serve a copy thereof to petitioner and other interested parties. SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED SECTION 12. PROOF WHERE TESTATOR PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC WILL If there is no contest, the fact that the testator affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. In case of contest, the burden of proof is on the contestant. SECTION 13. CERTIFICATE OF ALLOWANCE ATTACHED TO PROVED WILL. TO BE RECORDED IN THE OFFICE OF REGISTER OF DEEDS. Order for probate is final. Thus, it is appealable.

R ULE 77 A LLOWANCE OF W ILL PROVED O UTSIDE OF P HILIPPINES AND A DM INISTRAT ION OF E STATE T HEREUNDER

SECTION 1: WILL PROVED OUTSIDE THE PHILIPPINES MAY BE PROVED HERE. It is a requirement that a will which was probated in a foreign country be re-probated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same. SECTION 2: NOTICE OF HEARING FOR ALLOWANCE. What should be filed: Petition for allowance accompanied with: 1. Authenticated copy of the will 2. Authenticated decree of the allowance thereof. The court will then fix a time and place for hearing and cause notice thereof to be given. With regard to notices, the will probated abroad should be treated as if it were an original will or a will presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the known heirs, legatees, and devisees of the testator resident in the Philippines and to the executor, if he is not the petitioner, are required (Salud Teodoro Vda. De Perez v. Hon. Zotico A. Tolete, G.R. No. 76714, June 2, 1994). Matters to be proven during a re-probate proceeding: 1. That the testator was domiciled in a foreign country; 2. That the will has been admitted to probate in such country; 3. That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; 4. The law on probate procedure in said foreign country proof of compliance therewith; and 5. The legal requirements in said foreign country for the valid execution of the will (De Perez v. Tolete, supra). Effects of the allowance of a will under Rule 77: 1. The will shall be treated as if originally proved and allowed in Philippine courts; 2. Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines; 3. After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. Note: In the absence of proof of the foreign law, it is presumed that it is the same as that in the Philippines (Doctrine of Processual Presumption).

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San Beda College of Law 2010 Centralized Bar Operations The venue for the petition for re-probate is the same as that provided for in Rule 73. A will of a foreigner executed abroad can be probated in the Philippines without need of being probated abroad. Art. 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country. Reprobate of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. Reprobate is specifically governed by Rule 77. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established. If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance (In Re: Palaganas, G.R. No. 169114, 26 January 2011).

R ULE 78 L ETTERS T ESTAM ENT ARY AND OF A DM INISTRAT ION , WHEN AND TO WHOM I SSUED Who can administer the estate? 1. Executor – the one named by the testator in his will for the administration of his property after his death. 2. Administrator, regular or special – the one appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate (Rule 80). 3. Administrator with a will annexed – the one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such (Rule 79, Section 1). Who may serve as an executor or administrator? Any competent person may serve as executor or administrator. SECTION 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS 1. A minor; 2. A non-resident; 3. One who in the opinion of the court is unfit to exercise the duties of the trust by reason of: a. Drunkenness – when the habits of drink are carried so far as to cloud the brain and weaken their respect for honesty and integrity; The drunkenness contemplated by this statute, undoubtedly, is that

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excessive, inveterate and continued use of intoxicants, to such an extent as to render the subject of the habit as unsafe against to entrust with the care of property or the transaction of business (Herrera, p. 78). b. Improvidence – means the want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value (Black’s Law Dictionary, 5th ed., p.682). c. Want of understanding – amounts to lack of intelligence such as would or might subject one to sinister influence or coercion against the general interest of the estate (Herrera, p.80). d. Want of integrity – integrity is synonymous to probity, honesty and uprightness in business relations with others. The accusation should be certain and grave in its nature (Herrera, p.80). e. Conviction for an offense involving moral turpitude – an act of baseness, vileness or depravity in the private and social duties which a man owes his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty or good morals (Zari v. Flores, A.M. No. (2170-MC) P-1356 November 21, 1979). 4. The executor of an executor cannot administer the estate of the first testator (Sec. 2). Executor and Administrator; Distinguished Executor Administrator Appointed by the court in case the testator did not appoint an executor or if the executor refused Nominated by the testator appointment (administrator and appointed by court. with a will annexed) or if the will was disallowed or if a person did not make a will (intestate succession). Must present will to the court within 20 days after he knows of the death of testator or after he knew that he was appointed as executor (if he obtained No such duty. such knowledge after death of testator), unless the will has reached the court in any manner.

San Beda College of Law 2010 Centralized Bar Operations Executor Testator may provide that he may serve without a bond (but court may direct him to give a bond conditioned only to pay debts). Compensation may be provided for by the testator in the will, otherwise Sec. 7, Rule 85 will be followed.

Those persons who are entitled by law to receive the decedent’s property (Regalado, p. 46).

Administrator Required unless exempted by law

Compensation is governed by Sec. 7, Rule 85.

SECTION 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER ESTATE SECTION 3. MARRIED WOMEN MAY SERVE SECTION 4. LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED Testamentary Privilege The right given by law to a person to dispose of his property when he dies. Letters Testamentary An authority issued to an executor named in the will to administer the estate (Festin, p. 46). Letters of Administration An authority issued by the court to a competent person to administer the estate of the deceased who died intestate (Festin, p. 46). Letters of Administration with a Will Annexed An authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office or if the person name is incompetent. SECTION 5. WHERE SOME CO-EXECUTORS DISQUALIFIED, OTHERS MAY ACT SECTION 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED Order of preference in granting letters of administration 1. The surviving husband or wife or the next of kin, or both in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve (surviving spouse or next of kin or their nominee); Next of Kin

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2. If the surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, or if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration by them or their nominee, any one or more of the principal creditors, if competent and willing to serve; However, neglect of such persons to apply for letters administration for 30 days after death is not sufficient to exclude the widow from the administration of the estate of her husband. There must be a very strong case to justify the exclusion of the widow from the administration (Herrera, p. 84). 3. If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select (stranger). Note: As a general rule, the court cannot set aside the order of preference under Sec. 6 Rule 78. Exception: In case the persons who have the preferential right to be appointed under the rule are not competent or are unwilling to serve, administration or they neglect to apply for letters of administration for 30 days after the decedent’s death, the letters may be granted to such other person as the court may appoint. The order of appointment of regular administrator is final and appealable. Basis for the preferential right: The underlying assumption is that those who will reap the benefits 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 higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769 September 28, 1990). Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. Court of Appeals, G.R. No. 26751, January 31, 1969). Scope or limits of administration: The general rule is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country (Leon v. Manufacturers Life Insurance Co., G.R. No. L-3677, November 29, 1951).

San Beda College of Law 2010 Centralized Bar Operations Note: A party indebted to the decedent’s estate cannot compatibly perform the duties of an administrator and should not be appointed as such (Lim v. Diaz-Millarez, G.R. No. L-17633, October 19, 1966). Where such fact of indebtedness was only subsequently discovered after the administrator had been duly appointed, he should not be removed, absent any other lawful ground (Dalisay, etc. v. Consolacion, etc., G.R. No. L-44702, July 30, 1979).

R ULE 79 O PPOSING I SSUANCE OF L ETTERS T EST AM ENT ARY , P ETITION AND C ONTEST FOR L ETTERS OF A DM INISTRAT ION SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY. SIMULTANEOUS PETITION FOR ADMINISTRATION The main issue is the determination of the person who is rightfully entitled to administration. Persons to oppose the issuance of letters: Any person interested in the will.

believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulled (Eusebio v. Valmores, G.R. No. L-7019, May 31, 1955). SECTION 4. OPPOSITION ADMINISTRATION

TO

PETITION

FOR

Grounds for Opposition: 1. Incompetence; 2. Preferential right of the heir under Sec. 6, Rule 78. SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE Letters of Administration shall issue if it is proven that: 1. Notice as required in Sec. 3 was given; and 2. The decedent left no will; or there is no competent and willing executor. SECTION 6. WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court.

In order to be a party, a person must have material and direct, and not one that is only indirect or contingent, interest (Saguinsun v. Lindayag, G.R. No. L-17759, December 17, 1962). The opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed. SECTION 2. CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 1. The jurisdictional facts; 2. The names, ages, residences of heirs and the names and ages of the creditors; 3. The probable value and character of the estate; and 4. The name of the person for whom letters are prayed for. No defect in the petition shall render void the issuance of the letters of administration. SECTION 3. COURT TO SET TIME FOR HEARING. NOTICE THEREOF Publication for 3 weeks and notice to heirs, creditors and other persons believed to have an interest in the estate is required before hearing. Note: Sec. 3 of this Rule is jurisdictional. Where no notice as required by this section has been given to persons

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R ULE 80 S PECIAL A DM INISTRAT OR SECTION 1. APPOINTMENT ADMINISTRATOR

OF

SPECIAL

Special Administrator A representative of the decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed (Fule v. CA, G.R. No. L-40502, November 29, 1976). Ancillary Administrator A person appointed by the court in a state where the descendant was not domiciled to manage the assets and liabilities and to oversee the distribution of decedent’s estate in that state. Such an administrator usually works as an adjunct to the executor or administrator appointed in the state where the decedent was domiciled (See Perkins v. Benguet Cosolidated, Inc., Gr No. L-23145, November 29,1968).

San Beda College of Law 2010 Centralized Bar Operations When may a probate court appoint a special administrator? 1. Delay in granting of letters by any cause including appeal in the probate of the will; 2. Executor is a claimant of the estate that he represents (Section 8, Rule 86). Note: In the second instance, the administrator shall have the same powers as that of a general administrator but only insofar as the claim of the executor is concerned. Order of Appointment (Discretionary) The preference accorded by Sec. 6 of Rule 78 of the Rules of Court to a surviving spouse refers to the appointment of a regular administrator, not to that of special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable (Pijuan v. De Gurrea, G.R. No. L21917, November 29, 1966). Regular Administrator

Special Administrator

Order of Appointment is Order of Appointment is interlocutory and is not final and is appealable. appealable. One of the obligations is to Cannot pay debts of the pay the debts of the estate. estate. Appointed when decedent died intestate or did not appoint an executor in the will or will was disallowed.

Appointed when there is delay in granting letters testamentary or administration or when the executor is a claimant of the estate.

SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR 1. Possess and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same; 2. Commence and maintain suit for the estate; 3. Sell only: a. Perishable property; and b. Other property ordered sold by the court; 4. Pay debts only as may be ordered by the court. The special administrator also has the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond (Sec 4, Rule 81). SECTION 3. WHEN POWERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING SUITS

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When does the power of a special administrator cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator. Is an appointment of a special administrator appealable? No, as expressly provided for in Sec. 1, Rule 109. The only remedy against the appointment of a special administrator is Certiorari under Rule 65. Certiorari, however, requires nothing less than grave abuse of discretion (Tan v. Gedorio, Jr., G.R. No. 166520, 14 March 2008). However, there must be a Temporary Restraining Order or Injunction Order to stop the Special Administrator from assuming the position (Sec. 7, Rule 65) . An appointment of a regular administrator is appealable because it is a final order (De Borja v. Tan, G.R. No. L6476, November 18, 1955). There are important duties devolving on a regular administrator which a special administrator cannot perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed (Reynoso v. Santiago, G.R. No. L-3039, December 29, 1949). Note: A special administrator is appointed only for a limited time and for a specific purpose. Naturally, because of the temporary and special character of his appointment, it was deemed by the law not advisable for any party to appeal from said temporary appointment (De Borja v. Tan, supra). While a special administrator may commence and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala v. Gonzales, et al., G.R. No. L-30289, March 26, 1929). Such suit must await the appointment of a regular administrator.

R ULE 81 OF E XECUTORS

B ONDS A DM INISTRAT ORS

AND

SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. When bond is filed: Before an executor or administrator enters upon the execution of his trust. Amount: To be fixed by the court.

San Beda College of Law 2010 Centralized Bar Operations Purpose: It is intended as an indemnity to the creditors, the heirs and the estate. It shall be accountable for any breach of duty that may be done by the administrator or executor. The liability may be enforced by motion or in a separate civil action (Festin, p.56). Conditions of the bonds: 1. Make within 3 months a true and complete inventory of the property of the deceased which came to his knowledge and possession; 2. Administer the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds; 3. Render a true and just account within one year and when required by the court; 4. Perform all orders of the court. Administrator’s Bond – Statutory Bond Conditions prescribed by statute forms part of bond agreement. Terms and effectivity of bond do not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, G.R. No. L-40517, January 31, 1984). SECTION 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL WHEN FURTHER BOND REQUIRED Even if the testator has directed in his will that his executor serve without a bond, the court may still require him to file a bond conditioned only to pay the debts of the testator. SECTION 3. BONDS OF JOINT EXECUTORS AND ADMINISTRATORS SECTION 4. BOND OF SPECIAL ADMINISTRATOR Conditions of the bonds 1. Make and return a true inventory; 2. Render accounting when required by court; and 3. Deliver the estate to the person appointed executor or administrator or other authorized persons. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, Gr No. L-40517, January 31, 1984).

R ULE 82 R EVOCAT ION OF A DMINISTRATION , D EATH , R ESIGNATION AND R EMOVAL E XECUTORS AND

OF

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SECTION 1. ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREUPON When letters of administration revoked and powers cease: When the decedent’s will is allowed and proved by the court after the issuance of letters of administration. Duty of administrator upon revocation of the letters 1. Surrender the letters to the court; and 2. Render his account within such time as the court may direct. Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court (Reynoso v. Santiago, G.R. No. L-3039, December 29, 1949). Note: Testate proceedings take precedence over intestate proceedings for the same estate. First court – intestate; second court – testate: As a general rule, the court with which the petition is first filed must take cognizance of the settlement of the intestate estate. However, if it learns thereafter that another court has before it a petition for the probate of the decedent’s will, it may hold the petition before it in abeyance and defer to the second court where the probate proceedings are pending and if the will is admitted to probate therein, it will definitely decline to take cognizance (Cuenco v. Court of Appeals, G.R. No. L-24742, Oct. 26, 1973). Will discovered; administrator already appointed: If during the pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the probate of the will shall replace the intestate proceedings even if an administrator had already been appointed therein (Cuenco v. Court of Appeals, supra). However, the discovery of a document purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been proved and allowed by the court (Advincula v. Teodoro, G.R. No. L-9282, May 31, 1956). SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL

San Beda College of Law 2010 Centralized Bar Operations Grounds for removal of executor or administrator (RSPAI) 1. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules; 2. Absconding; or 3. Insanity or incapability or unsuitability to discharge the trust; 4. Neglect to render accounts (within 1 year and when required by the court); 5. Neglect to settle estate according to these rules. Other Valid Grounds for Removal of an Administrator: 1. Adverse interest of an administrator to that of the estate (Garcia v. Vasquez, G.R. No. L-26884, April 30, 1970). 2. Physical inability and consequent unsuitability to manage the estate (De Borja v. Tan, G.R. No. L-6476, November 18,, 1955). 3. False representation by an administrator in securing his appointment (Cobarrubias v. Dizon, G.R. No. L-225, February 26, 1946). The order of removal is appealable (Borromeo v. Borromeo, G.R. No. L-6363, September 15, 1955). Note: Grounds are not exclusive. The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto (Cobarrubias v. Dizon, supra). Examples of valid removal of administrator a. Disbursement of funds of the estate without judicial approval; b. False representation by an administrator in securing his appointment; c. Holding an interest adverse to that of the estate or by his conduct shows unfitness to discharge the trust; d. Physical inability and consequent unsuitability to manage the estate. Degree of diligence required: An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. SECTION 3. ACTS BEFORE REVOCATION, RESIGNATION OR REMOVAL TO BE VALID Lawful acts of an administrator or executor before the revocation, resignation, or removal are valid. SECTION 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE

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Power of the new executor or administrator 1. Collect and settle the estate not administered; 2. Prosecute or defend actions commenced by or against the former executor or administrator; and 3. Have execution on judgments recovered in the name of former executor or administrator. Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing.

R ULE 83 I NVENTORY AND A PPRAIS AL P ROVISION FOR S UPPORT OF F AM ILY SECTION 1. INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS Inventory and appraisal must be made within 3 months from the grant of letters testamentary or of administration. The three-month period is not mandatory. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrator’s unexplained delay in filing the inventory may be a ground for his removal (Sebial v. Sebial, G.R. No. L-23419, June 27, 1975). Approval of an inventory is not a conclusive determination of what assets constituted the decedent’s estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership. Property claimed by third persons may be included in the inventory as part of the assets of the estate and the probate court may order such inclusion, but such order of the probate court is only a prima facie determination and does not preclude the claimants from maintaining an ordinary civil action for the determination of title (Gonzales v. CFI Manila, G.R. No. L-34395, May 19, 1981). SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED 1. Wearing apparel of the surviving spouse and minor children; 2. Marriage bed and bedding; 3. Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. SECTION 3. ALLOWANCE TO WIDOW AND FAMILY

San Beda College of Law 2010 Centralized Bar Operations Allowance Refers to the monetary advances which are subject to collation and are likewise deductible from their share in the estate of the decedent. Persons entitled to allowance during proceedings 1. Legitimate surviving spouse (Nepomuceno v. Court of Appeals, G.R. No. L-62952, October 9, 1985); and 2. Children of the decedent. Note: According to Art. 188 of the Civil Code, the children need not be minors or incapacitated to be entitled to allowance (Santero v. CFI of Cavite, G.R. No. 6170003, Sept. 24, 1987). Grandchildren are not entitled to allowance under Rule 83 (Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 1996). When liabilities exceed the assets of the estate, his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support, having the character of an advance payment, is to be deducted from the respective share of each heir during distribution (Wagner v. Moore, G.R. No. L-25842, March 18, 1927).

R ULE 84 G ENERAL P OWERS AND D UTIES OF E XECUTORS AND A DM INISTRAT ORS SECTION 1. EXECUTOR OR ADMINISTRATOR TO HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY. HOW RIGHT ENFORCED SECTION 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR SECTION 3. EXECUTOR OR ADMINISTRATOR TO RETAIN WHOLE ESTATE TO PAY DEBTS AND TO ADMINISTER ESTATE NOT WILLED Powers of the executor or administrator of the estate (BERIP) 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner; 2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3. To maintain in tenantable repair, houses and other structures and fences and to deliver the same in such

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repair to the heirs or devisees when directed so to do by the court; 4. To make improvements on the properties under administration with the necessary court approval except for necessary repairs (Herrera, p. 121); 5. To possess and manage the estate when necessary: a. For the payment of debts; and b. For payment of expenses of administration. Some restrictions on the power of an administrator or executor (cannot ABS-LCP) 1. Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration Art. 1491, NCC); 2. Cannot borrow money without authority of the court; 3. Cannot speculate with fund under administration (Sec. 2, Rule 85); 4. Cannot lease the property for more than one year (Art. 1878, NCC); A view is held, however, that the aforesaid provision of Art. 1878 of the Civil Code on agency should not apply to leases entered into by an executor or administrator, under the theory that they represent not only the estate but also the parties interested therein, that they are required to file a bond and that their acts are subject to specific provisions of law and orders of the probate court, which circumstances are not true with respect to agents (Regalado, p. 65). 5. Cannot continue the business of the deceased unless authorized by the court (Sec. 1, Rule 84); 6. Cannot profit by the increase or decrease in the value of the property under administration (Sec. 2, Rule 85). Note: The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of the administration (Estate of Hilario Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 1996).

R ULE 85 A CCOUNT ABILITY AND C OMPENSATION OF E XECUTORS AND A DM INISTRAT ORS SECTION 1. EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME

San Beda College of Law 2010 Centralized Bar Operations General Rule: The executor or administrator is accountable for the whole estate of the deceased. Exception: He is not accountable for properties which never came to his possession. Exception to the Exception: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge. SECTION 2. NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE Administrator or executor shall not profit by the increase of the estate nor be liable for any decrease which the estate, without his fault, might have sustained. SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE The executor or administrator is not accountable if debt remains uncollected without his fault. SECTION 4. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM If executor or administrator uses or occupies real estate under administration, he must account for it. SECTION 5. ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY When accountable: 1. If an executor or administrator: a. Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased; or b. Neglects to pay over the money he has in his hands; and 2. The value of the estate is lessened; or 3. Unnecessary cost or interest accrues; or 4. The persons interested suffer loss. SECTION 6. WHEN ALLOWED MONEY PAID AS COSTS SECTION 7. WHAT EXPENSES AND FEES ALLOWED EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED Expenses of Administration Those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits.

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Compensation if there is no provision in the will 1. PhP4.00 a day for the time actually and necessarily employed; or 2. Commission. 3. A greater sum may be allowed if: a. The estate is large; b. The settlement has been attended with great difficulty; c. The settlement has required a high degree of capacity of the executor or administrator. Attorney’s fees: An administrator who is a lawyer may not recover attorney’s fees from the estate; his compensation is fixed by the rule but such compensation is in the nature of executor’s or administrator’s commissions, and never as attorney’s fees. A lawyer of an administrator or executor may not charge the estate for his fees, but rather, he must charge his client (the executor or the administrator). Where the administrator is himself the counsel for the heirs, it is the latter who must pay therefor. When a lawyer has rendered legal services to the executor or administrator to assist him in the execution of his trust, his attorney’s fees may be allowed as expenses of administration. The estate, is, however, not directly liable for his fees, the liability for the payment resting primarily on the executor or administrator. If the administrator had paid the fees, he would be entitled to reimbursement from the estate (Occena v. Marquez, G.R. No. L-27396, September 30, 1974). Procedure for collection of attorney’s fees 1. Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay; or 2. Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an expense of administration (Herrera, p.123). SECTION 8. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT General Rule: Within one year from the time of receiving letters testamentary or letters of administration. Exception: An extension of time is allowed by the court for presenting claims against, or paying the debts of the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.

San Beda College of Law 2010 Centralized Bar Operations The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from the initial accounting, the Rules provide that “he shall render such further accounts as the court may require until the estate is wholly settled.” (Tumang v. Laguio, G.R. No. L-50277, February 14, 1980). SECTION 9. EXAMINATIONS ON OATH WITH RESPECT TO ACCOUNT Examination may be dispensed with when: 1. No objection is made to the allowance of the account; and 2. Its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees and creditors have the same privilege of being examined. SECTION 10. ACCOUNT TO BE SETTLED ON NOTICE SECTION 11. SURETY ON BOND MAY BE PARTY TO ACCOUNTING

R ULE 86 C LAIM S

AGAINST

(Pineda v. CFI of Tayabas, G.R. No. L-30921, February 16, 1929). The heirs, even after distribution, are liable for inheritance and estate taxes (Government of the Philippine Islands v. Pamintuan, G.R. No. L-33139, October 11, 1930). SECTION 2. TIME WITHIN WHICH CLAIMS SHALL BE FILED Statute of Non-Claims The period fixed by the rule for the filing of the claims against the estate. Reason for the rule: For the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees or heirs. Where to File Claims: All money claims must be entertained by Settlement Court regardless of amount. (Sec. 1) In other words, B.P. Blg. 129 is not applicable. When to file claims General Rule: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Otherwise, they are barred forever. Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of nonclaims must still be complied with; otherwise the claim may also be barred.

