Special Proceedings

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

SPECIAL PROCEEDINGS

SPECIAL PROCEEDING This is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Rule 1, Sec. 3c)

RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings Section 2. Applicability of rules of civil actions SUBJECT MATTER OF SPECIAL PROCEEDINGS a. Settlement of estate of deceased persons b. Escheat c. Guardianship and custody of children d. Trustees e. Adoption f. Rescission and revocation of adoption g. Hospitalization of insane patient h. Habeas corpus i. Change of name j. Voluntary dissolution of corporations k. Judicial approval of voluntary recognition of minor natural children; l. Constitution of family home m. Declaration of absence and death n. Cancellation of correction of entries in civil registry OTHER SPECIAL PROCEEDINGS a. liquidation proceedings b. intra-corporate controversies c. corporate rehabilitation QuickTime™ and a TIFF (Uncompressed) decompressor neededenforcement to see this picture. d. recognition are and of arbitration proceedings e. vacation, setting aside, correction or modification of an arbitral award f. any application with a court for arbitration assistance and supervision ACTION To protect or enforce a

SPECIAL PROCEEDINGS To establish a status,

right, or to prevent or redress a wrong Initiated by Complaint Definite Parties Answer is filed Handled by court of general jurisdiction Adversarial Statute of Limitations applies 15-day appeal period

right, or a particular fact Initiated by Petition Definite petitioner, no definite adverse party Opposition is filed Heard by court of limited jurisdiction Not adversarial No statute of limitations 30-day appeal period

JURISDICTION AND VENUE a. Settlement of estate of deceased persons i. RTC – Gross value of the estate exceeds P300,000/P400,000 ii. MTC – Gross value of the estate does not exceed P300,000/P400,000 ƒ If resident – place where deceased resided at time of death ƒ If non-resident – place where deceased had estate Heirs of Sandejas v. Lina, February 5, 2001 (2001) Probate jurisdiction extends to matters incidental and collateral to the exercise of a probate court’s recognized powers such as selling, mortgaging or otherwise encumbering realty belonging to the estate. b. Escheat i. Ordinary escheat proceedings: RTC ƒ If resident – place where deceased last resided ƒ If non-resident – place where he had estate ii. Reversion of land to State for violation of Constitution / Laws: RTC where land lies in whole or in part iii. Unclaimed deposits (for 10 years): RTC of province where bank is located ƒ all banks located in 1 province where court is located may be made parties defendant in 1 action. c. Guardianship and custody of children: Family Court ƒ If resident – place where minor/incompetent resides ƒ If non-resident – place where minor/incompetent has property

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. Trustees i. RTC – Gross value of the estate exceeds P300,000/P400,000 ii. MTC – Gross value of the estate does exceed P300,000/P400,000 ƒ If will allowed in the Philippines – court where will was allowed ƒ If will allowed outside the Philippines – court in place where property is situated e. Adoption: Regional Trial Court ƒ If domestic adoption – place where adopter resides ƒ If inter-country adoption – court who has jurisdiction over the adoptee f. Rescission and revocation Regional Trial Court

of

adoption:

g. Hospitalization of insane patient: RTC in place where person alleged to be insane is found h. Habeas corpus i. SC (original, concurrent with RTC) ii. CA (original, concurrent with RTC) iii. RTC (within its respective region) iv. MTC (in absence of RTC judges in province/city) i. Change of name i. Judicial (Rules of Court): RTC in place where petitioner resides ii. Administrative (RA 9048): ƒ Civil registar where entry is located or if applicant migrated: civil registar in place where he resides ƒ Consul General: if applicant resides abroad j. Voluntary dissolution of corporations: SEC k. Constitution of family home: under the Family Code, it is deemed constituted on a house and lot from the time it is occupied as a family residence l. Declaration of absence and death: RTC in QuickTime™ and a TIFF (Uncompressed) decompressor place whereare needed absentee resided before his to see this picture. disappearance m. Cancellation of correction of entries in civil registry i. Judicial (Rules of Court): RTC in place where the civil registry is located ii. Administrative (RA 1948):

ƒ Civil registar where entry is located or if applicant migrated: civil registar in place where he resides ƒ Consul General: if applicant resides abroad