E STATE

SECTION 1. NOTICE TO CREDITORS TO BE ISSUED BY COURT Money Claims Claims for money, debt or interest thereon upon a liability contracted by the decedent before his death (Festin, p. 75). When may the court issue notices to creditors to file their claims? Immediately after granting letters testamentary or of administration. Claims arising after his death cannot be presented except for: 1. Funeral expenses; and 2. Expenses of the last sickness of the decedent. Claims for taxes (inheritance and estate) due and assessed after the death of the decedent need not be presented in the form of a claim. The court in the exercise of its administrative control over the executor or administrator may direct the latter to pay such taxes

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Exception: Belated claims Belated Claims Claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding 1 month from the order allowing belated claims. Note: The statute of non-claims supersedes the statute of limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect; thus, a creditor cannot claim, even if within the statute of non-claims, if his claim has already prescribed under the statute of limitations.

San Beda College of Law 2010 Centralized Bar Operations However, a creditor barred by the Statute of Non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor (Sec 5). Good excuse for late filing The pendency of the action before the regular courts was cited as a good excuse for the tardiness of the claim (Echaus v. Blanco, G.R. No. L-30453, December 4, 1989). SECTION 3. PUBLICATION OF NOTICE TO CREDITORS. Publication of the notice for 3 successive weeks in a newspaper of general circulation in the province and post the same in 4 public places in the province and in 2 public places in the municipality where the decedent last resided.

(Belamala v. Polinar, G.R. No. L- 24098, November 18, 1967). Unpaid taxes are not covered by the statute of non- claims as these are monetary obligations created by law (Vera, et al. v. Fernandez, et al., G.R. No. L- 31364, March 30, 1979). Absolute Claim Such a claim as, if contested between living persons, would be proper subject of immediate legal action and would supply a basis of a judgment for a sum certain. Contingent Claim A conditional claim or claim that is subject to the happening of a future uncertain event. It has reference to the uncertainty of liability, and not to uncertainty of collection (Gaskell v. Tan Sit, G.R. No. 18405, September 23, 1922).

SECTION 4. FILING COPY OF PRINTED NOTICE. 10 days after publication and posting. Note: A notice to creditors to file their claims is not proper if only a special administrator has been appointed as a special administrator is generally not empowered to pay the debts of the deceased (Sec. 2, Rule 80) and his bond, unlike that of a regular administrator, is not conditioned upon the payment of such debts (Regalado, p. 74). SECTION 5. CLAIMS WHICH MUST BE FILED UNDER NOTICE. IF NOT FILED, BARRED; EXCEPTIONS. Claims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (Olave v. Canlas, G.R. No. L-12709, February 28, 1962). If the claim is secured; apply Sec. 7 of this Rule. Claims which should be filed under the Statute of Non-claims 1. Money claims, debts incurred by deceased during his lifetime arising from contract: a. Express or implied; b. Due or not due; c. Absolute or contingent. 2. Claims for funeral expenses; 3. For the last illness of the decedent; 4. Judgment for money against decedent. Note: The enumeration is exclusive (Festin, p. 75). A money claim arising from a crime of quasi-delict committed by the decedent is not included in the concept of claims which have to be filed under this Rule but should be the subject of an action against the executor or administrator (Sec. 1, Rule 87) or against the heirs

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Claims not yet due or contingent may be approved at their present value. A deficiency judgment is a contingent claim and therefore, must be filed with the probate court where the settlement of the deceased is pending, within the period fixed for the filing of claims (First National City Bank of New York v. Cheng Tan, G.R. No. L-14234, February 28, 1962). Claims Extinguished by Death

Actions which Survive

Personal to either of the parties and is extinguished by death

Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased

Examples: legal separation, annulment of marriage, declaration of nullity of marriage

Example: contractual money claim

Where the defendant dies while the action for a sum of money is pending against him in the Court of Appeals, he shall be substituted therein by his legal representative but the final judgment of the appellate court shall not be enforceable by a writ of execution but should be filed in the probate court as a money claim in accordance with Sec. 5 of Rule 86 (Paredes, et al. v. Moya, G.R. No. L38051, December 26, 1973). If none of the heirs is willing to be substituted defendant, the creditor has to procure the appointment of an executor/administrator (Sec. 16, Rule 3).

San Beda College of Law 2010 Centralized Bar Operations If a final judgment had already been rendered against the decedent prior to his death, but without levy on execution having been effected against his property, such judgment must also be filed as a claim against the estate in the manner provided for by this Rule. If levy has already been made before his death, execution shall proceed (Sec. 7 [c], Rule 39). SECTION 6. SOLIDARY OBLIGATION OF DECEDENT Claim should be filed against decedent as if he were the only debtor without prejudice on the part of the estate to recover contribution from the other debtor. Joint obligation of decedent The claim must be confined to the portion belonging to the decedent.

SECTION 7. MORTGAGE DEBT DUE FROM ESTATE Creditor holding a claim secured by a mortgage or other collateral security Alternative remedies: (AFR) 1. Abandon or waive the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate; 2. Foreclose his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a claim (contingent) against the estate within the statute of non-claims; 3. Rely solely on his mortgage and foreclose (judicially or extrajudicially) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. Note: The mortgage creditor can avail of only one of the three remedies and if he fails to recover under that remedy he can not avail of any of the other two remedies (Bachrach Motor Co., Inc., v. Icarangal, G.R. No. L45350, May 29,1939). The rule reserves a right to the executor or administrator of an estate to redeem a mortgaged or pledged property of a decedent which the mortgage or pledgee has opted to foreclose, instead of filing a money claim with the probate court, under said Section 7 of Rule 86. While the redemption is subject to the approval of the probate court,

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the exercise of the right is discretionary upon the said executor or administrator and may not be ordered by the probate court upon its own motion (Manalansan v. Castaneda, G.R. No. L-43607, June 27, 1978). SECTION 8. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE This is one of the instances where a special administrator is appointed. The special administrator will have authority to act only with respect to the claim of the regular administrator or the executor (Regalado, p. 83). SECTION 9. HOW TO FILE A CLAIM. CONTENTS THEREOF. NOTICE TO EXECUTOR OR ADMINISTRATOR How to file a claim: 1. Deliver the claim with the necessary vouchers to the clerk of court; 2. Serve a copy thereof on the executor or administrator; 3. If the claim is due, it must be supported by an affidavit stating the amount due and the fact that there has been no offsets; 4. If the claim is not due or contingent, it must be accompanied by an affidavit stating the particulars thereof. SECTION 10. ANSWER OF EXECUTOR OR ADMINISTRATOR. OFFSETS Executor shall file his answer to the claim within 15 days after service of a copy of the claim. The executor or administrator may interpose any counterclaim in offset of a claim against the estate. Said counterclaim is regarded as a compulsory counterclaim as the failure to file the same shall bar the claim forever. SECTION 11. DISPOSITION OF ADMITTED CLAIM The heir, legatee or devisee may oppose the claim admitted by the executor or administrator. SECTION 12. TRIAL OF CONTESTED CLAIM The court may refer the claim to a commissioner. SECTION 13. JUDGMENT APPEALABLE Judgment against the executor and administrator shall not create any lien upon the property of the estate or does not constitute a specific lien which may be registered on such property. Judgment of a probate court approving or disapproving a claim is appealable. Note: The mode of appeal is record on appeal and must be filed within 30 days from notice of judgment.

San Beda College of Law 2010 Centralized Bar Operations SECTION 14. COSTS

General Rule: The heirs have no legal standing to sue for the recovery of property of the estate during the pendency of administration proceedings.

R ULE 87 A CTIONS BY AND AG AINS T E XECUTORS AND A DM INISTRAT ORS SECTION 1. ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR AND ADMINISTRATOR Actions which may be commenced directly against the executor or administrator: 1. Recovery of real or personal property or any interest therein from the estate; 2. Enforcement of a lien thereon; 3. Action to recover damages for any injury to person or property, real or personal (tortuous acts). These are actions that survive the death of the decedent. An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment (Romualdez v. Tiglao, G.R. No. L-51151, July 24, 1981). Rule 87, Sec. 1 Actions that may be commenced directly against the executor and administrator 1. 1. Recovery of real/ personal property (or any interest therein) from the estate; 2. 2. 3. Enforcement of a lien 3. thereon; 4. 5. Action to recover damages 4. arising from tort. 5.

Rule 86, Sec. 5 Actions that may be commenced against the estate of the deceased Money claims, debts incurred by the deceased during his lifetime arising from contract; Claims for funeral expenses or for the last illness of the decedent; Judgment for against decedent.

money

Exceptions: 1. If the executor or administrator is unwilling or refuses to bring suit; 2. When the administrator is alleged to have participated in the act complained of and he is made a party defendant; 3. When there is no appointed administrator (see Rioferio, et al. v. Court of Appeals, G.R. No. 129008, January 13, 2004). SECTION 4. EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor. SECTION 5. MORTGAGE DUE ESTATE MAY BE FORECLOSED Note: There is no need for a special authority from the court for the administrator or executor to bring an action for foreclosure on behalf of the estate (Calimbas v. Paguio, G.R. No. L-22197, December 2, 1924). SECTION 6. PROCEEDINGS WHEN PROPERTY CONCEALED, EMBEZZLED, OR FRAUDULENTLY CONVEYED The court may cite any person suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or having in his possession or knowledge any deed, contract, bond, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased, to appear before it and be examined under oath; if such person refuses to appear, or to answer on such examination or such interrogatories, the court may punish him for contempt, and may commit him to prison.

SECTION 2. EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND ACTIONS WHICH SURVIVE

The interrogatories put to any such person, and his answers thereto, shall be in writing and filed with the clerk’s office.

SECTION 3. HEIR MAY NOT SUE UNTIL SHARE ASSIGNED Before distribution is made or before any residue is known, the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent.

Purpose: To elicit information or to secure evidence from those persons suspected of having possession or knowledge of property or will of the deceased, or of having concealed, embezzled or conveyed away any properties of the deceased (Herrera, p. 171).

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San Beda College of Law 2010 Centralized Bar Operations SECTION 7. PERSON ENTRUSTED WITH ESTATE COMPELLED TO RENDER ACCOUNT SECTION 8. EMBEZZLEMENT BEFORE LETTERS ISSUED The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of the estate.

SECTION 9. PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED. WHEN EXECUTOR OR ADMINISTRATOR MUST BRING ACTION This provision applies when there is a deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administration. The executor or administrator may, on his own initiative or on option of the creditors and as directed by the court, institute an action for the recovery of said property, but the court may direct the creditors to defray part of the costs and expenses of the suit since said action is for their own benefit (Regalado, p. 93). SECTION 10. WHEN CREDITOR MAY BRING ACTION. LIEN FOR COSTS Requisites Before Action may be filed by Creditors: (D-FAN LaBaN) 1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; 2. The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to attachment in his lifetime; 4. The executor or administrator has shown no desire to file action or failed to institute the same within a reasonable time; 5. Leave is granted by the court to the creditor to file the action; 6. A bond is filed by the creditor; 7. The action by the creditor is in the name of the executor or administrator. Note: The last three requisites are unnecessary where the grantee is the executor or administrator himself, in which

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event, the action should be in the name of all the creditors (Herrera, p. 175).

P AYM ENT

R ULE 88 OF THE D EBTS E STATE

OF THE

SECTION 1. DEBTS PAID IN FULL IF ESTATE SUFFICIENT A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or mortgage of the properties of decedent, the proceeds of which will satisfy the debts and expenses (Aldamiz v. Judge of CFI of Mindoro, G.R. No. L-2360, December 29, 1949). Is execution a proper remedy to satisfy an approved claim? No, because: 1. Payment approving a claim does not create a lien upon a property of the estate; 2. Special procedure is for the court to order the sale to satisfy the claim. General Rule: Payment of the debts of the estate must be taken in the following order of preference: 1. From the portion or property designated in the will, 2. From the personal property, and 3. From the real property. Exception: The court, on petition of interested parties, may modify such order of disposition. SECTION 2. PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION MADE BY WILL If the testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that will be followed. But if it is not sufficient, such part of the estate as is not disposed of by will, if any, shall be appropriated for that purpose. SECTION 3. PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN REALTY Two instances when realty is liable for debts and expenses 1. When the personal estate of the decedent is not sufficient for that purpose; 2. Where the sale of such personalty would be to the detriment of the participants of the estate.

San Beda College of Law 2010 Centralized Bar Operations SECTION 4. ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS If the court is satisfied that the contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands a sufficient part of the estate to pay a portion equal to the dividend of the creditors. Requisites (FAV): 1. Contingent claim is duly filed; 2. The claim has become absolute; and 3. Court is satisfied that the claim is valid.

SECTION 5. HOW CONTINGENT CLAIM BECOMING ABSOLUTE IN TWO YEARS ALLOWED AND PAID 1. If such contingent claim becomes absolute and is presented to the court as an absolute claim within two years from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims. 2. If the contingent claim matures after the expiration of the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them (Jaucian v. Querol, G.R. No. L-11307, October 5, 1918). It has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtor’s assets is under Sec. 5, Rule 88. The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees (De Bautista v. De Guzman, G.R. No. L-28298, November 25, 1983). SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATEES, OR HEIRS HAVE BEEN IN POSSESSION SECTION 7. ORDER OF PAYMENT IF ESTATE INSOLVENT If estate is insolvent, as in liabilities are more than the assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of the Civil Code (Concurrence and Preference of Credits) must apply. SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS SECTION 9. ESTATE OF INSOLVENT NONRESIDENT, HOW DISPOSED OF In case administration is taken in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his estate in the Philippines shall be so disposed of that his

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creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits. SECTION 10. WHEN AND HOW CLAIM PROVED OUTSIDE THE PHILIPPINES AGAINST INSOLVENT RESIDENT’S ESTATE PAID Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance therein may be added to the list of claims in the Philippines against the estate of an insolvent resident and the estate will be distributed equally among those creditors. Principle of reciprocity: The benefits of Sections 9 and 10 cannot be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines. SECTION 11. ORDER FOR PAYMENT OF DEBTS SECTION 12. ORDERS RELATING TO PAYMENT OF DEBTS WHERE APPEAL IS TAKEN. The court may order the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. SECTION 13. WHEN SUBSEQUENT DISTRIBUTION OF ASSETS ORDERED Conditions: 1. Whole of the debts are not paid; 2. Whole assets are not distributed; or 3. Other assets afterwards come to the hands of the executor or administrator. SECTION 14. CREDITORS TO BE ACCORDANCE WITH TERMS OF ORDER

PAID

IN

SECTION 15. TIME FOR PAYING DEBTS AND LEGACIES FIXED, OR EXTENDED AFTER NOTICE, WITHIN WHAT PERIODS Shall not exceed 1 year in the first instance. But court may extend period on application of executor or administrator and after hearing and notice on the following conditions: 1. The extension must not exceed 6 months for single extension; 2. The whole period allowed to the original executor or administrator shall not exceed 2 years.

San Beda College of Law 2010 Centralized Bar Operations Note: The provision is directory and extensions of the period may be granted by the court taking into account the circumstances attending the distribution of the estate (Regalado, p. 96). SECTION 16. SUCCESSOR OF DEAD EXECUTOR OR ADMINISTRATOR MAY HAVE TIME EXTENDED ON NOTICE WITHIN A CERTAIN PERIOD Successor of deceased executor or administrator may be given an extension not to exceed 6 months.

R ULE 89 S ALES , M ORTGAGES , AND OTHER E NCUM BRANCES OF P ROPERTY OF D ECEDENT SECTION 1. ORDER OF SALE OF PERSONALTY The court may order the whole or part of the personal estate to be sold if necessary: 1. To pay debts and expenses of administration; 2. To pay legacies; or 3. To cover expenses for the preservation of the estate. SECTION 2. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE, OR OTHER ENCUMBRANCE OF REALTY TO PAY DEBTS AND LEGACIES THOUGH PERSONALTY NOT EXHAUSTED 1. If personal estate is not sufficient to pay debts, expenses of administration and legacies; or 2. If the sale of personal estate may injure the business or other interests of those interested in the estate; and 3. If the testator has not made sufficient provision for payment of such debts, expenses and legacies; 4. If the deceased was in his lifetime under contract, binding in law to deed real property to beneficiary (Section 8); 5. If the deceased during his lifetime held real property in trust for another person (Section 9); Requisites: 1. Application of executor/administrator; 2. Written notice to heirs, devisees and legatees; and 3. Hearing. Note: Assets in the hands of executor/administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends. Notice is mandatory: Without notice and hearing, the sale, mortgage or encumbrance is void.

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Ratio: The reason behind this requirement is that the heirs are the presumptive owners. Since they succeed to all the rights and obligation of the deceased from the moment of the latter’s death, they are the persons directly affected by the sale or mortgage and therefore cannot be deprived of the property, except in the manner provided by law (Maneclang v. Baun, G.R. No. L-27876, April 22, 1992).

SECTION 3. PERSONS INTERESTED MAY PREVENT SUCH SALE, ETC., BY GIVING BOND If the opposition to the sale is based on the fact that the oppositor claims title to the property to be sold, the court will hold in abeyance the authority to sell such property until the issue of ownership has been settled in an ordinary action, since the probate court generally has no jurisdiction to resolve issues of ownership in the administration proceedings (Pio Barreto Realty Dev., Inc. v. Court of Appeals, et al., G.R. Nos. 62431-33, August 31, 1984). Conditions of bond: To pay the debts, expenses of administration and legacies within such time as the court directs. SECTION 4. WHEN COURT MAY AUTHORIZE SALE OF ESTATE AS BENEFICIAL TO INTERESTED PERSONS. DISPOSAL OF PROCEEDS The court may authorize the sale of whole or part of the estate if it appears beneficial to the heirs, devisees, legatees, and other interested persons. The proceeds shall be assigned to the persons entitled to the estate in the proper proportions. SECTION 5. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE OR OTHER ENCUMBRANCE OF ESTATE TO PAY DEBTS AND LEGACIES IN OTHER COUNTRIES When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses. SECTION 6. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE OR OTHER ENCUMBRANCE OF REALTY ACQUIRED ON EXECUTION OR FORECLOSURE SECTION 7. REGULATIONS FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE ENCUMBER ESTATE Application for authority to sell, mortgage or encumber property of the estate may be denied by the court if:

San Beda College of Law 2010 Centralized Bar Operations 1. The disposition is not for any of the reasons specified by the rules; or 2. Under Section 3 Rule 89, any person interested in the estate gives a bond conditioned to pay the debts, expenses of administration and legacies. In case of sale, may there be payment in installment? As a general rule no because one of the duties of an executor or administrator is to settle the debts of the estate; thus, there is a need for immediate cash. The exception is when the court so authorizes (Sec. 15, Rule 88). SECTION 8. WHEN COURT MAY AUTHORIZE CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY. NOTICE. EFFECT OF DEED SECTION 9. WHEN COURT MAY AUTHORIZE CONVEYANCE OF LANDS WHICH DECEASED HELD IN TRUST Liquidation The determination of all assets of the estate and payment of all debts and expenses

R ULE 90 D ISTRIBUTION AND P ART ITION THE E ST ATE

OF

SECTION 1. WHEN ORDER FOR DISTRIBUTION OF RESIDUE MADE General Rule: An order of distribution shall be made after payment of all debts, funeral expenses, expenses for administration, allowance of the widow and inheritance tax is made. Exception: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before payments of all debts, etc. In these proceedings, the court shall: 1. Collate; 2. Determine heirs; and 3. Determine the share of each heir. A separate action for the declaration of heirs is not necessary. Included in the jurisdiction of the probate court to make a declaration of heirs is the power to entertain the question whether or not a person is acknowledged natural child of

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decedent (Conde v. Abaya, G.R. No. 4275, March 23, 1909), the validity of disinheritance effected by the testator (Hilado v. Ponce de Leon, G.R. No. 8020-R, October 22, 1953), and the status of a woman who claims to be the lawful wife of the decedent (Torres v. Javier, G.R. No. L10560, March 24, 1916). However, the adoption decree cannot be assailed collaterally in settlement proceedings (Santos v. Aranzanso, G.R. No. L-26940, August 21, 1982). Declaration of Heirs The probate court has the power to entertain the question whether or not a person is an acknowledged natural child of the decedent. Thus, an action for compulsory recognition of a natural child may be instituted and decided in the proceeding for the settlement of the estate of the ancestor. But an adoption decree cannot be assailed in the settlement of the estate of the ancestor (Herrera, p.210). When is title vested? From the finality of the order of distribution. Orders that determine who the heirs are and their distributive shares are appealable. If not appealed within the reglementary period, they become final (Imperial v. Munoz, G.R. No. L-30787, August 29, 1974). Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs (Guilas v. Judge of CFI of Pampanga, G.R. No. L-26695, January 31, 1972) and/or persons entitled thereto. Conditions precedent to be complied with for the issuance of an order of distribution 1. Showing that the executor, administrator or person interested in the estate applied for it; and 2. The requirements as to notice and hearing upon such application have been fulfilled. Prohibition against interference by other courts: In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent’s estate, a court should not interfere with probate proceedings pending in a coequal court (Herrera, p. 215). Remedy of an heir who has not received his share: 1. File a motion with the probate court for delivery to him of his share; or 2. If the estate proceedings have been closed, file a motion for reopening of the proceeding, within the prescriptive period.

San Beda College of Law 2010 Centralized Bar Operations Note: The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered is binding against all of them (Manalo v. Paredes, G.R. No. 24168, September 22, 1925). It was ruled that a final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributes; and that the only instance where 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, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period (Del Rosario Vda. De Alberto v. Court of Appeals, G.R. No. L-29759, May 18, 1989). Writ of Execution General Rule: Probate court cannot issue writs of execution. Rationale: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process (Herrera, p. 222). Exceptions: (CEE) 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142). SECTION 2. QUESTIONS AS TO ADVANCEMENT TO BE DETERMINED SECTION 3. BY WHOM EXPENSES OF PARTITION PAID 1. By the executor or administrator if he has sufficient effects in his hands and when equitable and not inconsistent with the testator’s intention; otherwise, 2. By the parties in proportion to their respective shares or interest in the premises. Note: This is one of the instances where a writ of execution may be issued. SECTION 4. RECORDING THE ORDER OF PARTITION OF ESTATE

SECTION 1. WHEN AND BY WHOM PETITION FILED Escheat The proceeding whereby the real and personal property of a deceased person in the Philippines, who dies without leaving any will (or if the will was not allowed, hence, intestacy) and without any legal heirs, becomes the property of the State upon his death. Nature of escheat proceedings: Escheat is not an ordinary civil action but a special proceeding that should be commenced not by complaint but by petition (Municipal Council of San Pedro, Laguna v. Colegio de San Jose, G.R. No. L-45460, February 25, 1938). Three instances of escheats 1. When a person dies intestate leaving no heir but leaving property in the Philippines (Section 1); 2. Reversion Proceedings – Sale in violation of the Constitutional provision; This shall be governed by Rule 91. However, the action must be instituted in the province where the land lies in whole or in part. Note: Reversion will not be allowed even if the original buyer was an alien, if later on the title to the property was transferred by succession to the buyer’s heirs who are qualified parties, i.e. Philippine citizens (see Republic v. Registry of Deeds of Roxas City, G.R. No. 158230, 16 July 2008). 3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated). Escheat under the Unclaimed Balances Acts must be filed in the RTC of the place where the dormant deposits are found. What is the basis of the state’s right to receive property in escheat? Order of succession under the Civil Code, the state is the last heir of the decedent. Who is the real party in interest? In all actions for the reversion to the Government of lands of the public domain or improvements thereon, the Republic of the Philippines is the real party in interest. The action shall be instituted by the Solicitor General or the officer acting in his stead, in behalf of the Republic of the Philippines (Luis B. Manese, et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January 29, 2009). Where to file: Resident – RTC of last residence.

R ULE 91 E SCHE ATS

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San Beda College of Law 2010 Centralized Bar Operations Non-Resident – RTC of the place where his estate is located.

When to File: Within 5 years from date of judgment, otherwise it will be barred forever.

Requisites for filing of petition: 1. That a person died intestate; 2. That he left no heirs or persons by law entitled to the same; and 3. The deceased left properties.

Rationale: To encourage would-be claimants to be punctual in asserting their claims (Festin, p.103).

SECTION 2. ORDER FOR HEARING If the petition is sufficient in form and substance the court shall: 1. Make an order of hearing – hearing shall not be more than 6 months after entry of order; 2. Direct the publication of a copy of the order – at least once a week for 6 consecutive weeks.

Period of filing claim: judgment.

Remedy of respondent: When the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a Motion to Dismiss the petition (Herrera, p.227). SECTION 3. HEARING AND JUDGMENT Requisites: 1. Publication of the order; 2. Person died intestate; 3. He is seized of real/personal property in the Philippines; 4. He left no heir or person entitled to such property; and 5. There is no sufficient cause to the contrary. To whom the property escheated will be assigned: 1. If personal property – to the municipality or city where he last resided; 2. If real property – to the municipality or city where the property is situated; 3. If deceased never resided in the Philippines – to the municipality or city where the property may be found. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used (Sec. 3, Rule 91). The right to escheat may be waived expressly or impliedly (Herrera, p.229). SECTION 4. WHEN AND BY WHOM CLAIM TO ESTATE FILED Who may file a claim on the escheated property: Any devisee, legatee, heir, widow/er, or other person entitled thereto.

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SECTION 5. OTHER ACTIONS FOR ESCHEATS Within 5 years from the date of

Note: Under Art. 1014 of the Civil Code, the 5-year period is reckoned from the date the property was delivered to the state and further provides that if the property had been sold, the municipality or city shall be accountable only for such part of the proceeds as may not have been lawfully spent. By whom: A person with interest. Proceedings in escheat cannot be converted into settlement of the estate. For the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rule. An escheat court does not have the power to order or proceed with the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to the oppositors (Municipality of Magalloon, Negros Occ. v. Ignatius Henry Bezore, G.R. No. L- 14157, October 26, 1960).

G ENERAL G UARDIANS G UARDIANS HIP

AND

Guardianship of minors is now governed by the Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) which took effect on May 1, 2003 while guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship (Rule 92 to Rule 97) (Sec. 27, A.M. No. 03-02-05-SC). Guardianship The power of protective authority given by law and imposed in an individual who is free and in enjoyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself (Herrera, p. 235). Basis: Parens patriae Purpose: To safeguard the right and interests of minors and incompetent persons.

San Beda College of Law 2010 Centralized Bar Operations Guardian A person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane or other person incapable of managing his own affairs (Herrera, p. 235). Note: The court, in guardianship proceedings, is solely concerned with the ward’s custody and proper administration of his properties. Conflicts regarding ownership or title in the hands of a guardian, in his capacity as such should be litigated in a separate proceeding (Festin, p.126). In guardianship proceedings, the court cannot actually order the delivery of the ward’s property found to be embezzled, concealed or conveyed except when the title of the ward to the same is clear and indisputable. Absent the exception, the recovery of such property must be made in a separate proceeding (Cui v. Piccio, G.R. No. L5131, July 31, 1952). Kinds of Guardians A. According to scope: 1. Guardian of the person – one who has been lawfully invested with the care of the person of the minor; 2. Guardian of the property – one appointed to have the management of the estate of a minor or incompetent; 3. General guardian – one appointed to have the care and custody of the person and of all the property of the ward (Herrera, p. 237). B. According to constitution: 1. Legal guardian – without need of judicial appointment; 2. Guardian ad litem – appointed by courts of justice to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court. 3. Judicial gurdian – appointed in pursuance to law, as guardian for insane persons, prodigals, minors, etc. (Herrera, p. 237). Courts with jurisdiction 1. Regional Trial Courts – B.P. Blg. 129 provides that RTCs have jurisdiction over actions and special proceedings falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court (Herrera, p. 238). RTC has jurisdiction over proceedings on guardianship of incompetents. 2. Family Courts – R.A. No. 8369 otherwise known as Family Courts Act of 1997 vested the Family Courts with exclusive original jurisdiction on guardianship of minors (Herrera, p. 238).

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Procedure for Guardianship for Incompetent Persons who are not Minors Petition for the Appointment of a Guardian Court Order fixing the hearing of the petition Notice of the hearing Hearing and Appointment of the guardian Service of Judgment on the Local Civil Registrar Filing of Bond by the guardian Issuance of “Letters of Guardianship” Termination of guardianship

R ULE 92 V ENUE SECTION 1. WHERE TO INSTITUTE PROCEEDINGS Jurisdiction: Resident – RTC of his residence Non-Resident – RTC of the place where his property is located.

San Beda College of Law 2010 Centralized Bar Operations SECTION 2. MEANING “INCOMPETENT”

OF

THE

WORD

Incompetent includes: (CLeP DUN) 1. Those suffering from penalty of civil interdiction; 2. Hospitalized lepers; 3. Prodigals; Note: A prodigal is synonymous to a spendthrift or a person who by excessive drinking, gaming, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering or expose the town to charge or expense for the support of himself or his family (Cyclopedic Law Dictionary, 811). 4. Deaf and dumb who are unable to read and write; 5. Those of unsound mind though they may have lucid intervals; 6. Persons 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. SECTION 3. TRANSFER OF VENUE

R ULE 93 A PPOINTM ENT OF G UARDIANS SECTION 1. WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT (AFOD) 1. Any relative; 2. Friend; or 3. Other person on behalf of the resident incompetent who has no parents or lawful guardian; or 4. The Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper. SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts; 2. The incompetency rendering the appointment necessary or convenient; 3. The names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care; 4. The probable value and character of his estate; and 5. The name of the person for whom letters of guardianship are prayed. SECTION 3. COURT TO SET TIME FOR HEARING. NOTICE THEREOF To whom notice served: 1. Persons mentioned in the petition residing in the Philippines;

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2. The incompetent. There is no requirement for publication, only notice except in case of a nonresident incompetent. However, service of notice upon the persons mentioned in the petition, including the incompetent who is not a minor, is mandatory and jurisdictional. If the person is insane, service of notice upon the Director of the Hospital where he is hospitalized is sufficient. SECTION 4. OPPOSITION TO PETITION Must be in writing; need not be verified Grounds: 1. Competency of alleged incompetent; 2. Unsuitability of the person for whom letters are prayed. If the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed guardian of the person and property of the latter. No man can serve two masters (Garchitorena v. Sotelo, G.R. No. L-47867, November 13, 1942). SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE At the hearing: 1. The alleged incompetent must be present if able to attend; 2. It must be shown that the required notice has been given. SECTION 6. WHEN AND HOW GUARDIAN FOR NONRESIDENT APPOINTED, NOTICE Any relative, friend or anyone interested in the estate of a person liable to be put under guardianship may file a petition for guardianship over the property of such person. Notice shall be given through publication or otherwise. Ancillary guardianship Ancillary guardianship refers to the guardianship in a state other than that in which guardianship is originally granted (Herrera, p. 276). SECTION 7. PARENTS AS GUARDIANS This provision may be deemed to have been modified by the provisions of the Family Code on Guardianship particularly Articles 225 and 220 (Herrera, p. 278). SECTION 8. SERVICE OF JUDGMENT Civil Registrar of the place where the minor or incompetent resides or where the property is situated shall be served with a copy of the judgment.

San Beda College of Law 2010 Centralized Bar Operations the payment of a legacy or distributive share to the guardian when there is any express statutory requirement to that effect (Herrera, p.283).

R ULE 94 B ONDS OF G UARDIANS SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS Before an appointed guardian enters upon the execution of his trust, he shall give a bond. Conditions: (IFAP) 1. To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2. To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; 4. To perform all orders of the court by him to be performed. Purpose of the bond: For the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, p. 282). Necessity of the bond: When required by statutes to give a bond, no person can qualify and act as guardian without complying with this condition precedent (Herrera, p. 282). Time when bond takes effect: At the time of appointment notwithstanding the bond being filed later (Herrera, p. 282). SECTION 2. WHEN NEW BOND MAY BE REQUIRED AND OLD SURETIES DISCHARGED A new bond may be required when the guardian is about to receive funds not in contemplation when the original bond was executed and should be given as a condition of

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SECTION 3. BONDS TO BE FILED. ACTIONS THEREON In case of breach of the bond’s conditions, the bond may be prosecuted in the same proceeding or in a separate action, for the use and benefit of the ward or of any person legally interested in the estate. The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Guerrero v. Teran, G.R. No. L-4898, March 19, 1909).

R ULE 95 S ELLING AND E NCUMBERING P ROPERTY OF W ARD SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO SELL OR ENCUMBER ESTATE A. Grounds 1. When the income of estate is insufficient to maintain the ward and his family or; 2. When it appears that it is for the benefit of the ward. B. Requirements 1. Petition must be verified; 2. Notice must be given to the next of kin; and 3. Hearing so that they may show cause why petition should not be granted. Sale of the ward’s realty by the guardian without authority from the court is void. Under the law, a parent acting merely as legal administrator of the property of his/her children does not have the power to dispose of, or alienate, the property of said minor without judicial approval (Lindain v. Court of Appeals, G.R. No. 95305, August 20, 1992). For the sale or encumbrance of the property, a verified petition is required (Sec 1 of this Rule), but no such verification is required for that purpose with respect to the estate of a decedent (Secs 1 and 4, Rule 89) and a mere motion therein will suffice. SECTION 2. ORDER TO SHOW CAUSE THEREUPON The court shall make an order directing the next of kin, and all persons interested in the estate, to show cause why the petition under this Rule must not be granted.

San Beda College of Law 2010 Centralized Bar Operations The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court. Next of Kin Next of kin does not mean the next of kindred but pertains to those relatives who are entitled to share in the estate of the ward under the Law on Intestate Succession including those who inherit per stirpes or by right of representation (Lopez v. Teodoro, Sr., G.R. No. L-3071, May 29, 1950). Note: Notice to next of kin and interested persons is jurisdictional. Failure to notify the next of kin shall be a ground for dismissal of the petition under this Rule (Singco v. Longa, G.R. No. L-27962, February 14, 1928). However, notice is not necessary where the next of kin to the ward and all persons interested in the estate are her mother and guardian, uncles and aunts who agreed to make the transfer of their respective shares in the property to the corporation to be organized (Pardo de Tavera v. El Hogar Filipino, Inc. and Magdalena Estate, G.R. No. L-5893, February 28, 1956). SECTION 3. HEARING ON RETURN OF ORDER. COSTS SECTION 4. CONTENTS OF ORDER FOR SALE OR ENCUMBRANCE, AND HOW LONG EFFECTIVE The order of sale must specify the grounds. General Rule: Sale must first be confirmed by the court, and that until such confirmation, not even equitable title passes (Herrera, p. 289). Exception: The court’s order expressly authorized the guardian to execute and deliver to the purchaser definitely named, a deed of conveyance to a parcel of land specifically described at a price already fixed and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and the buyers, needing only a judicial go-ahead signal to reduce the agreement to the statutory form and it had been made without departure from the terms of the order (Soriano, et. al. v. Latono, G.R. No. L-3408, December 23, 1950). Duration of the order of sale and encumbrance of property: Within 1 year from the granting of the order. It is presumed that if the property was not sold within 1 year, the ward has sufficient income. The guardian, among others, cannot acquire by purchase even at a public or judicial auction, either in person or through the mediation of another, the property of the person or persons who may be under his guardianship (Art. 1491, NCC).

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Appeal is the proper remedy against an order of the court authorizing the sale of the ward’s property (Lopez v. Teodoro, G.R. No. L- 3071, May 29, 1950). Note: There being a presumption that the sale of the ward’s estate is valid, it cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale on the grounds specified by law should be filed (Margate v. Rabacal, G.R. No. L-14302, April 30, 1963). SECTION 5. COURT MAY ORDER INVESTMENT OF PROCEEDS AND DIRECT MANAGEMENT OF ESTATE Sections 1 & 2 of this Rule relate only to the investment of proceeds from the sale or encumbrance of the estate and investment of other funds is covered by Section 5 of this Rule. While Section 5 requires judicial authority in order that a guardian may invest the ward’s money, it does not provide that said authority must always be either prior to or expressed (Philippine Trust Co. v. Ballesteros, G.R. No. L-8532, October 11, 1957).

R ULE 96 G ENERAL P OWERS AND D UTIES OF G UARDIANS SECTION 1. TO WHAT GUARDIANSHIP SHALL EXTEND Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding being solely concerned with the ward’s care and custody and proper administration of his properties (Viloria v. Administrator of Veteran Affairs, G.R. No. L-9620, June 28, 1957). SECTION 2. GUARDIAN TO PAY DEBTS OF WARD Order of liability of ward’s property: 1. Personal estate and income of real estate; 2. Real estate SECTION 3. GUARDIAN TO SETTLE ACCOUNTS, COLLECT DEBTS AND APPEAR IN ACTIONS FOR WARD Ordinarily, a guardian ad litem has no authority to act or bind a minor in any transaction with regard to his estate, but he can, however, do so with the approval of the court, such as the amicable settlement of a case affecting the

San Beda College of Law 2010 Centralized Bar Operations property of the minor, duly approved by the court (Santo Domingo v. Santo Domingo, G.R. No. L-10886, April 18, 1958). SECTION 4. ESTATE TO BE MANAGED FRUGALLY AND PROCEEDS APPLIED TO MAINTENANCE OF WARD The guardian is bound to exercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which results from his failure to exercise such prudence and diligence (Herrera, p. 301).

3. Render a verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons (Sec. 7); 4. To have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be (Sec. 1); 5. Render to court for its approval an accounting of the property for 1 year from his appointment and every year thereafter, and upon application of interested persons (Sec. 8); and 6. Pay the debts of the ward (Sec. 2).

SECTION 5. GUARDIAN MAY BE AUTHORIZED TO JOIN IN PARTITION PROCEEDINGS AFTER HEARING

A guardian, just like a trustee, is prohibited under Article 736 of the Civil Code from making a donation of the properties entrusted to him (Araneta v. Perez, G.R. No. L18872, July 15, 1966).

Requisites: 1. Hearing; 2. Notice to relatives of the ward; and 3. Careful investigation as to the necessity and propriety of the proposed action.

R ULE 97 T ERMINAT ION OF G UARDIANS HIP

SECTION 6. PROCEEDING WHEN PERSON SUSPECTED OF EMBEZZLING OR CONCEALING PROPERTY OF WARD Purpose: To secure evidence from persons suspected of embezzling, concealing or conveying any property of the ward so as to enable the guardian to institute the appropriate action to obtain the possession of and secure title to said property (Cui v. Piccio, G.R. No. L-5131, July 31, 1952). Only in extreme cases where property clearly belongs to the ward or where his title thereto has been already decided, may the court direct its delivery to the guardian (Cui v. Piccio, supra). SECTION 7. INVENTORIES AND ACCOUNTS OF GUARDIANS, AND APPRAISEMENT OF ESTATE SECTION 8. WHEN GUARDIAN’S ACCOUNTS PRESENTED FOR SETTLEMENT, EXPENSES AND COMPENSATION ALLOWED The guardian shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and such compensation for his services, not exceeding 15% of the net income of the ward. General powers and duties of guardians (MSICAP) 1. Manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4); 2. Settle accounts, collect debts and appear in actions for ward (Sec. 3);

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SECTION 1. PETITION THAT COMPETENCY OF WARD BE ADJUDGED, AND PROCEEDINGS THEREUPON Who may file: 1. Person who has been declared incompetent; 2. His guardian; 3. Relative; or 4. Friend. Petition shall be verified by oath and shall state that such person is then competent. Grounds for termination: 1. Competency of the ward has been judicially determined; 2. Guardianship is no longer necessary; 3. Death of guardian; 4. Death of ward. Note: Notice of hearing of the petition is not intended as a personal service process in the sense necessary to give the court jurisdiction over the ward (In Re Guardianship of Incompetent Jose de Inchausti v. Soler, G.R. No. L15119, January 19, 1920). Who may oppose: 1. Guardian; 2. Relative of the ward; or 3. Any other person, in the discretion of the court.

SECTION 2. WHEN GUARDIAN REMOVED OR ALLOWED TO RESIGN. NEW APPOINTMENT

San Beda College of Law 2010 Centralized Bar Operations Grounds for removal of a guardian 1. Insanity; 2. Incapability or unsuitability to discharge functions; 3. Wastage or mismanagement of the property of the ward; and 4. Failure to render an account or make a return within 30 days after it was due. The remedy of a guardian from the order of removal is to appeal (Olarte v. Enriquez, G.R. No. L-16098, October 31, 1960). The guardian may file a petition before the guardianship court for permission to resign is trust, stating the grounds therefore, and accompanied by a report of the state of his account and an offer to settle the account and deliver the estate over the court (Herrera, p. 314). SECTION 3. OTHER TERMINATION OF GUARDIANSHIP Voluntary emancipation under the amendments introduced by R.A. No. 6809, is no longer recognized as a ground for the termination of parental authority or guardianship (Herrera, p. 315). SECTION 4. RECORD TO BE KEPT BY JUSTICE OF THE PEACE OR MUNICIPAL JUDGE

Estate/Intestate Court

Guardianship Court guardian)

R ULE

ON

G UARDIANS HIP M INORS

OF

(A.M. No. 03-02-05-SC, effective May 1, 2003) SECTION 1. APPLICABILITY OF THE RULE The Rule applies to petitions for Guardianship over the person or property, or both of a minor. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship. Who may petition 1. Any relative; or 2. Other person on behalf of a minor; or 3. The minor himself if 14 years of age or over; or 4. The Secretary of Social Welfare and Development; and 5. The Secretary of Health in case of an insane minor who needs to be hospitalized (Sec. 2). Where to file petition: Family Court of the province or the city where the minor actually resides. If he resides in a foreign country, with the Family Court of the Province or city where his property or any part thereof is situated (Sec. 3).

SECTION 5. SERVICE OF JUDGMENT Estate/Intestate Court

Guardianship Court

Rules 73-90

Rules 92-97

Statute of non-claims

No statute of non-claims

Can pass upon the merits of the claim Sale of personal properties first (Rule 89)

Cannot pass upon the merits of the claim Sale of personal or real properties first (Rule 95)

Bond defeats the “petition for authority to Sell”

Bond does not defeat the “Petition for Authority to Sell”

Publication (Rule 89)

Personal notice (Rule 95)

Indefinite effectivity of “authority to sell”

1 year effectivity of “authority to sell”

May appoint a special administrator

No such thing as a special guardian (Remedy: Appeal from order appointing the

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The petition shall be verified and accompanied by a certification of non-forum shopping (Sec.7). Grounds of petition (D SuRe Best) 1. Death, continued absence, or incapacity of his parents; 2. Suspension, termination or deprivation of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; 4. When the best interests of the minor so require (Sec. 4). Considerations in appointing guardians (MP – FRALA) 1. Moral character; 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;

San Beda College of Law 2010 Centralized Bar Operations 7. Ability to manage the property of the minor (Sec. 5). Who may be appointed guardian of the person or property, or both, of a minor: In default of parents or a court-appointed guardian, the court may appoint a guardian of a minor, observing as far as practicable, the following order of preference: (G-BAO) 1. The surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. The oldest brother or sister of the minor over twentyone years of age, unless unfit or disqualified; 3. The actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and 4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6). Contents of petition 1. The jurisdictional facts; 2. The name, age and residence of the prospective ward; 3. The ground rendering the appointment necessary or convenient; 4. The death of the parents of the minor or the termination, deprivation or suspension of their parental authority; 5. The remarriage of the minor’s surviving parent; 6. The names, ages, and residences of relatives within the 4th civil degree of minor, and of persons having him in their care and custody; 7. The probable value, character and location of the property of the minor, and the name, age and residence of the person for whom letters of guardianship are prayed (Sec. 7). Time and notice of hearing: Notice must be given to persons named in the petition and to the minor if over 14 years of age (Sec. 8). Note: Notice to a minor who is above 14 year old is jurisdictional. Non-compliance with this renders the proceedings null and void. Case study report: The court shall order a social worker to conduct a case study of the minor and all prospective guardians and submit his report and recommendation (3 days before hearing) to the court for its guidance before the scheduled hearing (Sec. 9). Opposition to petition: Must be in writing; need not be verified (Sec. 10). Grounds for opposition: 1. Majority of alleged minor; 2. Unsuitability of the person for whom letters are prayed.