SETTLEMENT OF ESTATE OF DECEASED PERSONS DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON: 1. Extrajudicial Settlement of Estate (Rule 74, Sec. 1) 2. Summary Settlement of Estate of Small Value 3. Partition (Rule 69) 4. Probate of Will (Rule 75 to 79) 5. Petition for Letters of Administration in case of Intestacy

RULE 73 VENUE AND PROCESS Section 1. Where estate of deceased person settled Section 2. Where estate settled upon dissolution of marriage Section 3. Process Section 4. Presumption of death According to Circular No. 21-99 (15 April 1999), the new jurisdictional amounts as adjudged under RA 7691 will be as follows: File in the RTC: Before 14 April 1999

In Metro Manila Outside Manila

>P200,000

14 April 1999 – 31 December 2003 >P400,000

>P400,000

>P100,000

>P200,000

>P300,000

Beginning Year 2004

≤P200,000

14 April 1999 – 31 December 2003 ≤P400,000

≤P400,000

≤P100,000

≤P200,000

≤P300,000

File in the MTC: Before 14 April 1999

In M. Manila Outside Manila

Beginning Year 2004

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs. RESIDENCE This means his personal, actual or physical habitation, his actual residence or place of abode (Fule v. CA, L-40502, Nov. 29, 1976) Extent of Jurisdiction of Probate Courts Probate courts are courts of limited jurisdiction. It may only determine and rule upon issues relating to the settlement of the estate, namely: 1. Administration of the estate 2. Liquidation of the estate 3. Distribution of the estate WHEN PROBATE PASSES UPON QUESTION OF TITLE TO PROPERTY: a. Interested parties who are all heirs consents and 3rd parties not prejudiced (Bernardo v. CA, Feb. 28, 1963); b. Otherwise, only in a provisional manner, to determine whether property should be included in the inventory, without prejudice to the final determination of title in a separate action. c. Question is one of collation or advancement GENERAL RULE Probate court cannot issue writs of execution. EXCEPTION: When probate courts can issues writs of execution: a. To satisfy distributive shares of the devisees, legatees, and heirs in possession of decedent’s assets; b. To enforce payment of expenses in partition; c. To satisfy costs when a person is cited for examination in probate proceedings. d. To satisfy the claim in summary settlement proceedings of creditors or heirs who appear within 2 years from the distribution. PRINCIPLE OF EXCLUSIONARY RULE The Court first taking cognizance of the settlement of the estate of the decedent shall jurisdiction QuickTime™ andexercise a TIFF (Uncompressed) decompressor to the exclusion of all otherto see courts. are needed this picture. 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 an extrajudicial partition of the estate; or by filing another petition for settlement in a proper court of concurrent venue.

EXCEPTION: Estoppel by laches Vda. De Manalo v. CA 349 SCRA 135 (2001) In the determination of the nature of an action or proceeding, the averments and the character of the relief sought in the complaint/petition shall be controlling. In this case, the petition contains sufficient jurisdictional facts required in a petition for settlement of estate. Indeed, the petition contained certain averments that may be typical of an ordinary civil action and the oppositors took advantage of the said defect. But oppositors may not be allowed to defeat the purpose of an essentially valid petition by raising matters that are irrelevant and immaterial to said petition. The jurisdiction of a court as well as the concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer.

RULE 74 SUMMARY SETTLEMENT OF ESTATES Section 1. Extrajudicial settlement by agreement between heirs Section 2. Summary settlement of estates of small value Section 3. Bond to be filed by distributees Section 4. Liability of distributees and estate Section 5. Period for claim of minor or incapacitated person GENERAL RULE When a person dies, his estate is submitted to a judicial settlement proceeding. EXCEPTION: When estate need not be judicially administered through an administrator or executor: a. Extrajudicial settlement; b. Summary settlement of estate of small value (not exceeding P10,000) EXTRAJUDICIAL SETTLEMENT a. Does not require court intervention; b. Value of estate is immaterial; c. Allowed only in intestate succession; d. Proper only where there are no outstanding debts of the estate at the time of settlement; e. Can be resorted to only at the instance and by agreement of all heirs. (If heirs do not agree, they may resort to an action for partition)