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Contents of opposition to the petition 1. Ground relied upon; 2. Prayer that the petition be denied; or 3. Prayer that letters of guardianship issue to himself or to any suitable person named in the opposition. Bond of guardian; amount and conditions: Before the guardian enters upon the execution of his trust or letters of guardianship he may be required to post a bond in the amount set by the court under the following conditions: 1. To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete Inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; 2. To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; 3. To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and 4. To perform all orders of the court and such other duties as may be required by law (Sec. 14). Bond of parents as guardian of the property of the minor: The parents shall post a bond if the market value of the child’s properties or income exceeds PhP50,000 and the bond shall not be less than 10% of the value of the properties or income (Sec. 16). Petition to sell or encumber property Grounds: 1. When the income of estate is insufficient to maintain and educate ward when a minor; or 2. When it appears that it is for the benefit of the ward. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court (Sec.19). Grounds for removal or resignation of guardian Guardian: 1. Becomes insane or otherwise incapable of discharging his trust; 2. Is found thereafter to be unsuitable; 3. Has wasted or mismanaged the property of the ward;

San Beda College of Law 2010 Centralized Bar Operations 4. Has failed to render an account or make a return 30 days after it was due (Sec.24). Note: Before a motion for removal or resignation may be granted under Sec. 24, the guardian must submit the proper accounting of the property of the ward and the court has to approve the same. Grounds for termination of guardianship 1. The ward has come of age; or 2. Has died (Sec. 25). Guardianship’s termination may be motu proprio or by a verified motion by any person allowed to file a petition for guardianship on the grounds of majority and/or death of the ward (in case of death, notify the court within ten (10) days). Incompetents Who Are Not Minors Who may file 1. Any relative; or 1. Any relative; 2. Other person on 2. Friend; or behalf of a minor; or 3. Other person on behalf of 3. The minor himself if 14 the resident incompetent years of age or over; or who has no parents or 4. The Secretary of Social lawful guardian; or Welfare and 4. The Director of Health in Development AND by favor of an insane person 5. The Secretary of Health who should be in case of an insane hospitalized or in favor of minor who needs to be an isolated leper (Sec. 1); hospitalized (Sec.2 AM 5. Anyone interested in the 03-02-05-SC). estate of a non-resident incompetent (Sec. 6). Contents of Petition 1. The jurisdictional facts; 1. The jurisdictional facts; 2. The name, age and 2. The incompetency residence of the rendering the prospective ward; appointment necessary 3. The ground rendering or convenient; the appointment 3. The names, ages, and necessary or residences of the convenient; relatives of the 4. The death of the incompetent, and of parents of the minor or the persons having him the termination, in their care; deprivation or 4. The probable value suspension of their and character of his parental authority; estate; 5. The remarriage of the 5. The name of the minor’s surviving person for whom parent; letters of guardianship 6. The names, ages, and are prayed (Sec. 2

Incompetents Who Are Not Minors Rule 93).

Minor

residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody; 7. The probable value, character and location of the property of the minor; and 8. The name, age and residence of the person for whom letters of guardianship are prayed (Sec. 7, AM 0302-05-SC). Grounds for Termination

Minor

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1. The ward has come of age; or 2. Has died (Sec. 25, AM 03-02-05-SC).

1. Competency of the ward has been judicially determined; 2. Guardianship is no longer necessary; 3. Death of guardian; 4. Death of ward.

Note: The petition involving minors is required to be verified and accompanied by certification against forum shopping while that involving incompetent must be verified only. However, no defect in the petition or verification shall render void the issuance of letters of guardianship.

R ULE 98 T RUSTEES E x e c u t o r / A d m i n i s

Guardian

T r u s t e e

San Beda College of Law 2010 Centralized Bar Operations t r a t o r Accounts are not under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be REQUIRED by the court.

Court that has jurisdiction may be MTC or RTC.

Appointed as guardian.

Appointed to carry into effect the provisions of a will or written instrument (contractual trust).

Not exempted from filing bond even if such exemption is provided in the will (bond is only conditioned upon payment of debts).

Must always file a bond.

May be exempted from filing bond if provided in the will or if beneficiaries requested exemption.

Services of executor or administrator is terminated upon payment of debts of the estate and distribution of property to heirs.

Guardianship is terminated upon attainment of age of majority of the minor or upon gaining competency in the case of an incompetent (need court order for the latter).

Trusteeship is terminated upon turning over the property to beneficiary after expiration of trust (period may be provided for in the will or trust contract).

Must pay the debts of the estate.

Must pay the debts of the ward.

No obligation to pay debts of beneficiary or trustor.

Appointed by the court to settle estate of decedent.

Accounts must be under oath and filed annually.

Accounts must be under oath and filed annually.

Court which has jurisdiction is RTC (incompetent) or Family Court (minors).

Court which has jurisdiction is RTC or MTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee.

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (upon application to the court with written notice to the heirs).

May sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate ward or the sale or encumbrance is for the benefit of ward upon order of the court.

Order of sale has no time limit.

Order of sale is valid for only 1 year after grant of the same.

Procedure for appointment of trustees under Rule 98 Allowance of the instrument creating the trust (Probate of will) May sell or encumber property of estate held in trust if necessary or expedient upon order of the court.

Petition by the executor/ administrator or the person appointed as trustee in the instrument Appointment of the trustee by the court Notice to all interested persons Filing of bond by the trustee

Order of sale has no time limit.

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SECTION 1. WHERE TRUSTEE APPOINTED

San Beda College of Law 2010 Centralized Bar Operations Jurisdiction: The RTC or MTC in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the RTC of the province in which the property, or some portion thereof, affected by the trust, is situated. A trustee is necessary to carry into effect: 1. A will creating a trust but the testator omitted to appoint a trustee in the Philippines (Testamentary Trust); and 2. Other written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust (Contractual Trust). Note: This rule applies only to express trusts and not to implied trusts which arise by operation of law (Regalado, p. 153). SECTION 2. APPOINTMENT AND POWERS OF TRUSTEE UNDER WILL. EXECUTOR OF FORMER TRUSTEE NEED NOT ADMINISTER TRUST No person succeeding to the trust as executor or administrator of a former trustee shall be required to accept such trust. Note: Notice to and consent of the beneficiary are not essential for the creation of the trust (De Leon v. MoloPeckson, G.R. No. L-17809, December 29, 1962). The trustee to be appointed shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. SECTION 3. APPOINTMENT AND POWERS OF NEW TRUSTEE UNDER A WRITTEN INSTRUMENT When a new trustee appointed: When a trustee under a written instrument declines, resigns, dies or is removed before the objects of the trust are accomplished and no adequate provision is made in such instrument supplying the vacancy. SECTION 4. PROCEEDINGS WHERE TRUSTEE APPOINTED ABROAD When land in the Philippines is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the RTC where the land is situated, otherwise, the trust will be vacant and a new trustee will be appointed.

However, he may be exempted from bond when requested by: 1. Testator; 2. All persons beneficially interested in the trust. Nonetheless, the court may cancel such exemption anytime. SECTION 6. CONDITIONS INCLUDED IN BOND (ASIM) 1. That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; 2. That at the expiration of his trust he will 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; 3. That the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 4. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed. When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed. SECTION 7. APPRAISAL. COMPENSATION OF TRUSTEE The compensation of the trustee is that which is provided by the instrument creating the trust. Otherwise, it shall be fixed by the court. SECTION 8. REMOVAL OR RESIGNATION OF TRUSTEE Requisites: 1. Petition filed by parties beneficially interested; 2. Notice to trustee; and 3. Hearing. Who may petition: Parties beneficially interested.

When a trust is created abroad for property in the Philippines, judicial approval is still needed though the trustor is alive. SECTION 5. TRUSTEE MUST FILE BOND Neglect of trustees to file a bond will be interpreted by the court as resignation or a decline to accept the trust.

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Grounds: 1. Removal appears essential in the interest of petitioners; 2. Insanity; 3. Incapability of discharging trust; 4. Unsuitability.

San Beda College of Law 2010 Centralized Bar Operations A trustee is at liberty to tender his resignation and apply for his release on the sole ground of unwillingness to act further in the trust. But the acceptance of the resignation of a trustee is not a matter of course; due regard must be had for the interest of the parties to be affected and there must ordinarily be some ground for discharge other than the mere wish of the trustee to be relieved (Herrera, p. 459). Note: The trustee is prohibited from acquiring the property whether by purchase, even in a public or judicial action, either in person or through the mediation of another. (Art. 1491, NCC) SECTION 9. PROCEEDINGS FOR SALE OR ENCUMBRANCE OF TRUST ESTATE The Rules on Sale and Encumbrance of Trust Estate shall conform as nearly as may be to the provisions on Sale and Encumbrance by Guardians.

A DOPTION Preliminary Considerations Note: The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and the Inter-country Adoption Act of 1995. Sec. 6 of Rule 99 was already amended by Administrative Circular No. 03-04-04 while Sec. 7 of Rule 99 was amended by Administrative Circular No. 02-1-19-SC. Effective August 22, 2002, there is a new Rule on Adoption (Section 33, Administrative Matter No. 02-6-02SC). Nature and concept of adoption: Adoption is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (Herrera, p. 317). Only an adoption made in pursuance with the procedures laid down under A.M. No. 02-6-02-SC Rules on Domestic and Inter-Country Adoption is valid in this jurisdiction. Adoption is not an adversarial proceeding. There is no particular defendant since the proceeding involves the status of a person it being an action in rem (Herrera, p. 324). Purpose of adoption: The promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective (Daoang v, Court of Appeals, G.R. No. L-34568, March 28, 1988).

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Adoption is strictly personal between the adopter and the adopted (Teotico v. Del Val, G.R. No. L-18753, March 26, 1956). Adoption is a privilege, not innate or fundamental, but rather a right created by statute. It is a privilege which is governed by the state’s determination of what is for the best welfare of the child (Lahum v. Sibulo, G.R. No. 143989, July 14, 2003). Financial capacity: While petitioner claims that she has the financial support and backing of her children and siblings, the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter (Landingin v. Republic of the Philippines, G.R. No. 164948, 27 June 2006). Note: When a foreigner who is married to Filipino citizen seeks to adopt jointly with his/her spouse as relative within the fourth civil degree of consanguinity or affinity of the Filipino spouse, the Domestic Adoption Act shall apply. Construction of adoption statutes: All the sections are designed to protect the “best interests” of the adoptee (Herrera, p. 346). Adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law (Malkinsons v. Agrava, G.R. No. L-36309, November 26, 1973). Subsequent laws 1. P.D. No. 603, otherwise known as Child and Youth Welfare Code, which expressly repealed all the Civil Code provisions on Adoption, as amended by Executive Order No. 91; 2. R.A. No. 8043 on Inter Country Adoption; 3. Family Code of the Philippines which repealed the substantive provisions of P.D. No. 603 and E.O. No. 91;

San Beda College of Law 2010 Centralized Bar Operations 4. Family Courts Act of 1997 establising Family Courts vested with exclusive and original jurisdiction over adoption cases; 5. R.A. No. 8552 otherwise known as Domestic Adoption Act; and 6. Implementing rules promulgated by the Supreme Court: a. A.M. No. 02-1-19-SC Re: Proposed Rule on Commitment of Children Effective April 15, 2002; b. A.M. No. 02-6-02-SC Rule on Domestic and InterCountry Adoption Effective August 22, 2002; and c. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors Effective May 15, 2003.

R ULES

ON D OMESTIC A DOPTION (Secs. 1-25, A.M. No. 02-6-02)

Procedure for Domestic Adoption under AM-02-6-02SC Petition for Domestic Adoption Order of Hearing by the court Child and Home Study Reports by the Social Worker Hearing on the Petition for Adoption Supervised Trial Custody Adoption Decree issued by the court Who may adopt (Sec.4) A.Any Filipino Citizen – 1. Of legal age; 2. In possession of full civil capacity and legal rights; 3. Of good moral character; 4. Has not been convicted of any crime involving moral turpitude; 5. Emotionally and psychologically capable of caring for children;

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6. At least 16 years older than the adoptee. Except: when the adopter is the adoptee’s biological parent or the spouse of the adoptee’s parent; and 7. In a position to support and care for his/her children in keeping with the means of the family. B.Any alien possessing the same qualifications as above, Provided: 1. That his country has diplomatic relations with the Philippines; 2. That he has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption; 3. Maintains residence until the adoption decree is entered; 4. Certified by his diplomatic or consular office or any appropriate government agency to have legal capacity to adopt by his country; and 5. That his government allows the adoptee to enter his country as his adopted child. The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: a. A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or b. One who seeks to adopt the legitimate child of his Filipino spouse; or c. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. C.The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Who may be adopted (Sec. 5) 1. Any person below 18 years of age who has been judicially declared available for adoption or voluntarily committed to DSWD; 2. The legitimate child of one spouse, by the other spouse; 3. An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; 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 since minority; 5. A child whose adoption has been previously rescinded; 6. A child whose biological or adoptive parents have died, but no proceedings shall be initiated within 6 months from the time of death of said parents; 7. A child not otherwise disqualified by law or these rules. “A child legally available for adoption” It refers to a child who has been voluntarily or involuntarily committed to the DSWD or to a duly licensed and

San Beda College of Law 2010 Centralized Bar Operations accredited child-placing or child caring agency, freed of the parental authority of his biological parents, or in case or rescission of adoption, his guardian or adopter/s (Sec. 3). Two ways to commit a child 1. Administrative/Voluntary: In this case, the parent or guardian of the child voluntarily committed him to the DSWD or any duly licensed child placement or child caring agency. The child must be surrendered in writing. Such written instrument must be notarized and signed in the presence of an authorized representative of the department after counseling has been made to encourage the parents to keep the child (Sec. 5, AM 02-1-19-SC). 2. Judicial/Involuntary: Follow the procedure in Proposed Rule on Commitment of Children (AM 02-119-SC) under special laws. Joint adoption of spouses General rule: Husband and wife shall jointly adopt (Art. 185, Family Code). Exceptions: 1. If one spouse seeks to adopt the legitimate child of the other; 2. If one spouse seeks to adopt his own illegitimate son/daughter, provided that the other spouse has signified his consent thereto; 3. If the spouses are legally separated from each other (Sec. 4, A.M. 02-6-02-SC). This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level if illegitimate child, it is but natural to require both the spouses to adopt jointly (Republic v. Toledano, G.R. No. 9447, June 8, 1994). Venue (Sec.6) Family Court where the prospective adoptive parents reside. Contents of the petition (Sec.7) A. If the adopter is a Filipino citizen, the petition shall allege the following: 1. The jurisdictional facts; 2. That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least 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; and is in a

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position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of R.A. No. 8552. B. If the adopter is an alien, the petition shall allege the following: 1. The jurisdictional facts; 2. Sub-paragraph A.2 above; 3. That his country has diplomatic relations with the Republic of the Philippines; 4. That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and 5. That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered. The requirements of certification of the alien’s qualification to adopt in his country and of residency may be waived if the alien: a. Is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or b. Seeks to adopt the legitimate child of his Filipino spouse; or c. Is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse. C. If the adopter is the legal guardian of the adoptee: The petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. D. If the adopter is married, the spouse shall be a copetitioner for joint adoption except if: 1. One spouse seeks to adopt the legitimate child of the other; or 2. One spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or 3. The spouses are legally separated from each other. E. If the adoptee is a foundling: The petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage. F. If the petition prays for a change of name: It shall also state the cause or reason for the change of name.

San Beda College of Law 2010 Centralized Bar Operations All petitions shall allege: 1. The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records; 2. That the adoptee is not disqualified by law to be adopted; 3. The probable value and character of the estate of the adoptee; 4. The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. The petition shall be verified with a certificate of nonforum shopping and specifically state at the heading of the initiatory pleading whether the petition contains an application for a change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. Rectification of simulated birth It shall allege that: 1. Petitioner is applying for rectification of a simulated birth; 2. The simulation of birth was made prior to the date of effectivity of R.A. No. 8552, and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; 3. The petitioner made the simulation of birth for the best interests of the adoptee; and 4. The adoptee has been consistently considered and treated by petitioner as his own child (Sec.8).

obligations of care and support, which parents owe their children” (Cang v. Court of Appeals, G.R. No. 105308, September 25, 1998). Change of name: The present Rule on Domestic Adoption allows the petition to include an application for change of name (Sec. 10). The title or caption must contain; 1. The registered name of the child; 2. Aliases or other names by which the child has been known; and 3. The full name by which the child is to be known. Annexes to the petition A.Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; B.Affidavit of consent of the following: 1. The adoptee, if 10 years of age or over; 2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, childcaring agency, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are 10 years of age or over; 4. The illegitimate children of the adopter living with him who are 10 years of age or over; and 5. The spouse, if any, of the adopter or adoptee

(Sec.11).

Adoption of a foundling, an abandoned, dependent or neglected child The petition shall allege: 1. The facts showing that the child is a foundling, abandoned, dependent or neglected; 2. The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any; 3. The name of the duly licensed child-placement agency or individual under whose care the child is in custody; and 4. That the Department, child-placement or child-caring agency is authorized to give its consent (Sec. 9). Abandonment In its ordinary sense, it means to forsake entirely, to renounce utterly (Herrera, p. 351).

Parental consent Parental consent required by law in adoption refers to parents who have not abandoned their child. Accordingly, one whom such child was given by his mother, who does not wish to be identified, is considered the guardian of the child and can give valid consent to the child’s adoption, as said child is considered as abandoned (Duncan v. CFI Rizal, G.R. No. L-30576, February 10, 1976).

In reference to abandonment of a child by his parent, the act of abandonment imports “any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.” It means “neglect or refusal to perform the natural and legal

C.Child study report on the adoptee and his biological parents;

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Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child or that such parent is insane or hopelessly intemperate, provided that sufficient facts are alleged in the petition in order to warrant exemption (Cang v. Court of Appeals, supra).

D.If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government

San Beda College of Law 2010 Centralized Bar Operations agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); E.Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and F.Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. Procedure A. Order of hearing 1. It must be published at least once a week for 3 successive weeks; 2. At the discretion of the court, copies of the order of hearing shall be furnished to the office of the Solicitor General. Through the provincial or city prosecutor, the DSWD and the biological parents of the adoptee, if known; 3. If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory; 4. If the petition and attachments are sufficient in form and substance, the court shall issue an order (Sec.12). Contents of order 1. Adoptee’s registered name in the birth certificate, and the names by which the adoptee has been known (to be stated in the caption); 2. Petition’s purpose; 3. Complete name which the adoptee will use if the petition is granted; 4. Hearing’s date and place of hearing (within 6 months from the date of the order’s issuance) 5. Directive to the social worker to prepare and submit child and home study reports before the hearing, if such reports were not attached to the petition due to unavailability at the time of the filing; and 6. Directive to the social worker to conduct counseling sessions with the biological parents and to submit a report before the hearing (Sec. 12). The necessary jurisdictional requirements should be indicated in the petition for adoption. Thus, the name of the person to be adopted is that appearing in the civil registry and the court does not acquire jurisdiction if a different name is carried in the notice of publication (Cruz v. Republic of the Philippines, G.R. No. L-20927, July 26, 1966).

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Role of the Solicitor General: When the petition includes a prayer for change of name, notice to the Solicitor General is mandatory to protect the interests of the State. On other matters, the courts are given discretion to decide whether such notice should be given (Herrera, p. 347). B. Child & Home Study Reports – The social worker verifies with the Civil Registry the real identity and the name of adoptee and the fact that he is legally available for adoption. If the adoptee’s birth was not registered, the social worker shall register the adoptee and secure a certificate of foundling or late registration (Sec.13). The social worker may make recommendations to the court if he finds some grounds to deny the petition. The social worker shall establish: 1. The child is legally available for adoption; 2. The documents in support thereof are valid and authentic; 3. The adopter has sincere intentions towards the adoptee; 4. The adoption shall inure to the best interests of the child. In case of alien adopter, the home study report must show: 1. Adopter’s legal capacity to adopt; 2. His government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Sec. 7(b), R.A. No. 8552. C. Hearing – Hearing is to be held within 6 months from the date of issuance of the order (Sec.14). Except: In case of application for change of name which hearing must not be within 4 months after last publication nor within 30 days prior to election. The petitioner and the adoptee must personally appear and the former must testify in court. D. Supervised Trial Custody (STC) – Before issuance of decree of adoption the court shall give the adopter trial custody of the adoptee for at least 6 months (Sec.15). Ratio: In order for the parties to adjust psychologically and emotionally with each other and to establish a bonding relationship.

San Beda College of Law 2010 Centralized Bar Operations Note: Court may reduce or exempt parties from Supervised Trial Custody, if it finds that the same shall be for the best interest of the adoptee. The trial custody shall be monitored by the social worker who submitted and prepared the case studies. General rule: Alien adopter must complete the 6 months Supervised Trial Custody. Exception: Same as exemptions from requirements of residency and certification: 1. A former Filipino citizen who seeks to adopt a relative within the 4th degree; 2. One who seeks to adopt the legitimate child of his Filipino spouse; 3. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse the latter’s relative within the 4th degree. Temporary Parental Authority: It is provisionally vested in the adopting parents during the period of trial custody, before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period (Herrera, p. 356). However, where the trial custody had not begun or had already been completed at the time of quasi-delict committed by a child to be adopted, the adopting parents cannot assume any liability therefor. The natural parents should be joined as indispensable parties to the suit for damages (Tamargo v. Court of Appeals, G.R. No. 8044, June 3, 1992). If the child to be adopted is below 7 years of age and is placed with the prospective adopter through a DSWD preadoption placement authority, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. The social worker shall submit to the court a report on the result of the trial custody within 2 weeks after its termination. E. Decree of adoption – If the court is convinced from the trial custody report and the evidence presented, that the adoption shall redound to the best interest of the child, an adoption decree shall be issued (Sec.16). The decree of adoption shall take effect as of the date of filing of the original petition. Contents of the adoption decree 1. The name by which the child is to be known;

2. Order to the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 155-day reglementary period within which to appeal; 3. Order to the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within 30 days from receipt of the certificate of finality; 4. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated; 5. Order the Civil Registrar: a. To annotate on the adoptee’s original birth certificate the decree of adoption within 30 days from receipt of certificate of finality; b. To issue new birth certificate which shall not bear any notation that it is new or amended certificate which shall allow: registry number, date of registration, name of child, sex, date of birth, place of birth, name and citizenship of adoptive parents and the date and place of their marriage, if applicable; c. To seal the original birth certificate in the civil registry records which can be opened only upon the order of the court which issued the decree of adoption; d. To submit to the court issuing the decree of adoption proof of compliance with all the foregoing within 30 days from date of receipt of the decree. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. An amended birth certificate shall be issued. The original birth certificate shall be stamped “cancelled” and shall be sealed in the Civil Registry records. Book of adoptions: All matters relative to adoption and all incidents arising after the issuance of the decree shall be recorded in the book of adoption kept by the clerk of court of the Family Court (Sec. 17). Confidentiality of proceedings and records General Rule: After compliance with jurisdictional requirements, all adoption hearings shall be confidential and shall not be open to the public. All related records shall be kept strictly confidential (Sec. 18). Exception: For security reasons or for the best interest of the child, the Court may, upon meritorious grounds allow the release of the information with restrictions, if necessary (Herrera, p. 348). Effects of adoption

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San Beda College of Law 2010 Centralized Bar Operations 1. Adopter will exercise parental authority; 2. All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter; 3. Adoptee shall be considered legitimate child of adopter for all intents and purposes; 4. Adopters shall have reciprocal rights of succession without distinction from legitimate filiation. The decree of adoption shall have a retroactive effect from the time of the petition. “It is a settled rule that adoption statutes, being human and salutary, should be liberally construed to carry out the beneficent purposes of adoption. x x x. Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, x x x, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so” (In Re: Adoption of Stephanie Nathy Garcia, G.R. No. 148311, March 31, 2005). Who may rescind the adoption? The adopter cannot rescind the adoption, only the adoptee may rescind within 5 years from reaching the age of majority or after recovery from incompetency. Such a petition for rescission shall be filed in the Family Court where the adoptee resides. In case of a minor, he shall be assisted by a social work from DSWD or by the minor’s guardian, if he is over 18 years of age but is incapacitated. The adopter may not rescind the adoption; however, he may disinherit the adopted child (Art. 919, Civil Code). Grounds for rescission (Sec. 19) 1. Repeated physical and verbal maltreatment despite having undergone counseling; 2. Attempt on the adoptee’s life; 3. Sexual assault or violence; 4. Abandonment or failure to comply with parental obligations. Order to answer: The court shall order the adverse party to file an answer within 15 days from the receipt thereof (Sec. 22). Judgment: If the court finds that the petition’s allegations are true, it shall order the rescission of adoption (Sec. 23). The court shall order that:

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1. The biological parents’ parental authority, or the DSWD’s legal custody, shall be restored if the adoptee is still a minor or incapacitated; 2. The reciprocal rights and obligations of the adopter and the adoptee shall be extinguished; 3. The successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected; 4. The adoptee shall use the name stated in his original birth/foundling certificate; 5. The Civil Registrar where the adoption decree was registered shall cancel the new birth certificate of the adoptee and reinstate his original birth/foundling certificate. Service of judgment – A certified true copy of the judgment and a certificate of finality shall be served by the petitioner upon the Civil Registrar within 30 days from receipt of the certificate of finality. The Civil Registrar shall enter the rescission decree in the register and submit proof of compliance to the court within 30 days from receipt of the decree (Sec. 24).