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES OF A VALID EXTRAJUDICIAL SETTLEMENT: Substantive: a. Decedent dies intestate; b. No outstanding debts of the estate at the time of the settlement; c. Heirs are all of age or the minors are represented by their judicial guardians or legal representatives; Procedural a. Settlement is made in a public instrument duly filed with the register of deeds or by affidavit of adjudication in the case of a sole heir; b. Filed with the Register of Deeds; c. Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; d. Bond filed equivalent to the value of the personal property. When bond filed is required? Bond filed is required only when personal property is involved. If real, it is subject to a lien in favor of creditor for full period of 2 years from such distribution and such lien cannot be substituted by a bond. Is a public instrument necessary for validity? No. Private instrument/document or oral agreement of partition is valid among the heirs who participated in the EJS. The requirement in Rule 74 Sec. 1 that it must be in a public instrument is NOT constitutive of the validity but is merely evidentiary (Hernandez v. Andal). Reformation, in this case can be compelled. Debts: 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 of the EJS. Philippines Economic Zone Authority v. Fernandez et. al., G.R. No. 138971 (2001) Persons unduly deprived of their lawful participation in a settlement may assert their claim only within the 2-year period after the settlement and QuickTime™ and aprescription period distribution of the estate. This TIFF (Uncompressed) decompressor are needed to this picture. does not apply, however, toseethose who had no part in or had no notice of the settlement. § 4, Rule 74, is not meant to be a statute of limitations. An extrajudicial partition, being merely an ex parte proceeding, would not affect third persons who had no knowledge thereof. By its registration in the manner provided by law, a transaction may be known actually or constructively.

SUMMARY SETTLEMENT OF ESTATES WITH SMALL VALUE: a. Involves judicial adjudication in a summary proceedings; b. Applies only when gross estate does not exceed P10,000 (Amount is jurisdictional); c. Allowed in both testate and intestate estates; d. Available even if there are debts as the court will make provisions for the payment thereof. 2 YEAR LIEN, REQUISITES: a. persons have taken part or have notice of extrajudicial partition; b. compliance with the provisions of Rule 74, Sec. 1 REMEDIES OF AGGRIEVED PARTIES AFTER SETTLEMENT OF ESTATE: a. Within 2 years – claim against the bond or the real estate; b. Rescission in case of preterition of compulsory heir in partition tainted with bad faith (NCC Art. 1104); c. Reconveyance of real property; d. Action to annul deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from discovery An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes in 10 years. If on the date of the expiration of the 2-year period, the creditor or heir is: a. minor or incapacitated b. in prison c. outside of the Philippines He may present his claim within one year after such disability is removed (Rule 75, Sec. 5).

RULE 75 PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY Section 1. Allowances necessary; Conclusive as to execution Section 2. Custodian of will to deliver Section 3. Executor to present will and accept or refuse trust Section 4. Custodian and executor subject to fine for neglect Page 135 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 be

of non-resident, that he left an estate within such territorial jurisdiction).

PROBATE OF WILL It is a juridical act whereby an instrument is adjudged valid and is ordered to be recorded. No will shall pass property unless probated.

DIFFERENCES BETWEEN PETITION FOR PROBATE FILED BY THIRD PERSONS, AND BY TESTATOR HIMSELF

Section 5. committed

Person

retaining

will

may

Filed by third person CUSTODIAN He is a person chosen in advance and entrusted with the custody of the will. It does not refer to a mere possessor of the will. He must deliver the will to the court or to the executor within 20 days after he learns of the death of the testator (Rule 75, Sec. 2).

Notice published once a week for 3 consecutive weeks Personal notice given to designated/known heirs, legatees and devisees

Filed by testator himself Newspaper publication not required Personal notice sent only to testator’s compulsory heirs

Section 2. Contents of petition NATURE OF PROBATE PROCEEDINGS: a. In rem b. Mandatory c. Imprescriptible d. Estoppel does not apply US v. Guimco, G.R. No. 12184 (1917) The act penalized in §4 (where the custodian and executor are subjected to a fine for neglect not exceeding P2,000) is a special statutory offense and is properly prosecuted upon complaint or information as other criminal offenses created by law.

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL Section 1. Who may petition for the allowance of will WHO MAY PETITION FOR THE ALLOWANCE OF A WILL: a. Any creditor as preparatory step for filing his claim therein; b. Devisee or legatee c. Person interested in the estate (heirs) d. Executor e. Testator himself during his lifetime. QuickTime™ and a TIFF (Uncompressed) decompressor

are needed to picture. WHO MAY BE A PARTY INseeAthisPROBATE? Generally, any person having a direct and material interest in the will or estate

JURISDICTIONAL FACTS ALLEGED IN PETITION FOR PROBATE: a. Person died leaving a will; b. In case of a resident, that he resided within the territorial jurisdiction of the court; (in the case

CONTENTS OF PETITION FOR PROBATE: a. Jurisdictional facts; b. Names, ages and residences of heirs, legatees, and devisees; c. Probable value and character of property of estate; d. Name of person for whom letters are prayed; and e. If will has not been delivered to the court, the name of the person having custody of it. 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. Section 3. Court to appoint time for proving will Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally When does court acquire jurisdiction? Upon PUBLICATION for 3 weeks successively of the order setting the case for hearing AND sending of NOTICES (20 days before hearing by mail, 10 days before by personal notice) to all persons interested. Section 5. Proof at hearing EVIDENCE IN SUPPORT OF PROBATE OF UNCONTESTED WILL a. Notarial Wills – testimony of at least 1 of the subscribing witnesses; deposition allowed if witnesses outside the province (Sec. 7) b. Holographic Wills – testimony of 1 witness who knows the handwriting and signature of the testator. In the absence thereof, testimony of an expert witness.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 6. Proof of lost or destroyed will HOW WILL IS PROVEN AS LOST OR DESTROYED: a. Prove that will: i. Was in existence at time of testator’s death, OR ii. Was fraudulently or accidentally destroyed in testator’s lifetime without his knowledge; b. Provisions of will must be clearly and distinctly proven by at least 2 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 FOR DISALLOWING WILL: a. Not executed and attested as required by law; b. Testator was mentally incapacitated to make a will or insane at the time of execution; c. Executed under duress, influence of fear, or threats; d. Procured by undue and improper influence and pressure on the part of the beneficiary or of some other person for his/her benefit; e. Signature of testator was procured by fraud/trick and she/he did not intend instrument to be will. GENERAL RULE: HOLOGRAPHIC WILL If destroyed, cannot be probated. EXCEPTION: If there exists a Photostatic or Xerox copy thereof (Gan v. Yap, 104 PHIL 509) Section 10. Contestant to file grounds of contest Section 11. Subscribing witnesses produced or accounted for where will contested EVIDENCE IN SUPPORT OF PROBATE OF CONTESTED WILL a. Notarial Wills – All subscribing witnesses and notary public before whom the will is QuickTime™ a be allowed if the acknowledged. Will may and still TIFF (Uncompressed) decompressor are neededfrom to see this picture. Court is satisfied the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law EVEN IF any of the witnesses testify against, do not remember, or of doubtful credibility. b. Holographic Wills – testimony of 3 witnesses (mandatory, Codoy v. Calugay, Aug. 12, 1999) who knows the handwriting and signature of

the testator. In the absence thereof, testimony of an expert witness. Section 12. Proof where testator petitions for allowance of holographic will Section 13. Certificate of allowance attached to proved will

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER Section 1. Will proved outside Philippines may be allowed here Section 2. Notice of hearing for allowance Section 3. When will allowed, and effect thereof Section 4. Estate, how administered IN RE-PROBATE OF WILL PROVEN ABROAD, PROPONENT MUST PROVE: a. Testator was domiciled in the foreign country; b. Will has been admitted to probate in such country; c. Foreign country was, under the laws of such country, a probate court with jurisdiction; d. Law on foreign probate procedure and proof of compliance therewith; e. Legal requirements in said country for valid execution of will.