I NTER -C OUNTRY A DOPTION Objectives 1. To consider inter-country adoption as an alternative means of child care, if the child cannot be placed in a foster/adoptive family or cannot be cared for in the Philippines; 2. To ensure that the child enjoys the same protection accorded to children in domestic adoption; 3. To ensure that the placement does not result in improper financial gain for those involved (Sec. 27). Where to file petition 1. 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; 2. It may be filed directly with the Inter-Country Adoption Board (Sec. 28). Who may adopt: 1. Any alien or Filipino citizen permanently residing abroad who is at least twenty-seven (27) years of age; 2. Other requirements are the same as with R.A. No. 8552.

San Beda College of Law 2010 Centralized Bar Operations Who may be adopted: Only a child legally available for domestic adoption may be the subject of inter-country adoption (Sec.29). A child under the Inter-Country Adoption Act is defined as any person below fifteen (15) years of age. The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child (Section 7, R.A. No. 8043). Contents of petition Petitioner must allege: 1. His age and the age of the child to be adopted, showing that he is 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, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply; 2. If married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse; 3. That he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country; 4. That he has not been convicted of a crime involving moral turpitude; 5. That he is eligible to adopt under his national law; 6. That he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted; 7. That he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of R.A. No. 8043; 8. That he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; and 9. That he possesses all the qualifications and none of the disqualifications provided in this Rule, in R.A. No. 8043 and in all other applicable Philippine laws (Sec. 30). Annexes : The following must be in writing and officially translated in English: 1. Birth certificate of petitioner; 2. Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage;

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3. Sworn statement of consent of petitioner’s biological or adopted children above ten (10) years of age; 4. Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; 5. Income tax returns or any authentic document showing the current financial capability of the petitioner; 6. Police clearance of petitioner issued within six (6) months before the filing of the petitioner; 7. Character reference from the local church/minister, the petitioner’s employer and a member of the immediate community who have known the petitioner for at least five (5) years; 8. Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition (Sec.31). Note: Items (5) to (7) are not applicable in a domestic adoption. Functions of the RTC: The Regional Trial Court, after finding the petition (in case of foreigners who file a petition for adoption in the Philippines under the Domestic Adoption Act of 1998 otherwise known as RA 8552) to be sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the Board for appropriate action (Sec. 30 of Amended Implementing Rules And Regulations On InterCountry Adoption or R.A. No. 8043). An adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the Philippines. The effects of such adoption shall be governed by the law of the Philippines (Marcaida v. Aglubat, G.R. No. L-24006, November 25, 1967). “Best interest of the minor” standard “Best interest of the minor” standard refers 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 (Sec. 14 A.M. No. 03-04-04-SC 2003-04-22). Domestic Adoption

Inter-Country Adoption

Judicial Adoption R.A. No. 8552 (Domestic Adoption Act) amended Arts. 183-193 of the Family Code and is the governing law for Filipino citizens adopting other Filipinos

Extrajudicial Adoption R.A. No. 8043 (InterCountry Adoption Act) governs the adoption of Filipinos by foreigners, and is implemented by the InterCountry Adoption Board.

San Beda College of Law 2010 Centralized Bar Operations Domestic Adoption (whether relatives or strangers) with some exceptions.

Inter-Country Adoption

Procedure governed by Procedure governed by Amended Implementing A.M. No. 02-06-02-SC. Rules and Regulations on Inter Country Adoption Act Rescission of adoption is approved January 8, 2004. no longer allowed under R.A. No. 8552. Definition of a Child A person below 15 years of “Child” is a person below age unless sooner 18 years of age. emancipated by law. Who may Adopt a. Any Filipino citizen; An alien or a Filipino citizen b. Any alien possessing the permanently residing abroad same qualifications for may file an application for Filipino nationals; inter-country adoption of a c. Guardian with respect to Filipino child. the ward Qualifications Filipino Citizen 1. At least 27 years of age 1. Legal age; and at least 16 years 2. In possession of full civil older than the adoptee at capacity and legal rights; the time of the application 3. Good moral character; for adoption unless the 4. Has not been convicted adopter is the parent by of any crime involving nature of the child to be moral turpitude; adopted or the spouse of 5. Emotionally and such parent; psychologically capable 2. If married, his/her spouse of caring for children; must jointly file for the and adoption; 6. At least 16 years older 3. Has the capacity to act than the adoptee and assume all rights and (waived when the responsibilities of parental adopter is the biological authority under his parent of the adoptee, or national laws, and has is the spouse of the undergone the adoptee’s parent) appropriate counseling from an accredited Alien counselor in his/her 1. Same as the country; qualifications for Filipino 4. Has not been convicted of citizens; a crime involving moral 2. His/her country has turpitude diplomatic relations with 5. Eligible to adopt under the Philippines; his/her national law; 3. He/she has been living 6. In a position to provide in the Philippines for at the proper care and least 3 continuous years support and to give the prior to the filing of the necessary moral values

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Domestic Adoption Inter-Country Adoption application for adoption and example to all his and maintains such children, including the residence until the child to be adopted; adoption decree is 7. Agrees to uphold the entered; basic rights of the child as 4. He/she has been embodied under certified by his/her Philippine laws, the UN diplomatic or consular Convention on the Rights office or any appropriate of the Child, and to abide government agency that by the rules and he/she has the legal regulations issued to capacity to adopt in implement the provisions his/her country; and of this Act; 5. His/her government 8. Comes from a country allows the adoptee to with whom the Philippines enter his/her country as has diplomatic relations his/her adopted and whose government son/daughter maintains a similarly authorized and accredited Residency and certification agency and that adoption of the alien’s qualification is allowed under his/her to adopt may be waived on national laws; any of the following: 9. Possesses all the 1. A former Filipino citizen qualifications and none of who seeks to adopt a the disqualifications relative within the 4th civil provided herein and in degree of consanguinity other applicable Philippine or affinity; laws. 2. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; 3. If one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, that the other spouse has signified his/her consent thereto; or 4. If the spouse are legally separated from each other In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. Guardian

San Beda College of Law 2010 Centralized Bar Operations Domestic Adoption Inter-Country Adoption Only after the termination of the guardianship and clearance of his/her financial accountabilities Who may be adopted 1. Any person below 18 years of age who has been administratively or judicially declared available for adoption; 2. Legitimate son/daughter of one spouse by the other spouse 3. Illegitimate child by a qualified adopter to improve his/her status to that of legitimacy; 4. A person of legal age if, prior to the adoption, Only a legally free child may said person has been be the subject of interconsistently considered country adoption. and treated by the adopter(s) as his/her own child since minority; 5. A child whose adoption has been previously rescinded; or 6. A child whose biological or adoptive parent(s) has died: Provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s). Where to file application Family Court of the place RTC (Family Court) having where the adopter resides the jurisdiction over the child, or with the InterAfter filing: The petition Country Adoption Board, shall not be set for hearing through an intermediate without a case study report agency, whether by a licensed social governmental or an worker. authorized and accredited agency, in the country of the prospective adoptive parents. After filing: (a) if filed in the Family Court, it shall determine the sufficiency of petition in respect to form and substance, if sufficient, the petition is transmitted to

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Domestic Adoption

Inter-Country Adoption Inter-Country Adoption Board; (b) if petition is filed with Inter-Country Adoption Board, it shall conduct the matching of the applicant with an adoptive child; (c) after matchmaking, the child is personally fetched by the applicant for the trial custody which takes place in the foreign country where the adopter resides. What Petition for Adoption may include 1. Prayer for change of name; 2. Ratification of simulated birth; Only petition for adoption 3. Declaration that the child is a foundling, abandoned, dependent or neglected child. Annexes Income tax returns, police Income tax returns, police clearance, character clearance, character reference, family picture, reference, family picture, birth certificate of the birth certificate of the adopter are not required to adopter are required to be be annexed in the petition annexed in the petition Publication Petition must be published at least once a week for 3 successive weeks in a newspaper of general No publication requirement circulation in the province or city where the court is situated Supervised Trial Custody Supervised trial custody Supervised trial custody in period in the Philippines for the country of adopter for at least 6 months (Court at least 6 months and is may reduce period or mandatory before a decree exempt parties from trial of adoption is issued custody). (expenses are borne by the adopter). If unsuccessful, the Board shall look for another prospective applicant. Repatriation of the child is to be resorted only as a last resort; If successful, the Board shall transmit a written consent for the

San Beda College of Law 2010 Centralized Bar Operations Domestic Adoption

Inter-Country Adoption adoption to be executed by the DSWD, and the applicant then files a petition for adoption in his/her country. Decree of Adoption Issued by the Family Court having jurisdiction over the Issued by a foreign court case. Penalties Any government official, employee or functionary who shall be found guilty of violating any of the Same provisions of this adoption laws shall automatically suffer suspension until the resolution of the case

R ESCISSION

OF

A DOPTION

Under the domestic adoption act of 1998, the adopter can no longer rescind the adoption. He can merely disinherit the adoptee in accordance with the provisions of the Civil Code (Art. 919, Civil Code). Rescission relates only as to the date of the judgment. Hence, vested rights prior to rescission should be respected (Sec. 20, Art. VI, R.A. No. 8552). Applicability: The grounds for revocation of an adoption refer only to an adoption validly decreed, not to an adoption void from the beginning because tainted with fraud (Ragudo v. Pasno, G.R. No. L-16642, April 18, 1962). Who files: 1. Adoptee a. Over 18 years of age; or b. If still a minor with assistance of DSWD. 2. Guardian or counsel, if over 18 but incapacitated (Sec.19). Grounds for rescission (PASA) 1. Repeated physical violence and verbal maltreatment by the adopter despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment or failure to comply with parental obligations (Sec.19).

Venue: Family Court of the city or province where the adoptee resides (Sec.20). Note: Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption. A subsequent petition for revocation of adoption is neither a continuation of nor an incident in the proceedings for adoption but an entirely new proceeding. It would appear that this petition may be filed in a court other than the court which issued the adoption (De la Cruz v. De la Cruz, L-19391, 29 September 1964). Period within which to file verified petition (Sec.21): Within 5 YEARS from reaching the age of majority or after recovery from incompetency. Adverse party shall file his answer within 15 days from receipt of order of court requiring him to answer (Sec. 22). The court does not have jurisdiction to annul after the period fixed by the Rule, a decree of adoption. For reasons of public order, judicial litigations must have an end; hence, decisions must not be changed after the expiration of the period, it being beyond the jurisdiction or control of courts (Dayrit v. Piccio, G.R. No. L-7858, October 26, 1955). Effects of Judgment of Rescission (PReVS-NC) 1. Parental authority of biological parent or legal custody of DSWD will be restored; 2. Reciprocal rights of adoptee and adopter will be extinguished; 3. Vested rights acquired prior to judicial rescission shall be respected; 4. Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission; 5. Adoptee shall use the name stated in his original birth or foundling certificate; 6. Civil registrar will reinstate his original birth or foundling certificate. Agreement between the adopter and adopted: A subsequent agreement between them nor between adopter and natural parents cannot by itself effectuate the revocation of adoption (Herrera, p. 442). Collateral attack on the validity of adoption: The settled rule is that a finding that the requisite jurisdictional fact exists, whether erroneous or not, cannot be questioned in a collateral proceeding, for a presumption arises in such cases where the validity of the judgment is thus attacked that the necessary jurisdictional facts were proven (Herrera, p. 442).

R ULE 101 P ROCEEDINGS

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FOR H OSPIT ALIZAT ION OF I NS ANE P ERSONS

San Beda College of Law 2010 Centralized Bar Operations Requisites: 1. Director of Health is of the opinion that the commitment of the person alleged to be insane is for public welfare or for the welfare of said person; 2. Such person or the one having charge of him is opposed to his being taken to a hospital or asylum. Procedure for the Hospitalization of Insane Persons SECTION 2. ORDER FOR HEARING 1. The court shall fix a date and place for hearing where all concerned may appear to contest the petition; 2. Copies of the notice of hearing shall be served upon: a. The person alleged to be insane; and b. The one having charge of him, or on such of his relatives residing in the province/city as the judge may deem proper. 3. The court shall order the sheriff to produce the alleged insane person (if possible) on the date of hearing; 4. Upon satisfactory proof that the commitment is necessary and that his relatives are unable to take proper custody and care of him, the court shall order his commitment in a hospital/asylum; 5. The court shall make proper provisions for the custody of the ward’s property until a guardian is properly appointed.

Petition for commitment filed in RTC Court order fixing the date and place for hearing and ordering the Sheriff to produce the alleged insane person in the hearing

Service of Notice of the Court Order to the alleged insane person and to the person who has custody of him/her Hearing on the Petition Judgment granting/denying the Petition Application of the rule: The rule is applicable only when the hospitalization of the insane person is for the public welfare or for the welfare of said person, who in the judgment of the Director of Health, is insane, provided that the one who has charge of him is opposed to such confinement (Herrera. P. 462). Hospitalization of the Insane (Rule 101) For the protection of protecting the community at large and in the nature of police regulations (Herrera, p. 463).

Guardianship (Rules 92-97) For the purpose of protecting the person and the estate of the insane (Herrera, p. 463).

SECTION 1. VENUE. PETITION FOR COMMITMENT Venue: RTC of province where the person alleged to be insane is found. Who files: Director of Health with the assistance of city or provincial prosecutor. Insanity A condition of the mind which is so impaired in function or so deranged as to induce a deviation from normal conduct on the person so afflicted.

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Right of the insane person to notice and hearing: Ordinarily, the person whose liberty is sought to be restrained is entitled by law to proper notice to such proceeding and by force of statute other persons may be entitled to notice. While it has been held that want of notice does not render the proceedings invalid and that the commitment is not subject to collateral attack, it has also been held that want of notice renders the proceeding void or at least, is good ground for vacating the order of commitment (Herrera, p. 464). SECTION 3. HEARING AND JUDGMENT Burden of proof: In all actions and proceedings, the burden of proving insanity is on the plaintiff who alleges it; but where it is set up as an affirmative defense, the burden of proving rests on the defendant. Estate of the insane person: Pending an appeal from the judgment declaring a person to be insane, the trial court has jurisdiction to order a third party to appear and show cause why the property of the insane should not be delivered to the guardian. It is the duty of the court to protect the property of the insane pending the appeal (Mercader v. Wislizenus, G.R. No. L-11739, August 25, 1916). SECTION 4. DISCHARGE OF INSANE

San Beda College of Law 2010 Centralized Bar Operations Director of Health may file this petition in the RTC which ordered the commitment, when he is of the opinion that the person is permanently or temporarily cured or may be released without danger. The Health Secretary cannot order release without the approval of the RTC. On the other hand, the RTC cannot order release without recommendation from the Health Secretary (Chin Ah Foo v. Concepcion, G.R. No. L-33281, March 31, 1930). SECTION 5. ASSISTANCE OF FISCAL IN THE PROCEEDING

R ULE 102 H ABEAS C ORPUS Certiorari, Prohibition and Mandamus Special Civil Action (Rule 65) It reaches the record but not the body; concerned with errors committed by a court. Direct attack. Failure of respondent to file comment will not be punished by contempt and will not even be declared in default.

Habeas Corpus Special Proceeding It reaches the body but not the record; inquiry on the legality of the detention. Collateral attack. Failure to constitutes (indirect).

file

return contempt

Court and prevailing party Respondent is the detainer. are named as respondents. Kinds of Writ of Habeas Corpus 1. Preliminary citation – If the person is detained under governmental authority theconfinement illegality of his Petition alleging theand illegal or detention is not patent from the petition for the writ, the court detention. issues the citation to the government officer having custody to show cause why the writ of habeas corpus Issuance the writ by the court having jurisdiction. should notofissue. 2. Peremptory writ – If the cause of the detention appears to be patently illegal. Noncompliance with this of the writ by leaving the original with the isService punishable. person to whom it is directed and preserving a copy on which to make return of service. Procedure for the Issuance of the Writ of Habeas Corpus under Rule 102 Hearing by the court. Recommitment, bail or discharge of the detained person. Execution of the writ by delivering the body of the person detained to the court and return of service. 53

SECTION 1. TO WHAT HABEAS CORPUS EXTENDS 1. Cases of illegal confinement or detention by which a person is deprived of his liberty; and 2. Cases by which the rightful custody of the person is withheld from the person entitled thereto. Note: Actual physical restraint is not required; any restraint which will prejudice freedom of action is sufficient (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986). Writ of Habeas Corpus A writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000). The function of the special proceeding of habeas corpus is to inquire into the legality of one’s detention. In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner’s detention – from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and “only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has been satisfied (Bernarte v. Court of Appeals, G.R. No. 107741. October 18, 1996). When availed of (As a consequence of a judicial proceeding): 1. There has been a deprivation of a constitutional right resulting in the restraint of a person;

San Beda College of Law 2010 Centralized Bar Operations 2. The court had no jurisdiction to impose the sentence; 3. An excessive penalty has been imposed, as such sentence is void as to such excess; 4. Where the law is amended, as when the penalty is lowered. Obtain freedom after serving minimum sentence when the penalty under an old law has been reduced by an amendatory law (Cruz v. Director of Prisons, G.R. No. L-6497, November 3, 1910); 5. Denial of right to a speedy trial (since it is jurisdictional); 6. Where the results of post-conviction DNA testing are favorable to the convict. 7. Enable the parents to regain custody of a minor child, even if the latter be in the custody of a third person of her own free will (Salvaña v. Gaela, G.R. No. L-341155, February 21, 1931); 8. In determining the constitutionality of a statute (People of the Philippines v. Vera, G.R. No. L-45685, November 16,1937); 9. When testing the legality of an alien‘s confinement and proposed expulsion from the Philippines (Lao Tang Bun v. Fabre, G.R. No. L-1673, October 22, 1948); 10.In permitting an alien to land in the Philippines (Lim Cheng v. Insular Collector of Customs, G.R. No. 16406, September 13, 1920); 11.In determining the legality of an extradition (United States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425, December 6, 1886). Nature of the petition: Petition for habeas corpus, which is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is like a proceeding in rem. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant (Alimpoos v. Court of Appeals, G.R. No. L27331, July 30, 1981). 1. It is not in the nature of a writ of error; nor intended as substitute for the trial court’s function. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. 2. It cannot take the place of appeal, certiorari or writ of error. 3. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void. 4. The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances. 5. Habeas corpus should not be granted in advance of trial. 6. Habeas corpus is a summary remedy. 7. The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who

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holds him in what is alleged to be the unlawful authority. Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty. The writ may be denied if the petitioner fails to show facts that he is entitled thereto ex merito justicias. 8. A writ of habeas corpus, which is regarded as a “palladium of liberty” is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court. It is, however, a writ of right on proper formalities being made by proof. Resort to the writ is not to inquire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from the illegal restraint. Purpose: The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986). The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint (Castriciones v. Chief of Staff of Armed forces of the Philippines, G.R. No. 65731, September 28, 1989). The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. And any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty (Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919). Grounds for suspension of the privilege of the writ of habeas corpus under the Constitution 1. Invasion, when public safety requires it; 2. Rebellion, when public safety requires it (Article VII, Section 18 of the 1987 Constitution)

In cases of illegal confinement or detention General rule: The release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. Exception: When there are restraints attached to his release which precludes freedom of action, in which case the court can still inquire into the nature of his involuntary

San Beda College of Law 2010 Centralized Bar Operations restraint (Villavicencio v. 14639, March 25, 1919).

Lukban,

G.R.

No.

L-

In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No. 166682, November 27, 2009), the Court held that the mere production of child in the habeas corpus case does not warrant outright dismissal. A trial to determine who had rightful custody over the child should be conducted by the court. Voluntary Restraint General Rule: Writ not available if restraint is voluntary (Kelly v. Director of Prisons, G.R. No. L-20478, March 14, 1923). Exception: Writ will lie to enable the parents (or person having substituted parental authority) to recover custody of a minor child although she is in custody of a 3 rd person on her own volition (Tijing v. Court of Appeals, G.R. No. 125901, March 8, 2001). Note: Voluntariness is viewed from the point of view of the person entitled to custody. When petition for habeas corpus not proper: 1. For asserting or vindicating denial of right to bail; 2. For correcting errors in appreciation facts/appreciation of law.

of

Whether the petition for the writ of habeas corpus may be properly filed together with the petition for certiorari and mandamus: The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review (Galvez v. Court of Appeals, G.R. No. 114046, October 24, 1994). SECTION 2. WHO MAY GRANT THE WRIT The RTC, CA, and SC have concurrent jurisdiction to issue writs of habeas corpus. The MTC, by virtue of special jurisdiction under B.P. Blg. 129, can issue the writ in case there is no available RTC judge. Hierarchy of courts is not observed. The writ issued by the RTC is enforceable within its territorial jurisdiction. While the writ issued by CA or Sc is enforceable anywhere in the Philippines. The Sandiganbayan may issue writs of habeas corpus only if it is in aid of its appellate jurisdiction.