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED Section 1. Who are incompetent to serve as executors or administrators THE FOLLOWING ARE DISQUALIFIED FROM SERVING AS EXECUTORS OR ADMINISTRATORS: a. A minor; b. A non-resident (of Phils.) c. A person unfit in the opinion of the court to execute the duties of his trust by reason of: i. drunkenness; ii. improvidence; iii. want of understanding and integrity; iv. conviction of an offense involving moral turpitude. Page 137 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2. Executor of executor not to administer estate Section 3. Married women may serve REQUISITES FOR A PERSON TO BE APPOINTED EXECUTOR OR ADMINISTRATOR: a. Accepts the trust b. Gives a BOND c. Competent Executor Nominated by the testator and appointed by the court

Must present will to the court within 20 days after knowledge of death or of such appointment, unless the will has reached the court in any manner Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts) Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7

Administrator Appointed by the court in case the testator did not appoint and executor or if the executor refused or if the will was disallowed or there is no will (intestacy) No such duty

ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION: a. The surviving spouse 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 request to have appointed, if competent and willing to serve (SURVIVING SPOUSE OR NOMINEE) b. If above be incompetent or unwilling or they neglect for 30 days after death to apply for administration, any one or more of the PRINCIPAL CREDITORS, if competent and willing to serve c. If above be incompetent or unwilling, it may be granted to such other person as the court may select (STRANGER). 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.

Must always post bond RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTAY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION Governed by Rule 85, Sec. 7

Section 4. Letters testamentary issued when will allowed Section 5. Where some coexecutors disqualified others may act Section 6. When and to whom letters of administration granted LETTERS TESTAMENTARY It is the authority issued to an executor named in the will to administer the estate. QuickTime™ and a LETTERS OF ADMINISTRATION TIFF (Uncompressed) decompressor are neededby to see this picture. It is the authority issued the court to a competent person to administer the estate of the deceased who died intestate.

LETTERS OF ADMINISTRATION WITH A WILL ANNEXED It is the authority issued by the court to a competent person to administer the estate if the executor named in the will refused to accept the office.

Section 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration Section 2. Contents of petition for letters of administration Section 3. Court to set time for hearing. Notice thereof Section 4. Opposition to petition for administration Section 5. Hearing and order for letters to issue Section 6. When letters of administration granted to any applicant CONTENTS OF PETITION FOR ISSUANCE OF LETTERS OF ADMINISTRATION: a. Jurisdictional facts; b. Names, ages and residences of heirs, and creditors; c. Probable value and character of property of estate; and d. Name of person for whom letters are prayed. NOTE: Essentially the same as contents of petition for probate, except: (1) latter has an additional

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 requirement (the last; see Rule 76); and (2) in the latter, no need to name creditors in the petition. GROUNDS FOR OPPOSITION: a. In Letters Testamentary: i. Incompetence b. In Letters of Administration: i. Incompetence ii. Preferential right of the heir under Rule 78

RULE 80 SPECIAL ADMINISTRATOR Section 1. Appointment of special administrator Section 2. Powers and duties of special administrator Section 3. When powers of special administrator cease; Transfer of effects; Pending suits SPECIAL ADMINISTRATOR He is appointed when there is a delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of the will. ORDER OF APPOINTMENT DISCRETIONARY The preference accorded by Rule 78 refers to the appointment of a regular administrator. Is the Order of Special Administrator appealable? No, such is an interlocutory order. Administrator May be subject of appeal One of the obligations is to pay the debts of the estate Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowed

Special Administrator Not subject of appeal Cannot pay debts of the estate Appointed when there is delay in granting letters testamentary or administration

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RULE 81 BONDS OF EXECUTORS AND ADMINISTRATORS Section 1. Bond to be given before issuance of letters; Amount; Conditions Section 2. Bond of executor where directed in will. When further bond required

Section 3. Bonds of joint executors administrators Section 4. Bond of special administrator

and

UNDERTAKINGS OF BOND OF EXECUTOR/ADMINISTRATOR: a. Make and return a complete inventory of the property of the estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months; b. To administer the property of the estate according to the Rules (if administrator) or according to the will (if executor); c. To render an account within 1 year and at any other time required by the court; and d. Perform all orders of the court.