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This provision is another exception to the rule that processes of the Regional Trial Court are enforceable throughout the Philippines (Regalado, p. 176). Family Courts have exclusive jurisdiction to issue writs of habeas corpus involving custody of minors. The use of habeas corpus, not a petition for mandamus, to test the legality of an alien’s detention and proposed deportation from the Philippines is a settled practice because aside from being thorough and complete, it affords prompt relief from unlawful imprisonment (Bisschop v. Galang, G.R. No. L-18365, May 31, 1963). A petition for habeas corpus cannot be granted if the accused has only served the minimum of his sentence as he must serve his sentence up to its maximum term (Office of the Court Administrator v. Judge Perello, A.M. No. RTJ-05-1953, 24 December 2008). Scope of effectivity Collegiate Court Enforceable throughout the Philippines. Returnable to any court.

RTC Enforceable only within their respective judicial region. Returnable only to itself.

Jurisdiction in cases of habeas corpus with respect to custody of minors: Although the Family Court where the petitioner resides or where the minor may be found has exclusive and original jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the Supreme Court and the Court of Appeals can take cognizance of such petition in order that it can be enforceable within the Philippines. However, the return can be heard in the FC/RTC (if there is no FC in the judicial region) and there is no need to file a separate petition for custody because the issue can be ventilated in the petition for the writ.

SECTION 3. THEREFOR

REQUISITES

FOR

APPLICATION

Who may apply: 1. Party for whose relief it is intended; or 2. Some person on his behalf. Verified petition must set forth: 1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty;

San Beda College of Law 2010 Centralized Bar Operations 2. The name of the person detaining another; 3. The place where he is imprisoned or restrained of his liberty; 4. The cause of his detention; 5. The verified petition must be signed.

necessarily a bar to challenge the validity of the arrest (Sec. 26, Rule 114).

Note: The formalities required for petitions for habeas corpus must be construed liberally. Strict compliance with the technical requirements for a habeas corpus petition may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus (Fletcher v. Director of Bureau of Corrections, UDK-14071, July 17, 2009).

Procedure for grant of writ: (VACS RH) 1. Verified petition signed by the party for whose relief it is intended; or by some other person in his behalf; 2. Allowance of writ; 3. Command officer to produce; 4. Service of writ by sheriff or other officer; 5. Return; and 6. Hearing on return.

The petition for the writ is required to be verified but the defect in form will not be fatal. In fact, the Supreme Court has held that it is the duty of a court to issue the writ if there is evidence that a person is unjustly restrained of his liberty within jurisdiction even if there is no application (Villavicencio v. Lukban, supra). It is necessary, however, that the person in whose behalf the petition is filed is under actual and effective restraint or deprivation of liberty (Gonzales v. Viola, G.R. No. L43195, August 23, 1935). SECTION 4. WHEN WRIT NOT ALLOWED OR DISCHARGED AUTHORIZED (JUCIT) 1. If jurisdiction appears after the writ is allowed; 2. If the person is in the custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment or make the order; 3. If the person is charged with or convicted of an offense in the Philippines; 4. If the person is suffering imprisonment under lawful judgment. 5. Three (3)-day detention of a suspect for three (3) days without charge (Sec. 18, Ra No. 9372 “Human Security Act of 2007” to take effect on July 14, 2007). Supervening events may bar release: Even if the arrest of a person is illegal, supervening events may bar release or discharge from custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events such as the instances mentioned in Sec. 4, be no longer illegal at the time of the filing of the application (Velasco v. Court of Appeals, G.R. No. 118644, July 7, 1995). Note: Posting of bail is not a waiver. Under the Revised Rules on Criminal Procedure, as application for bail is not

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SECTION 5. WHEN WRIT MUST BE GRANTED AND ISSUED

General Rule: If it appears that the writ should issue, the clerk of court issues the writ under the court’s seal (Sec. 5, Rule 102). Exception: In emergency cases, the judge may issue the writ under his own hand and deputize any person to serve it. The law even makes it the duty of the court to grant the writ of habeas corpus, if there is evidence that a person is unjustly restrained within the court’s jurisdiction, though no application for the writ was made (Villavicencio v. Lukban, G.R. No. L-14639, March 25,1919). SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT TO REQUIRE A.In case of imprisonment or restraint by an officer: 1. The writ shall be directed to him; 2. The officer shall produce the body of the person before the court. 3. State the cause of detention and prove his authority. B.In case of imprisonment or restraint by a person not an officer: 1. The writ shall be directed to an officer; 2. The officer shall take and produce the body of the person before the court; 3. The officer shall summon the person detaining another to appear before the court to show the cause of the imprisonment or restraint. SECTION 7. HOW PRISONER DESIGNATED AND WRIT SERVED How service is made: 1. By leaving the original of the writ with the person to whom it is directed or to any person having custody if the former cannot be found or has not the person in his custody; and 2. By preserving a copy on which to make return of service.

San Beda College of Law 2010 Centralized Bar Operations The writ itself plays the role of summons in ordinary actions; court acquires jurisdiction over the person of the respondent by mere service of writ. SECTION 8. HOW WRIT EXECUTED AND RETURNED General rule: Officer to whom writ is directed shall convey the detained person on the day specified in the writ: 1. Before the judge who allowed the writ; 2. If he is absent, before any judge of the same court. Exception: If the person to be produced has sickness or infirmity such that he cannot be brought before the court without danger. Officer shall: 1. Convey the person so imprisoned before the judge, unless from sickness or infirmity, such person cannot, without danger be brought before the court. 2. Make the return of the writ together with the day and the cause of caption or restraint. SECTION 9. DEFECT OF FORM No writ can be disobeyed for defect of form if it sufficiently states: 1. The person in whose custody or under whose restraint the party imprisoned or restraint is held; and 2. The court or judge before whom he is to be brought. SECTION 10. CONTENTS OF RETURN 1. Whether he has or has not the party in his custody or power, or under restraint; 2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; 3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; 4. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. SECTION 11. RETURN TO BE SIGNED AND SWORN TO SECTION 12. ADJOURNMENTS

HEARING

OF

RETURN.

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1. His remedy, upon the return of the writ, the court must immediately hear the case. 2. The hearing MAY be adjourned by the court for good causes, provided that conditions upon the safekeeping of the detained person is laid. 3. If the detained person cannot be produced before the court, the officer of person detaining must satisfy the court of the gravity of the alleged sickness or infirmity. 4. During the hearing, the court shall disregard matters of form and technicalities of the authority or order of commitment. The failure of petitioners to file a reply to the return of the writ warrants the dismissal of the petition because unless controverted, the allegations on the return are deemed to be true or admitted (Florendo v. Javier, G.R. No. L-36101, June 29, 1979). SECTION 13. WHEN THE RETURN EVIDENCE, AND WHEN ONLY A PLEA If detention is by public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. As per Rule 131 on legal presumption that the duty of a public officer is regularly performed. If detention is by reason of private authority, the return is considered only a plea of the facts asserted therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and justified. SECTION 14. WHEN PERSON LAWFULLY IMPRISONED RECOMMITTED, AND WHEN LET TO BAIL Habeas corpus would not lie after the Warrant of Commitment was issued by the court on the basis of the Information filed against the accused (Ilagan v. Enrile, G.R. No. 70748, October 21, 1985). Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. Would be to quash the information and/or the warrant of arrest duly issued. The term “court” includes quasi-judicial bodies of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration (Go v. Ramos, G.R. No. 167569, 4 September 2009). If the offense is punishable by death, the person lawfully detained shall not be released, discharged or bailed. If the offense is not punishable by death, he MAY be recommitted to imprisonment of admitted to bail in the discretion of the court or judge (Sec. 14, Rule 102).

San Beda College of Law 2010 Centralized Bar Operations SECTION 15. WHEN PRISONER DISCHARGED IF NO APPEAL If one is unlawfully imprisoned, the court shall order his discharge but it shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the person detaining him does not appeal, the prisoner shall be released. Period of appeal: Within 48 hours from notice of the judgment or final order appealed from (Sec. 3, Rule 41). Form of appeal is by notice of appeal. The release contemplated under the writ of habeas corpus is one which is free from any involuntary restraint. When the person so released continues to be denied of one or more of his constitutional freedoms, where there is present denial of due process, or where the restraints are not merely involuntary but appear to be unnecessary, the person concerned or those acting in his behalf may still avail themselves again of the privilege of the writ. (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986). SECTION 16. PENALTY FOR REFUSING TO ISSUE WRIT, OR FOR DISOBEYING THE SAME A penalty of PhP1,000 and may be punished for contempt. Punishable acts or omissions 1. The Clerk of Court refuses to issue the writ after allowance by the court and demand; 2. The person directed in the writ: a. Neglects or refuses to obey or make the return; b. Makes a false return; c. Refuses to deliver a true copy of the warrant/order of commitment, within 6 hours after demand (Sec. 16). 3. Imprisoning a person set at liberty by the writ, for the same offense (Sec. 17). 4. Removing a prisoner from one custody to another (Sec. 18). SECTION 17. PERSON DISCHARGED NOT TO BE AGAIN IMPRISONED General Rule: A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense. Exception: He is imprisoned by virtue of lawful order or process of court having jurisdiction of the offense or cause. Whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense:

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Ruling: Such a reservation is repugnant to the principle that the government is one of laws and not of men. Under this principle, the moment a person is acquitted of a criminal charge he can no longer be detained or rearrested for the same offense (Toyoto v. Ramos, G.R. No. L-69270 October 15, 1985). SECTION 18. WHEN PRISONER MAY BE REMOVED FROM ONE CUSTODY TO ANOTHER 1. By legal process; 2. Prisoner is delivered to an inferior officer to carry to jail; 3. By order of proper court or judge directing that he be removed from one place to another within the Philippines for trial; 4. In case of fire, epidemic, insurrection or other necessity or public calamity. SECTION 19. RECORD OF WRIT, FEES AND COSTS

R ULE ON C USTODY OF M INORS AND W RIT OF H ABEAS C ORPUS IN R ELATION TO THE C USTODY OF M INORS (A.M. No. 03-04-04-SC) Who may file the petition: A verified petition for the rightful custody of a minor may be filed by any person claiming such right (Sec.2). Where to file petition: Family Court of the province or city where the petitioner resides or where the minor may be found (Sec.3). The petition may however be filed with the regular court in the absence of the presiding judge of the Family Court, provided however that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the SC, CA, or with any of its members and, if so granted the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Contents of verified petition (P-NOS) 1. The personal circumstances of the petitioner and respondent;

San Beda College of Law 2010 Centralized Bar Operations 2. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and respondent; 3. The material operative facts constituting deprivation of custody; 4. Such other matters which are relevant to the custody of minor (Sec.4). In Sombong v. Court of Appeals, et al. (G.R. No. 111876, January 31, 1996), the Court laid down the following requisites in petitions for habeas corpus involving minors: 1. That the petitioner has the right of custody over the minor; 2. That the rightful custody of the minor is being withheld from the petitioner by the respondent; and 3. That it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; 4. The eldest brother or sister over twenty one (21) years of age unless he or she is unfit or disqualified; 5. The actual custodian of the minor over twenty one (21) years of age, unless the former is unfit or disqualified; or 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor (Sec.13). Temporary visitation rights: The court shall provide in its order awarding provisional custody appropriate visitation rights to the non - custodial parent or parents unless the court finds said parent or parents unfit or disqualified (Sec.15). Hold Departure Order: The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending.

Motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or the parties (Sec.6).

The Court, motu proprio or upon application under oath, may issue an ex parte hold departure order (Sec.16).

Respondent must file a verified answer within 5 days from the service of summons and copy of the petition (Sec.7).

Note: The court may also issue a Protection Order (Sec.17).

Pre-trial is mandatory (Sec.9).

Appeal : Notice of appeal within 15 days from notice of denial of motion for reconsideration or new trial (Sec.19).

Effects of failure to appear at the pre-trial 1. If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner; 2. If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex-parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented (Sec. 11). Failure to file the pre-trial brief or to comply with its required content shall have the same effect as failure to appear at the pre-trial (Sec. 10). Provisional order awarding custody: As far as practicable, the following order of preference shall be observed in the award of custody: (BEG BAO) 1. Both parents jointly; 2. Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment unless the parent chosen is unfit; 3. The grandparent or if there are several grandparents, the grandparent chosen by the minor over seven years

Note: No appeal shall be allowed unless a motion for reconsideration or new trial has been filed. Petition for Writ of Habeas Corpus Shall be enforceable within its judicial region to which the Family Court belongs (Sec. 20).

R ULE

ON

W RIT

A MPARO

(A.M. No. 07-9-12-SC, September 25, 2007) Writ of Amparo 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 covers extralegal killings and enforced disappearances or threats thereof (applicable in pending cases due to the remedial nature of the writ). Extralegal Killings Killings committed without due process of law (e.g. salvage, summary and arbitrary executions). Enforced Disappearances

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San Beda College of Law 2010 Centralized Bar Operations Arrest, detention or abduction of a person by a government officer or organized groups or private individuals acting with direct or indirect acquiescence of the government; refusal of the state to disclose the fate or whereabouts of the person concerned or refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. 1. Writ of Amparo (“to protect”) – originated in Mexico; 2. Amparo Libertad – for the protection of personal freedom equivalent to Habeas Corpus writ; 3. Amparo Contra Leyes – for judicial review of constitutionality of statutes; 4. Amparo Casacion – for judicial review of constitutionality and legality of judicial decisions; 5. Amparo Administrativo – for judicial review of administrative actions; and 6. Amparo Agrario – protection of peasant’s rights derived from agrarian reform process (Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008). Limited to life, liberty and security because there are other enforced remedies. Broad enough to encompass both actual and threatened violation of human rights. Who may file (order of preference): 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. Filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions.

2. With the Sandiganbayan, Court of Appeals, the Supreme Court or any justice of such courts. This writ shall be enforceable anywhere in the Philippines. Note: Basically similar to the Rule on petitions for the writ of habeas corpus. It is, however, different because it includes the Sandiganbayan for the reason that public officials and employees will be respondents in amparo petitions. Contents of the verified petition 1. Personal circumstances of the petitioner and of respondent responsible for the threat, act or omission; 2. Violated or threatened right to life, liberty or security of the party aggrieved. Stating in detail the circumstances; 3. Specify the names, personal circumstances of the investigating authority or individuals, as well as the manner and conduct of investigation; 4. Actions and recourses taken by the petitioner to determine the whereabouts of aggrieved party and identity of the person responsible for the threat, act or omission; 5. The relief prayed for; 6. A general prayer for other just and equitable reliefs may be included (Sec. 5). Where returnable; enforceable 1. When issued by the RTC or an judge thereof, the writ is returnable before such court or judge; 2. When issued by the Sandiganbayan, Court of Appeals or any of their justices, it may be returnable to such court or any justice thereof, or to any RTC where the threat, act or omission was committed or any of its elements occurred; 3. When issued by the Supreme Court or any of its justices, it may be returnable to such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any RTC in the place where the threat, act or omission was committed or any of its elements took place (Sec.3).

Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein (Sec. 2).

Note: Due to the extraordinary nature of the writ, which protects the mother of all rights –the right to life – the petition may be filed on any day, including Saturdays, Sundays and holidays; and at any time, from morning until evening.

Ratio: To prevent the indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party.

No docket fees Ratio: The enforcement of these sacrosanct rights should not be frustrated by lack of finances.

Where to file: 1. Regional Trial Court where the threat, act or omission was committed or any of its elements occurred;

Issuance of the Writ: Upon the filing of the petition, the court, justice or judge shall immediately order the

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San Beda College of Law 2010 Centralized Bar Operations issuance of the writ if on its face it ought to issue. The writ shall be served immediately. The writ should set the date and time for a summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance (Sec. 13). Punishment for refusal to issue writ: Contempt without prejudice to other disciplinary actions (Sec. 16). Return The Return serves as the responsive pleading to the petition. Unlike an Answer, the Return has other purposes aside from identifying the issues in the case. Respondents are also required to detail the actions they had taken to determine the fate or whereabouts of the aggrieved party (De Lima v. Gatdula, G.R. No. 204528, February 19, 2013). Contents of return 1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; 2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; 3. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and 4. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. To verify the identity of the aggrieved party; b. To recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible. c. To identify witnesses and obtain statements from them concerning the death or disappearance; d. To determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. To identify and apprehend the person or persons involved in the death or disappearance; and f. To bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

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Respondent shall file a verified written return together with supporting affidavits within 72 hours after service of the writ. The period to file a return cannot be extended except on highly meritorious grounds (Sec. 9). No general denial – the policy is to require revelation of all evidence relevant to the petition. Avoids the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. Omnibus waiver rule The respondent must plead all his defenses in the return. Failure to do so shall operate as a waiver of such defenses not therein pleaded (Sec. 10). Prohibited pleadings and motions 1. Motion to dismiss; 2. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10.Memorandum; 11.Motion for reconsideration of interlocutory orders or interim relief orders; and 12.Petition for certiorari, mandamus or prohibition against any interlocutory order (Sec. 11). The filing of motion for new trial and petition for relief from judgment are allowed because denial of these remedies may jeopardize the rights of the aggrieved party. (Annotation to the Writ of Amparo). Effect of failure to file return: The court, justice or judge shall hear the petition ex parte. Procedure for hearing: The hearing shall be summary, but the judge may call a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be held on a daily basis until completed and is given the same priority as that of petitions for writ of habeas corpus. Interim reliefs available to petitioner (TIP) 1. Temporary protection order – The court, justice or judge, upon motion or motu proprio, may order that the

San Beda College of Law 2010 Centralized Bar Operations petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. 2. Inspection order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. 3. Production order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. Interim reliefs available to the respondent: Upon verified motion of the respondent and after due hearing, the court, justice or judge 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. Burden of proof and standard of diligence required: Parties shall establish their claims by substantial evidence.

Appeal: Within 5 days to appeal to the SC under Rule 45 and may raise questions of fact or law or both (Sec. 19). Ratio: Amparo proceedings involve determination of facts considering its subject–extralegal killings and enforced disappearances. Judgment subject to appeal via Rule 45 If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. The judgment should contain measures, which the judge views as essential for the continued protection of the petitioner in the Amparo case. These measures must be detailed enough so that the judge may be able to verify and monitor the actions taken by the respondents. Is it this judgment that could be subject to appeal to the Supreme Court via Rule 45 (De Lima v. Gatdula, G.R. No. 204528, February 19, 2013). The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The prvilege includes availment of the entire procedure outlined in AM No. 07-9-12-SC (De Lima v. Gatdula, G.R. No. 204528, February 19, 2013). Archiving and revival of cases: The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives (Liberalized rule on dismissal). The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case (Sec. 20).

If respondent is a private individual or entity, must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. If a public official or employee, extraordinary diligence is required.

Institution of separate actions: Filing of a petition for the writ of amparo shall not preclude the filing of separate criminal, civil or administrative actions (Sec. 21).

Presumption of regularity in the performance of official duty cannot be invoked which is in accord with current jurisprudence on custodial interrogation and search warrant cases.

Effect of filing of a criminal action: When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under the Rule on the Writ of Amparo shall govern the disposition of reliefs available under the writ Sec. 22).

There is no need to show that petitioner has exhausted prior administrative remedies. Judgment: The court shall render judgment within ten (10) days from the time the petition is submitted for decision. No enforcement of 5 days like in Habeas Data (Sec. 18).

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Consolidation: When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall

San Beda College of Law 2010 Centralized Bar Operations continue to apply to the disposition of the reliefs in the petition (Sec. 23). Doctrine of command responsibility in amparo proceedings: It would be inappropriate to apply to these proceedings the doctrine of command responsibility, as a form of criminal complicity through omission, for the criminal liability is beyond the reach of amparo. It does not determine guilt nor pinpoint criminal culpability for the disappearance, threats thereof or extrajudicial killings; it determines responsibility, or at least accountability, for the enforced disappearance, threats thereof or extrajudicial killings for purposes of imposing the appropriate remedies to address the disappearance or extrajudicial killings. If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance or harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo (Rubrico, et al. v. Macapagal-Arroyo, et al., G.R. No. 183871, February 18, 2010). Note: The writ of amparo, in its present form, is confined only to these two instances of “extralegal killings” and enforced disappearances” (Rev. Fr. Reyes v. Court of Appeals, et al., G.R. No. 182161, December 3, 2009). It is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation (Navia v. Pardico, G.R. No. 184467, June 19, 2012). It is not a writ to protect concerns that are purely property or commercial (Tapuz, et al. v. Judge Del Rosario, G.R. No. 182484, June 17, 2008).

R ULE

ON

(A.M. No. 08-1-16-SC, January 22, 2008) (Effectivity: February 2, 2008) Writ of Habeas Data 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 (Sec. 1). The writ in general is designed to safeguard individual freedom from abuse in the information age by means of an individual complaint presented in a constitutional court. Specifically, it protects the image, privacy, honor, information, self determination, and freedom of information of a person (The Philippine Supreme Court’s Bulletin, Benchmark Online November 2007). Habeas data vis-à-vis amparo: Habeas data essentially allows families of victims of enforced disappearance to petition the courts to compel government and security officials to allow access to documents about the missing person. While amparo denies state officials the defense of denial with which they normally evade petitions for habeas corpus that families of missing persons file, and compels them instead to exert efforts to find these missing persons or face sanctions (Festin, p.213). Note: The writ of habeas data cannot be invoked in labor disputes where there is no unlawful violation of the right to life, liberty, or security (Meralco v. Lim, G.R. No. 184769, October 5, 2010). Habeas data cannot be invoked when respondents in the petition for issuance of the writ are not gathering, collecting, or storing data or information (Castillo v. Cruz, G.R. No. 182165, November 25, 2009). Who may file: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: 1. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or 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 (Sec. 2). Note: Unlike in amparo, human rights organizations or institutions are no longer allowed to file the petition.

W RIT OF H ABEAS D ATA

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San Beda College of Law 2010 Centralized Bar Operations Where to file: 1. 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. 2. Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices (Sec. 3). Where returnable: When issued by: 1. The RTC or any judge thereof – returnable before such court or judge 2. CA or the Sandiganbayan or any of its justices – before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. 3. SC or any of its justices – before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored (Sec. 4). Note: The writ of habeas data shall be enforceable anywhere in the Philippines. Docket Fees: No docket and other lawful fees shall be required from an indigent petitioner (Sec. 5). Note: A petition for a writ of habeas data must be verified. Contents of the petition (P-MALRO) 1. Personal circumstances of the petitioner and respondent; 2. The manner the right of privacy is violated or threatened; 3. Actions and recourses taken by petitioner to secure the date or information; 4. Location of the files, registers or database, the government office, person in charge, in possession and control of the data, if known; 5. Reliefs prayed for; and 6. Other relevant reliefs as are just & equitable (Sec. 6). Issuance of the writ: Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. Clerk of court (COC) shall issue the writ under the seal of the court and cause it to be served within three (3) days

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from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it (COC’s refusal to issue the writ: Contempt without prejudice to other disciplinary actions) (Secs. 7 & 11). The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) working days from the date of its issuance (Sec. 16). Return: Respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons (General Denial of the allegations in the petition is not allowed) (Sec. 17). Contents of return: The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others, 2. In case of respondent in charge, possession or control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection. b. The steps of actions taken by the respondent to ensure the security and confidentiality of the data or information, c. The currency and accuracy of the data or information held. 3. Other allegations relevant to the resolution of the proceeding (Sec. 10). 1.

Effect of failure to file a return: The court shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence (Sec. 14). Note: Making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court shall be punished by contempt (Sec. 11). Defenses available to respondent 1. National security; 2. State secrets; 3. Privileged communications;

San Beda College of Law 2010 Centralized Bar Operations 4. Confidentiality of the source of information of media and others (Sec. 12). Note: Hearing in chambers may be conducted where the respondent invokes the abovementioned defenses (Sec. 12). Prohibited pleadings and motions 1. Motion to dismiss; 2. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10.Memorandum; 11.Motion for reconsideration of interlocutory orders or interim relief orders; and 12.Petition for certiorari, mandamus or prohibition against any interlocutory order. (Sec. 13)

Hearing Summary but the judge may call a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. When a court may hear the petition in chambers Where the respondent invokes the defense that: 1. The release of the data or information in question shall compromise national security or state secrets; or 2. The data or information cannot be divulged to the public due to its nature or privileged character. Judgment: Court to render 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 shall enjoin 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 shall be denied. Upon its finality, judgment enforced within five (5) working days. Grant of the writ vs. Grant of the privilege of the writ: The grant of the writ refers to the decision of the court to give due course to the petition, require respondents to file their return and set the petition for hearing. The grant of

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the privilege of the writ means that the petition is found meritorious, the prayers therein are granted and the petitioner is granted the relief sought. Return of service: The officer who executed the judgment shall, within 3 days from its enforcement, make a verified return to the court. Contents of the return of service 1. Full statement of the proceedings under the writ; and 2. Complete inventory of the database or information, or documents or articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. 3. Statement by the officer how the judgment was enforced and complied with by the respondent; and 4. All the objections of the parties regarding the manner and regularity of the service of the writ (Sec. 17). Hearing on officer’s return: The court shall set the date with due notice to the parties Appeal: Within five (5) days to appeal to the SC under Rule 45 and may raise questions of fact or law or both. Institution of separate actions: Filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions (Sec. 20). Consolidation: 1. When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. 2. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data (Sec. 21).

San Beda College of Law 2010 Centralized Bar Operations See Comparative Chart of Habeas Corpus, Writ of Amparo and Habeas Data on Page 270

The RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. A change of name is a proceeding in rem. Jurisdiction to hear and determine the petition for change of name is acquired after due publication of the order containing certain data (Secan Kok v. Republic of the Philippines, supra).

R ULE 103 C HANGE OF N AM E Procedure for Change of Name under Rule 103 Petition for Change of Name Court order fixing the date and place of hearing Publication of the court order fixing the date and place of hearing, at least once a week for 3 successive weeks in a newspaper of general circulation Hearing on the Petition Judgment granting / denying the change of name. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same

Applicability of Rule 103 An alien can petition for a change of name but he must be domiciled in the Philippines (Ong Huan Tin v. Republic of the Philippines, G.R. No. L-20997, April 27, 1967). The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that by which the person is known in the community (Ng Yao Siong v. Republic of the Philippines, G.R. No. L20306, March 31, 1966). Legal separation is not a ground for the female spouse for a change of name under Rule 103 (Laperal v. Republic of the Philippines, G.R. No. L-18008, October 30, 1962). A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children (Secan Kok v. Republic of the Philippines, G.R. No. L-27621, August 30, 1973). Sex reassignment is not a valid ground to change one’s first name (applies to both Rule 103 and R.A. No. 9048) (Silverio v. Republic of the Philippines, G.R. No. 174689, October 22, 2007). SECTION 1. VENUE

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The State has an interest in the names borne by individuals and entries for purposes of identification, and that a change of name is a privilege and not a right, so that before a person can be authorized to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change (In Re: Julian Lin Carulasan Wang v. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005). SECTION 2. CONTENTS OF PETITION 1. That petitioner is a bona fide resident of the province where petition is filed for at least three years prior to the date of filing; 2. Cause for change of name; 3. Name asked for; 4. All names by which petitioner is known (Secan Kok v. Republic of the Philippines, supra). The petition shall be signed and verified by the person desiring his name changed or some other person in his behalf. Requirement of verification is a formal, and not a jurisdictional requisite. It is not a ground for dismissing petition. Under Rule 103, the word “person” is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in the petition (Yu v. Republic of the Philippines, G.R. No. L-20874, May 25, 1966). All of the applicant’s aliases must be stated in the petition’s title. Otherwise, it would be a fatal defect (Go Chiu Beng v. Republic of the Philippines, G.R. No. L29574, August 18, 1972). Jurisdictional requirements 1. The verified petition should be published for three successive weeks in some newspaper of general circulation in the province; 2. Both the title or caption of the petition and its body shall recite:

San Beda College of Law 2010 Centralized Bar Operations a. b.

Name/names or aliases of the applicant; Cause for which the change of name is sought;

c.

New name asked for (Secan Kok v. Republic of the Philippines, supra.).

Petition should be filed by applicant upon reaching the age of majority (Regalado, p. 191). Ratio: A change of name is a matter of public interest (Secan Kok v. Republic of the Philippines, supra). SECTION 3. ORDER FOR HEARING Hearing shall not be within 30 days prior to an election nor within 4 months after the last publication of notice of hearing. The court shall promulgate an order: 1. Recital of the purpose of the petition; 2. Fix the date and place of hearing; and 3. Direct that a copy of the order be published before the hearing for once a week for three consecutive weeks in a newspaper of general circulation. Effect of discrepancy in the petition and published order: The defect in the petition and the order, as to the spelling of the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings (Tan v. Republic of the Philippines, G.R. No. L-16384, April 26, 1962). Grounds for change of name (R-CHEN) 1. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. Consequence of a change of status; e.g. legitimated child; 3. Habitual and continuous use and has been known since childhood by a Filipino name, unaware of her alien parentage; 4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; or 5. Necessity to avoid confusion; Title of petition must contain the following: 1. Official name (birth certificate) – be very particular with the spelling because it may avoid or annul the proceedings; it is jurisdictional; 2. All aliases; and 3. Name asked for.

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Note: All the names or aliases must appear in the title or caption of the petition, because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him (Secan Kok v. Republic of the Philippines, supra). The non-inclusion of all the names or aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the required publication (Republic of the Philippines v. Zosa, G.R. No. L-48762, September 12, 1988). SECTION 4. HEARING Who may oppose the petition 1. Any interested person; 2. The Republic of the Philippines through the Solicitor General or the proper provincial or city prosecutor. SECTION 5. JUDGMENT A change of name granted by the court affects only the petitioner. A separate petition for change of name must be filed for his wife or children (Secan Kok v. Republic of the Philippines, supra). A decree of adoption grants the adoptee the right to use the adopter’s surname, if change of first name is so desired, it must be prayed and alleged in the petition for adoption (Sec. 16, A.M. No. 02-6-02-SC).

SECTION 6. SERVICE OF JUDGMENT Civil Registrar of the city or municipality where the court is situated shall be furnished with a copy of the judgment. Consequence of a grant to change name: A mere change of name would not cause a change in one’s existing family relations, nor create new family rights and duties where none exists before. Neither would it affect a person’s legal capacity, civil status or citizenship. What would be altered is the word or group of words by which he is identified and distinguished from the rest of his fellow men (Ang Chay v. Republic of the Philippines, G.R. No. L28507, July 31, 1970). Note: When the marriage ties or vinculum no longer exists as in the case of death of a husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as the use of her former husband’s name is optional and not obligatory for her. Neither is she required to secure judicial authority to use the surname of her husband after the

San Beda College of Law 2010 Centralized Bar Operations marriage as no law requires it (Yasin v. Shari’a District Court, G.R. No. 94986, 23 February 1995).

R ULE 104 V OLUNT ARY D ISSOLUTION C ORPORATIONS

OF

Note: Dissolution of corporations should now be filed with the Securities and Exchange Commission and is covered by Title XIV, Sections 117 to 122 of the Corporation Code of the Philippines. A.M. No. 00-11-03-SC, promulgated on November 21, 2000, designated some RTC branches nationwide (also known as Corporate courts) to try and decide SEC cases enumerated under Sec. 5 of P.D. 902-A.

1. Open and continuous possession of status of a legitimate child; or 2. Any other means allowed by the Rules of Court and other special laws (Gono-Javier v. Court of Appeals, G.R. No. 111994, December 29, 1994). Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.

R ULE 105 J UDICIAL A PPROV AL OF VOLUNT ARY R ECOGNITION OF M INOR N ATURAL C HILDREN Note: The matter of the filiations of illegitimate children and the proof thereof is governed by Articles 172 and 173, in relation to Article 175, of the Family Code. Voluntary recognition An admission of the fact of paternity or maternity by the presumed parent, expressed in the form prescribed by the Civil Code. Its essence lies in the avowal of the parent that the child is his; the formality is added to make the admission incontestable, in view of the consequences (Gapusan Chua v. Court of Appeals, G.R. No. L-46746, March 15,1990). Art. 172. The filiation of legitimate children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgment; or 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws (265a, 266a, 267a). In effect, judicial approval of voluntary recognition is required only when filiation is proved by:

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R ULE 106 C ONSTITUTION OF F AM ILY H OM E Note: The rule has already been repealed by the Family Code, which took effect on August 3, 1988. There is no need to constitute the family home judicially or extrajudicially. If the family actually resides in the premises, it is, automatically considered as a family home as contemplated by law (Modequillo v. Breva, G.R. No. 86355 May 31, 1990). Family home Constituted on a house and lot from the time it is occupied as a family residence. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated (Art. 152, NCC).

San Beda College of Law 2010 Centralized Bar Operations The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law (Art. 153, NCC). The beneficiaries of a family home are: 1. The husband and wife, or an unmarried person who is the head of a family; and 2. Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support (Art. 154, NCC). The family home shall be exempt from execution, forced sale or attachment except: 1. For nonpayment of taxes; 2. For debts incurred prior to the constitution of the family home; 3. For debts secured by mortgages on the premises before or after such constitution; and 4. For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building (Art. 155, NCC).

One who disappears from his domicile and his whereabouts being unknown and without having left an agent to administer his property or the power of agent has expired.

Notice of petition for guardianship for nonresident may be published when court deems it proper.

Procedures in the Rule on Absentees Petition for Appointment of Representative

Application for Declaration of absence and appointment of Trustee or Administrator

Termination of Administration/ Trusteeship Where to file: RTC where the absentee resided before his disappearance Appointment of representative: When a person disappears, whereabouts are unknown, leaves no agent or upon expiration of power of agent, during the first two (2) years. Declaration of absence and appointment of administrator: When a person disappears and still without any news since the receipt of the last news about him, after two (2) years if without administrator or after five (5) years if with administrator.

R ULE 107 A BSENTEES Absentee

Order of hearing must be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where absentee resides and declaration of absence will only take effect 6 months after its publication in a newspaper of general circulation designated by court and in the Official Gazette.

Incompetent Includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, and persons who are unable to take care of themselves and manage their property by reason of age, disease, weak mind and other similar causes.

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SECTION 1. APPOINTMENT OF REPRESENTATIVE This rule is based on Articles 381 and 382 of the Civil Code. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary (Art. 381, NCC). This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (Art. 381, NCC)

San Beda College of Law 2010 Centralized Bar Operations The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians (Art. 322). SECTION 2. DECLARATION OF ABSENCE; WHO MAY PETITION This rule is based on Articles 384 and 385 of the Civil Code. Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared (Art. 384, NCC). Who may file a petition for appointment of administrator or trustee: 1. The spouse present; 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who would succeed by the law of intestacy; 4. Those who have over the property of the absentee some right subordinated to the condition of his death (Art. 385, NCC). Purpose of petition: To appoint an administrator over the properties of the absentee. Hence, if the absentee left no properties, such petition is unnecessary. One’s disqualification as an heir of the absentee does not inhibit him or her from petitioning for a declaration of absence or to be appointed as an administrator of the absentee’s estate (Noquera v. Villamor, G.R. No. 84250, July 20, 1992). It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration (Reyes v. Alejandro, G.R. No. L-32026, January 16, 1986). SECTION 3. CONTENTS OF PETITION 1. The jurisdictional facts; 2. The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; 3. The names and residences of creditors and others who may have any adverse interest over the property of the absentee;

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4.

The probable value, location and character of the property belonging to the absentee.

Period of Absence

Consequence

0-2 years

Petition for Appointment of Representative (unless the absentee left an agent to administer his property)

2 years to 7 years (5 years to 7 years in case the absentee left an agent)

Petition for declaration of absence and appointment of administrator or trustee may be filed.

Beyond 7 years (absence of 4 years under extraordinary circumstance)

Considered dead for all intents and purposes except for purposes of succession (if disappeared under extraordinary circumstances, considered dead for all purposes, even succession); For purposes of Marriage: 4 years continuous absence shall be sufficient for present spouse to remarry, 2 years only under extraordinary circumstance

SECTION 4. TIME OF HEARING; NOTICE AND PUBLICATION THEREOF Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing. It shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. SECTION 5. OPPOSITION Oppositor must: 1. State in writing his grounds therefor; 2. Serve a copy thereof to petitioner and other interested parties on or before the hearing. SECTION 6. PROOF AT HEARING; ORDER Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. SECTION 7. WHO MAY BE APPOINTED Appointment of representative/trustee: 1. Spouse present (preferred); or 2. Any competent person.

San Beda College of Law 2010 Centralized Bar Operations SECTION 8. TERMINATION OF ADMINISTRATION Grounds for termination of the administration 1. Absentee appears personally or through an agent; 2. Absentee’s death is proven and heirs appear; 3. Third person appears showing that he acquired title over the property of the absentee (Art. 389, NCC). General rule: No independent action for Declaration of Presumption of Death. Exception: The need for declaration of presumptive death for purposes of remarriage (Art. 41, Family Code). Note: The Family Code provides that for the purpose of contracting a second marriage, the present spouse must file a summary proceeding for the declaration of the presumptive death of the absentee, without prejudice to the latter’s reappearance. Provisions of the revised rules on evidence on presumption of death: That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; 2. A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and whose existence has not been known for four years; 4. If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the

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absentee, without prejudice to the effect of reappearance of the absent spouse (Sec. 3 [w], Rule 131)..

R ULE 108 C ANCE LAT ION OR C ORRECTION OF E NTRIES IN THE C IVIL R EGISTRY Procedure for cancellation or correction of entries under Rule 108 Petition for Cancellation or Correction of any entry relating to an act, event order or decree concerning the civil status Court order fixing the date and place for Hearing Publication of the court order at least once a week for 3 successive weeks in a newspaper of general circulation, with reasonable notice given to persons named in the petition Filing of opposition by the civil registrar and any person having/claiming interest under the entry whose cancellation/correction is sought, within 15 days from notice of the petition or from the last date of publication of the notice Hearing on the petition Judgment granting/denying the petition. Copy of SECTION WHO MAY PETITION the1.judgment shallFILE be served upon the civil Any personregistrar, interested in any act, event, order or decree who shall annotate the same concerning the civil status of persons recorded in the civil registry.

Where filed: RTC of the province where the corresponding civil registrar is located. Proceedings under Rule 108 may be summary or adversarial: 1. Summary – when the correction sought to be made is a mere clerical error (now governed by R.A. No. 9048). 2. Adversarial - where the rectification affects civil status, citizenship or nationality of a party or any other substantial change. Requisites of adversarial proceedings 1. Petition is filed before the court having jurisdiction over the impleaded civil registrar and all interested parties; (Sec.3)

San Beda College of Law 2010 Centralized Bar Operations 2.

The order of the hearing must be published once a week for three consecutive weeks; 3. Notice thereof must be given to the Civil Registrar and all parties affected thereby; 4. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within 15 days from notice of the petition or from the last date of publication of such notice, file his opposition thereto; 5. Full blown trial. Proceedings for the correction of entries should not be considered as establishing one’s status in a manner conclusively beyond dispute. The status corrected would not have a superior quality for evidentiary purposes. There is no increase or diminution of substantive right (Chiao Ben Lim v. Zosa, G.R. No. L- 40252, December 29, 1986). SECTION 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION (BMD LAVLAA- NEC JVC) 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; 13. Judicial determination of filiation; 14. Voluntary emancipation of a minor; 15. Change of name. Even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings (Republic of the Philippines v. Valencia, G.R. No. L-32181, March 5, 1986). Adversarial proceeding One that has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it (Republic v. Valencia, supra).

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Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in entries of the civil register (Lee v. Court of Appeals, G.R. No. L-118387, Oct. 11, 2001). Whether a petition under Rule 108 can be granted by reason of “sex change” or “sec reassignment”: No. Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the terms “sex” as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category of “female” (Silverio v. Republic of the Philippines, G.R. No. 174689, October 22, 2007). Congenital Adrenal Hyperplasia (CAH) This condition causes the early or “inappropriate” appearance of male characteristics. x x x. CAH is one of many conditions that involves intersex anatomy. During the twentieth century, medicine adopted the term “intersexuality” to apply to human beings who cannot be classified as either male or female. The term is now of widespread use. According to Wikipedia, intersexuality “is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes” (Republic of the Philippines v. Jennifer Cagandahan, G.R. No. 166676, September 12, 2008). Principles laid down by the SC in Republic of the Philippines v. Cagandahan: 1. Where the person is biologically or naturally intersex, the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason thinks of his/her sex; sexual development in cases of intersex persons makes the gender classification at birth inconclusive – it is at maturity that the gender of such persons is fixed. 2. To the person with CAH belongs the human right to the pursuit of happiness and of health, and to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. 3. There is merit in the change of name of a person with CAH where the same is the consequence of the recognition of his preferred gender. SECTION 3. PARTIES 1. Civil registrar; 2. All persons who have or claim any interest which would be affected thereby.

San Beda College of Law 2010 Centralized Bar Operations SECTION 4. NOTICE AND PUBLICATION Order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be notified. SECTION 5. OPPOSITION The following are entitled to oppose the petition: 1. The Civil Registrar; and 2. Any person having or claiming any interest under the entry whose cancellation or correction is sought. Within 15 days from notice of the petition or from date of last publication. SECTION 6. EXPEDITING PROCEEDINGS The court may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. SECTION 7. ORDER The Civil Registrar shall be given a copy of the judgment and annotate the same on his record.

R EPUBLIC A CT N O . 9048 Republic Act No. 9048 or the “Clerical Error Act” which was passed by Congress on February 8, 2001 amended Articles 376 and 412 of the New Civil Code. Republic Act No. 10172 or “An Act Further Authorizing the City or Municipal Civil Registrar or the Consul General to Correct Clerical or Typographical Errors in the Day and Month in the Date of Birth or Sex of a Person Appearing in the Civil Register Without Need of a Judicial Order amended Sections 1, 2, 5 and 8 of Republic Act No. 9048. Cases Covered: 1. Clerical or typographical errors and change of first name or nickname 2. Clerical or typographical errors and change of the day and month in the date of birth 3. Clerical or typographical errors and change of sex of a person where it is patently clear there was clerical or typographical error or mistake in the entry (Sec. 1, R.A. No. 9048, as amended by R.A. No. 10172). General Rule: No entry in a civil register shall be changed or corrected without a judicial order. Exception: Clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.

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Clerical or typographical error A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as a 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: Provided, however, That no correction must involve the change of nationality, age or status of the petitioner (Sec. 2 [3] R.A. No. 9048, as amended by Sec. 2 R.A. No. 10172). Note: It may be very well said that Republic Act No. 9048 is Congress' response to the confusion wrought by the failure to delineate as to what exactly is that socalled summary procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate adversary proceeding for changes or corrections of a substantial kind. The obvious effect is to remove from the ambit of Rule 108 the correction or changing of clerical or typographical errors in entries of the civil register. Hence, what are left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register (Lee v. Court of Appeals, G.R. No. 118387, October 11, 2001). Petition for change of name (Rule 103) and petition for cancellation or correction of entries (Rule 108) are distinct proceedings. Hence, a party cannot change his name and correct an entry in a single petition without satisfying the jurisdictional requirements (Herrera, p.564). The cancellation or correction of entries in the Civil Registry is a proceeding in rem. Strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction (Regalado, p. 193). Definition of terms: 1. First name – refers to a name or nickname given to a person which may consist of one or more names in addition to the middle and last names. 2. Migrant petitioner – refers to a petitioner whose present residence or domicile is different from the place where the civil registry record to be corrected was registered. 3. Record-keeping civil registrar – refers to the City/Municipal Civil Registrar in whose archive is kept the record, which contains the error to be corrected or the first name to be changed. This term shall be used only in cases involving migrant petitioner. 4. Petition-receiving civil registrar – refers to the City/Municipal Civil Registrar of the city or municipality where the petitioner resides or is domiciled and who

San Beda College of Law 2010 Centralized Bar Operations receives the petition on behalf of the Record-keeping Civil Registrar in the case of a migrant petitioner. Grounds: 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; or 3. The change will avoid confusion (Sec. 4). Who may file: Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register (Sec. 3). Person with direct and personal interest: 1. He is the owner of the record; or 2. The owner’s spouse, children, parents, brothers, sisters, grandparents, guardian; or 3. Any other person duly authorized by law or by the owner of the document sought to be corrected. Provided, that when a person is a minor or physically or mentally incapacitated: petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law (Sec. 3).

3. The erroneous entry which are sought to be corrected; 4. All names by which petitioner is known (Secan Kok v. Republic of the Philippines, supra). Annexes to the petition 1. A certified true copy of the certificate or of the page of the registry book containing the entries sought to be corrected or changed; 2. At least 2 public or private documents showing the correct entries upon which correction or change shall be based; 3. Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition; 4. For correction of erroneous entry of date of birth or the sex of a person: earliest school record or earliest school documents such as, but not limited to, medical records, baptismal certificate and other documents issued by religious authorities; 5. For change of gender corrected: certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant. 6. Certification from appropriate law enforcement agencies that the petitioner has no pending case or no criminal record (Sec. 5 as amended by Sec. 3, R.A. No. 10172). Publication requirement: The petition must be published at least once a week for 2 consecutive weeks in a newspaper of general circulation.

Where to file: 1. Local civil registry office or Clerk of the Shari’a Court where the record being sought to be corrected or changed is kept; 2. If petitioner has already migrated to another place in the country: petition-receiving civil registrar of the place where the interested party is presently residing or domiciled (Rule 4, Implementing Rules & Regulations); 3. Citizens of the Philippines who are presently residing or domiciled in foreign countries: nearest Philippine Consulates (Sec. 3). Contents of the petition: The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by the law to administer oaths and shall set forth: 1. The facts necessary to establish the merits of the petition; 2. That the petitioner is competent to testify to the matters stated;

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Copies of the petition shall be given to: the city or municipal civil registrar, or the consul general; the Office of the Civil Registrar General; and the petitioner (Sec. 5). Duties of the city/municipal civil registrar or the Consul General: 1. Examine the petition and its supporting documents; 2. Post the petition in a conspicuous place provided for that purpose for 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance; 3. Act on the petition and render a decision not later than 5 working days after the completion of the posting and/or publication requirement; 4. Transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision (Sec. 6). Duties and powers of the civil registrar general

San Beda College of Law 2010 Centralized Bar Operations 1. Within 10 working days from receipt of the decision granting the petition, the Civil Registrar General shall exercise the power to impugn such decision by way of an objection based on the following grounds: a. The error is not clerical or typographical; b. The correction of entries is substantial or controversial as it affects the civil status of a person; and c. The basis used in changing the first or nick name of a person does not fall under those provided by law. 2. The Civil Registrar General shall immediately notify the city/municipal civil registrar or the consul general of the action taken on the decision. 3. He has appellate powers over the decision of the local civil registrars or consul general (Sec. 7). If the Civil Registrar General fails to exercise his power to impugn within the prescribed period, the decision of the city/municipal civil registrar or the consul general shall become final and executor (Sec. 7). Effect of approving the petition for change of name: The change reflecteddocuments in the birth certificate by Affidavitshall withbe supporting (3 copies) way of marginal annotation. In case there are other civil registry records of the same person which are affected by such change, the approving change ofcivil first Filedofwith the City the or Municipal If change of decision name in the birth certificate, upon becoming final and registrar (Local Civil Registrar first name/ executory, to orbe usedGeneral as basis in [LCR]) Consul nickname: shall be sufficient changing the first name of the same person in his other 1.Two weeks affected records without need for filing a similar petition. In publication 10-day posting by the LCR or such a case, the successful petitioner shall file a request 2.Certification Consul General inthat writing with the concerned LCR or Consul to make such there is no marginal (Rule 12, Implementing Rules & pending annotation case or criminal Regulations 9048, July 24, 2001). LCR or Consul General: 5 days to record ACT on the application Availment of the privilege: The correction of clerical or typographical error shall be availed of only once with respect to a particular entry or entries in the Denies same civil Grants registry record. In case of change of first name or nickname in the birth certificate, the privilege shall be availed of only once,& subject the provisions of Rule 12 Transmit decision records to to Civil ofRegistrar the Implementing Rules & Regulations (Rule 7, IRR General within 5 working days 9048). Payment of Fees: municipalthe civil registrar or Within 10 days, the The city If notorimpugned, theCivilconsul general shall be becomes authorized to collect Registrar decision reasonable fees as a conditionfinal for and accepting the petition. General may impugn the An indigent petitioner shall beexecutory. exempt from the payment of decision way8ofas amended by Sec. 4, R.A. No. 10172) said fee. by (Sec. objection Procedure: Republic Act No. 9048 Notify the LCR or Consul General with the adverse decision LCR or Consul General shall notify petitioner Motion for Reconsideration with Civil Registrar General

Appeal to Civil Registrar General

File appropriate petition with the 75 proper court

Note: In case of a migrant petitioner, the petition shall be posted first at the office of the petition-receiving civil registrar for 10 consecutive days before sending it to the record-keeping civil registrar. Upon receipt, the RKCR shall post again the petition in his office for another 10 consecutive days (Rule 9, IRR 9048). In the case where a person’s civil registry record or records were registered in the Philippines or in any of the Philippine Consulates, but the persons presently resides or is domiciled in a foreign country, posting and/or publication, as the case may be, shall be done in the place where the petition is filed and in the place where the record sought to be corrected is kept (Rule 9, IRR 9048). Grounds for impugning the decision granting the petition 1. Error is not clerical or typographical; 2. Correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or

San Beda College of Law 2010 Centralized Bar Operations 3. The basis used in changing the first name or nickname does not fall under any of the grounds. See Comparative Chart: Rule 103, Rule 108, R.A. No. 9048 on Page 252.

R ULE 109 A PPE ALS IN S PECIAL P ROCEEDINGS The period of appeals in Special Proceedings shall be 30 days and a record on appeal is required. (Herrera, p. 578) SECTION 1. ORDERS OR JUDGMENTS FROM WHICH APPEALS MAY BE TAKEN An interested person may appeal in special proceedings from such order or judgment rendered which: (ADASCO) 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 the 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 a 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 be an order granting or denying a motion for a new trial or for reconsideration. Note: Rule 109 enumerates the cases wherein multiple appeals are allowed and a record on appeal is required for an appeal to be perfected. The petition for the declaration of presumptive death of an absent spouse not being included in the enumeration, petitioner’s mere notice of appeal suffices. The reason is that said petition is a summary proceeding under the Family Code, and not a special proceeding under the Rules of Court (Republic of the Philippines v. Court of Appeals, G.R. No. 163604, May 6, 2005). Who may appeal? An interested person whose interest must be material and direct, not merely indirect or contingent (Teotico v. De Vat, G.R. No. L-18753, March 26, 1965).

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Orders that are not appealable 1. Order directing administrator to take action to recover amount due to the estate; 2. Order made in administration proceedings relating to inclusion or exclusion of items of property in the inventory of executor or administrator; 3. Order appointing special administrator. SECTION 2. ADVANCE DISTRIBUTION IN SPECIAL PROCEEDINGS Rule on advance distribution: Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court: 1. In its discretion; and 2. Upon such terms as it may deem just and proper; 3. Permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the condition in Rule 90. 4. The distributees must post a bond as provided under Section 1, Rule 90 (Peña and Nolasco Law Office v. LCN Construction Corp., G.R. No. 174873, August 26, 2008). Appeal In Ordinary Civil Action 15 days. Notice of Appeal and docket fees. No extension.

Appeal In Special Proceedings 30 days. Record on Appeal and docket fees. Maybe extended on meritorious grounds.

Note: The appeal shall affect every order, decree, or judgment appealed from, and not merely the interest which the appellants may have therein (Panis v. Yangco, G.R. No. L-29460, December 22, 1928). Multiple appeals A.Settlement of the Estate 1. Order admitting the will to probate; 2. Appointment of executor or administrator; 3. Appeal from the order concerning a contested claim; 4. Order determining the heirs. 5. Appeal by surety of an executor or administrator, admitted as party to an accounting made by such executor or administrator, in an order of the court approving or disapproving such accounting (Saguinsin v. Lindayag, G.R. No. L-17759, December 17, 1962 ); 6. Appeal by heir from money claim (Fluemer v. Hix, G.R. No. L-32636, March 17, 1930); 7. Order for license to sell (Santos v. Roman Catholic Bishop of Nueva Caceres, G.R. No. L-21289, April 5,1924); 8. Order against bond (Moran); and

San Beda College of Law 2010 Centralized Bar Operations 9. Order to contract obligation (De Borja Encarnacion, G.R. No. L-4179, May 30, 1951).

v.

B.Guardianship 1. Order annulling appointment of guardian (Alemany v. Sweeney, G.R. No. 1403, March 19, 1904); and 2. Order removing a guardian (Olarte v. Enriquez, G.R. No. L-16098, October 31, 1960). Certiorari and mandamus are not substitutes for appeal Having lost the remedy to appeal due to the parties’ own neglect, they cannot seek redress by certiorari and mandamus, it not appearing that the lower court acted without jurisdiction (Profeta v. Guitierrez David, G.R. No. V ENUE AND J URISDICTION IN L-47736, April 18, 1941).

Special Proceeding Settlement of the Estate

S PECIAL P ROCEEDINGS

Venue

Jurisdiction MTC if the gross value of the estate does not exceed Residence of the decedent or if the PhP300,000, or does not exceed decedent is a non-resident, place PhP400,000 in Metro Manila where he had an estate RTC if the gross value of the estate exceeds the above amounts

Escheat

Appointment of Guardians

Appointment of Trustees

Domestic Adoption Inter-Country Adoption Rescission of Adoption Habeas Corpus

a. Person dies intestate leaving no heir – Residence of the decedent or if non-resident, in the place where he had an estate. b. Reversion – Where the land lies in whole or in part c. Unclaimed Balances Act – Where the dormant deposits are located Where the minor or incompetent resides Where the will was allowed or where the property or portion thereof affected by the trust is situated Where the adopter resides Where the adoptee resides if filed with the Family Court Where the adoptee resides

RTC RTC RTC Family Court (in case of Minors) RTC (Regular courts—in case of Incompetents) RTC/MTC

Family Court Family Court or the Inter-Country Adoption Board Family Court SC, CA, RTC, MTC in the province or city in case there is no RTC Where the detainee is detained (if judge; the petition is filed with the RTC) Sandiganbayan only in aid of its appellate jurisdiction.

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San Beda College of Law 2010 Centralized Bar Operations Special Proceeding Custody of Minors

Habeas Data

Amparo Proceedings Habeas Corpus in relation to minor Change of Name Appointment of Representative of Absentee/Declaration of Absence Cancellation/Correction of Entries in the Civil Registries

Petition for Declaration of Nullity, Annulment, Legal Separation

Venue Province or city where petitioner resides or minor may be found. 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 petitioner Where the threat act or omission was committed or any of its elements occurred Where the petitioner resides or where the minor may be found. Where petitioner resides

Jurisdiction Family Court RTC; Sandiganbayan, CA or SC when the action concerns public data files or government offices RTC; Sandiganbayan, CA, or SC or any justice thereof Family Court, CA and SC. RTC

Where the absentee resided RTC before his disappearance Where the corresponding Civil RTC Registry is located Where petitioner or respondent has been residing for at least 6 months prior to the date of filing, in Family Court case of non resident respondent, where he may be found at the election of the petitioner.

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San Beda College of Law 2010 Centralized Bar Operations

C OMP ARAT IVE C HART : H ABEAS C ORPUS , W RIT H ABEAS D ATA

OF

A MPARO

AND

Writ of Habeas Corpus

Writ of Amparo Involves the right to life, liberty and Involves the right to liberty of and security of the aggrieved party and rightful custody by the aggrieved party covers extralegal killings and enforced disappearances There is an actual violation of There is an actual or threatened aggrieved party’s right. violation of aggrieved party’s right.

Writ of Habeas Data Involves the right to privacy in life, liberty or security of the aggrieved party and covers extralegal killings and enforced disappearances There is an actual or threatened violation of aggrieved party’s right. Respondent is a public official or employee or a private individual or entity engaged in the gathering, Respondent is a public official or collecting or storing of data or Respondent: may or may not be an employee or a private individual or information regarding the person, officer. entity. family name and correspondence of the aggrieved party. Who may file the petition: Who may file the petition: Who may file the petition: Filed by the party for whose relief it is Filed by the aggrieved party or by any intended or by some person on his qualified person or entity in the behalf. following order: a) any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b) any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity; c) any concerned citizen, organization, association or institution (right to file is successive). The filing of the aggrieved party himself suspends the right to file petition by other persons. Upon filing of the petition by an authorized person suspends the right

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Filed by the aggrieved party; but in cases of extralegal killings and enforced disappearances, may be filed by: a) any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b) any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity.

San Beda College of Law 2010 Centralized Bar Operations Writ of Habeas Corpus

Writ of Amparo

Writ of Habeas Data

to file by others down the order.

Filed before: Filed before: Filed before: 1. RTC or any judge thereof, 1. RTC of the place where the 1. RTC where the petitioner or enforceable within its territorial threat act or omission was respondent resides, or that which jurisdiction; committed or any of its elements has jurisdiction over the place 2. CA or any member thereof occurred; where the data or information is in instances authorized by law; and 2. Sandiganbayan or any gathered collected or stored, at 3. SC or any member thereof. justice thereof; the option of petitioner 3. CA or any justice thereof; 2. SC, CA or Sandiganbayan Contents of the signed verified and when the action concerns public petitions: 4. SC or any justice thereof. data files or government offices. 1. The fact that the person in whose Contents of the signed and verified behalf the petition is filed is petition: imprisoned or restrained of his liberty; 1. Petitioner’s circumstances. 2.The detaining officer or private 2. individual, if unknown or uncertain, Respondent’s circumstances such officer or person maybe 3. described by an assumed The right violated or threatened to be appellation; violated details of the violation or threat. 3.The place where the person 4. deprived of his liberty is imprisoned Investigations conducted or detained; and 5. Actions and recourses taken by the 4.A copy of the commitment or cause petitioner in ascertaining the of detention of such person, if it can whereabouts of the aggrieved party. be procured without impairing the 6. efficiency of the remedy, or the fact Relief prayed for which may include a that the imprisonment or detention general prayer for other just and is without any legal authority. equitable reliefs.

Contents of the signed and verified petition: 1. Pe titioner’s circumstances. 2. Re spondent’s circumstances. 3. Lo cation of the file or database and the person or entity having custody, possession or control. 4. Ac tions and recourses taken by the petitioner to secure the data or information. 5. Up date, rectification, suppression or destruction of the file or database or the enjoinment of the threat. 6. G eneral prayer to other just and equitable reliefs.

If granted by SC or CA or any member of such courts, it is The writ shall be enforceable The writ shall be enforceable enforceable anywhere in the anywhere in the Philippines anywhere in the Philippines regardless Philippines; if granted by the RTC or a regardless of who issued the same. of who issued the same. judge thereof, it is enforceable only within his judicial district.

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San Beda College of Law 2010 Centralized Bar Operations Writ of Habeas Corpus

Writ of Amparo

If issued by the RTC or any judge thereof, it is returnable before such court or judge. If issued by the Sandiganbayan or the CA or any of their justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. If granted by the SC or CA or any member of such courts, it may be made returnable before the court or any member thereof or before an RTC or any judge thereof. If granted by the RTC or a judge thereof, it is returnable before himself.

If issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or the Sandiganbayan or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred.

Writ of Habeas Data If issued by the RTC or any judge thereof, it shall be returnable before such court or judge. If issued by the CA or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored. If issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or before the CA or the Sandiganbayan or any of its justices, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored.

The writ shall be immediately issued The writ shall be immediately issued upon filing of a valid petition upon filing of a valid petition substantial in form and content. substantial in form and content. The clerk of court shall issue the writ The clerk of court shall issue the writ under the seal of the court; shall be under the seal of the court. Except in served by the clerk within 3 days from emergency cases which may be issuance. In case of emergency, the issued by the judge or justice. writ maybe issued by a justice or judge. The writ shall set the date and time for summary hearing within 7 days from The writ shall set the date and time for the issuance of the writ. summary hearing within 10 days from issuance. Petitioner is exempted from payment of docket and other lawful fees.

Only an indigent petitioner is not required to pay docket and other lawful fees.

Summary hearing shall be conducted Summary hearing shall be conducted Date and time of hearing is specified not later than 7 days from the date of not later than 10 work days from the in the writ. the issuance of the writ. date of the issuance of the writ. Served upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply.

Served upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply.

Served to the person to whom it is directed; and if not found or has not the prisoner in his custody, to the other person having or exercising A copy is served on the respondent A copy is served on the respondent such custody. and the sheriff retains a copy on which and the sheriff retains a copy on which to make a return of service. to make a return of service.

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San Beda College of Law 2010 Centralized Bar Operations Writ of Habeas Corpus If the person to whom the writ is directed neglects or refuses to obey or make return of the same, or makes a false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours after the demand therefore, a true copy of the warrant or order of commitment, he shall forfeit to the party aggrieved the sum of Php 1,000 and may be punished for contempt.

Writ of Amparo

Writ of Habeas Data

If the respondent refuses to make a return or makes a false return, he may be punished with imprisonment or fine for committing contempt without prejudice to other disciplinary actions.

If the respondent makes a false return or refuses to make a return, he may be punished with imprisonment or fine for committing contempt without prejudice to other disciplinary actions..

The person who makes the return is The person who files the return is the the officer by whom the prisoner is respondent. The return must be filed imprisoned or the person in whose within 5 days from the service of the custody the prisoner is found. writ. Contents of the Return: Contents of the Return: 1. Whether or not he has custody over 4. Lawful defenses available to the aggrieved party; the respondent. 2. The authority and the true and 5. The actions and steps taken by whole cause of detention; the petitioner in determining the 3. if the party detained cannot be whereabouts of the aggrieved produced, he must state the sickness party and the identity of the or infirmity; violator. 4. if he has transferred the custody, he 6. All information relevant to the shall state whom the person was case. transferred, time, cause and authority 7. Actions taken by the public of such transfer. official: a. In verifying the identity of the aggrieved party. b. Recovery and preservation of the evidence for the prosecution. c. Determine the circumstances surrounding the death of disappearance. d. Identify and apprehend the persons involved. e. Bring the suspected offender to the court.

The person who files the return is the respondent. The return must be filed within 5 days from the service of the writ.

Contents of the Return: 1. Lawful defenses available. 2. If the respondent has possession or control of the data or information: a. He must disclose the data or information, its nature, and the purpose of his collection. b. The actions and steps taken in order to secure the confidentiality of the data or information. c. The accuracy of the data or information in his possession or control. 3. All relevant allegations. A general denial of the allegations in the petition shall not be allowed.

A general denial of the allegations in the petition shall not be allowed. Effects of failure to file a return: Effects of failure to file a return:

The Court, justice or judge shall proceed to hear the petition ex parte, If the respondent fails to file a return, granting the petitioner such relief as the court, justice or judge shall the petition may warrant unless the proceed to hear the petition ex parte. court in its discretion requires petitioner to submit evidence.

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San Beda College of Law 2010 Centralized Bar Operations Writ of Habeas Corpus

Sec. 12 1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case requires; 2. The court or judge must be satisfied that the person’s illness is so grave that he cannot be produced without any danger.

Writ of Amparo

Writ of Habeas Data

There are prohibited pleadings and motions.

There are prohibited pleadings and motions.

Sec. 14. The court, justice or judge may grant interim reliefs, to wit: temporary protection order, inspection NOT applicable. order, production order and witness protection order.

There is no presumption that official duty has been regularly performed. Judgment shall be rendered within Judgment shall be rendered within 10 days from the time the petition is 10 days from the time the petition is submitted for decision. submitted for decision.

Period of appeal is within 48 hours from notice of the judgment or final order appealed from. The appeal shall be filed to the Supreme Court under Rule 45. (Tan Chin Hui v. Rodriguez, G.R. No. 137571, September 21, 2000).

The writ and reliefs prayed for must be granted if the allegations are proven by substantial evidence. Otherwise, it must be denied.

The writ and reliefs prayed for must be granted if the allegations are proven by substantial evidence. Otherwise, it must be denied. Judgment shall be enforced within 5 working days.

Period of appeal shall be 5 working days from the date of notice of the adverse judgment. Filed with SC thru RULE 45. Given the same priority as that of Habeas Corpus.

Period of appeal shall be 5 working days from the date of notice of the judgment or final order. Filed with SC thru RULE 45. Given the same priority as that of Habeas Corpus.

May be consolidated with a criminal May be consolidated with a criminal action filed subsequent to the petition. action filed subsequent to the petition. Quantum of proof is clear and Quantum of proof is substantial convincing evidence. evidence. If the petition cannot proceed for a valid cause, it shall not be dismissed by the court, but it must be archived. After 2 years from notice of the archiving of the petition, it shall be dismissed with prejudice upon failure to prosecute. Substantive rights cannot be increased, diminished or modified. The Rules of Court applies suppletorily.

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Substantive rights cannot be increased, diminished or modified. The Rules of Court applies suppletorily.

San Beda College of Law 2010 Centralized Bar Operations

C OM PARATIVE C HART : R ULE 103, R ULE 108 Rule 103

Substantial change of name

Change of full name

Rule 108 Cancellation or Correction of Entries in the Civil Registry (Substantial and adversary, if change affects the civil status, citizenship or nationality; Summary, if it involves mere clerical errors.) Change or corrections in the civil registry entries (substantial corrections): Births, marriages, deaths, legal separation, judgments of annulments of marriage, judgments declaring void a marriage, legitimations, adoptions, acknowledgment of natural children, naturalizations, election, loss or recovery of citizenship, civil interdiction, judicial determination of filiation. Who may file

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AND

R.A. N O . 9048 R.A. No. 9048

Clerical Error Act

Change of first name and nickname and civil registry entries (only typographical or clerical errors)

San Beda College of Law 2010 Centralized Bar Operations Any person interested in any act, event, order or decree concerning A person desiring to change his the civil status of persons which name files a petition. has been recorded in the civil register. Venue

RTC of the province in which the petitioner resides for 3 years prior RTC of the city or province where to the filing, or, in the City of the corresponding civil registry is Manila, to the Juvenile and located Domestic Relations Court

Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nick name files a verified petition in a form of an affidavit. 1. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept; 2. Local civil registrar of the place where the interested party is presently residing or domiciled (transient petitioner); 3. Philippine consulates

Contents of Petition 1. Facts necessary to establish the merits of the petition; 2. Particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of filing; b) The cause for which the change of the petitioner’s name is sought; c) The name asked for; d) All names by which petitioner is known.

The petition shall be supported with the following documents: a) Certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; b) At least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based; and c) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. Grounds

a) Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; b) Consequence of change of status; c) Necessity to avoid confusion; d) Having continuously used and Upon good and valid grounds, the been known since childhood entries in the civil registry may be by a Filipino name, unaware of cancelled and corrected. his/her alien parentage; e) A sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody.

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a) First name or nickname is ridiculous, tainted with dishonor or extremely difficult to write and pronounce; b) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or c) To avoid confusion.

San Beda College of Law 2010 Centralized Bar Operations Kind of Proceeding Summary proceeding This can be converted to an Administrative adversarial proceeding if there are substantial changes and affect the status of an individual What to File Verified petition for the Signed and verified petition cancellation or correction of any Verified petition in the form of Affidavit entry Notice, Publication and Posting At least once a week for three At least once a week for three At least once a week for 2 consecutive consecutive weeks in a consecutive weeks in a weeks (publish the whole affidavit) newspaper of general circulation newspaper of general circulation (notice of hearing) (notice of hearing) Duty of the civil registrar or Consul to post the petition in a conspicuous place for 10 No posting No posting consecutive days Judicial

Service of judgment shall be upon the civil register concerned.

Service of judgment shall be Transmittal of decision to civil registrar upon the civil register concerned. concerned. Participation by the Government

Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Republic. Civil Registrar is an indispensable Civil Registrar or Consul party. Civil Registrar is not a party to the proceeding. Appeal Court of Appeals Court of Appeals Civil Registrar General (head of NCSO)

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