RULE 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Section 1. Administration revoked if will discovered; Proceedings thereupon Section 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removal Section 3. Acts before revocation, resignation, or removal to be valid Section 4. Powers of new executor or administrator GROUNDS FOR REMOVAL OF EXECUTORS OR ADMINISTRATORS: a. Neglects to render account and settle the estate according to law; b. Failure to perform order or judgment of the court or duty prescribed by the rules; c. Absconds; d. Becomes insane; e. Incapable or unsuitable to discharge trust. Acts before revocation Lawful acts of an administrator or executor before the revocation, resignation or removal are valid unless proven otherwise.

RULE 83 INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. Inventory and appraisal to be returned within three months Section 2. Certain articles not to be inventoried Section 3. Allowance to widow and family

a. On the written application of executor or administrator b. Court having jurisdiction of the estate may c. Order any such surviving partner or partners

to: Inventory and appraisal must be made within 3 months from the grant of letters. PROPERTIES NOT TO BE INCLUDED IN INVENTORY AS ASSETS OF THE ESTATE: a. Wearing apparel of surviving spouse and minor children; b. Marriage bed and bedding; AND c. Provisions and articles which will necessarily be consumed in the subsistence of the deceased’s family. WHO ARE ENTITLED TO ALLOWANCE DURING PROCEEDINGS? a. Legitimate surviving spouse b. Children of the decedent (need not be minors, grandchildren sorry)

RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS 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 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS: a. Have access to partnership books and property; b. Maintain in tenantable repair the houses and other structures and fences belonging to the estate and deliver the same to the heirs and devisees when directed to do so by the court; QuickTime™ and a TIFF (Uncompressed) decompressor AND are needed to see this picture. c. Right to the possession and management of the real and personal estate so long as it is necessary for the payment of debt and expenses of administration. HOW RIGHT PARTNERSHIP ENFORCED:

TO HAVE ACCESS TO BOOKS AND PROPERTY

i. Freely permit the exercise of the rights ii. Exhibit the books, papers, and property d. Court may also punish any partner failing to do so for contempt

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS Section 1. Executor or administrator chargeable with all estate and income Section 2. Not to profit by increase or lose by decrease in value Section 3. When not accountable for debts due estate Section 4. Accountable for income from realty used by him Section 5. Accountable if he neglects or delays to raise or pay money 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 6. When allowed money paid as costs Section 7. What expenses and fees allowed executor or administrator NOT PROPER EXPENSES OF ADMINISTRATION WHICH ARE NOT CHARGEABLE TO ESTATE: a. Services rendered by administrator which are not beneficial to the estate in favor of an heir; b. Premiums for her/his bond; c. Expenses for repair of property of the estate being used and occupied by him; d. Expenses for keeping ordinary records and receipts involved in his administration; e. Losses incurred in conduct of business with use of funds of the estate. Page 140 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 OPTIONS OF ATTORNEY TO COLLECT ATTORNEY’S FEES FROM ESTATE: a. Sue administrator/executor in the latter’s personal capacity (who may then include any fees so paid in his account); OR b. File a petition in the testate/intestate proceedings asking the court, after notice to all interested persons, to allow his claim and to direct the executor/administrator to pay it as an expense of administration. Section 8. When executor or administrator to render account Section 9. Examination on oath with respect to account Section 10. Account to be settled on notice Section 11. Surety on bond may be party to accounting

RULE 86 CLAIMS AGAINST ESTATE Section 1. Notice to creditors to be issued by court Section 2. Time within which claims shall be filed NOTICE FOR FILING OF CLAIMS: a. Published once a week for 3 successive week in newspaper of general circulation; b. Posted: i. In 4 public places in PROVINCE of last residence of decedent; ii. In 2 public places in MUNICIPALITY of decedent’s last residence. CLAIMS WHICH MUST BE FILED WITH THE PROBATE COURT: a. All claims for money against decedent arising from contract; b. Claims for funeral expenses and for the last illness; c. Judgment for money. QuickTime™ and a TIME FOR FILING CLAIMS: TIFFOF (Uncompressed) decompressor needed to see this picture. Must be filed withinarethe time specified by the court in its notice, which period shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice.

HOWEVER, at any time before an order of distribution is entered, a creditor who failed to file his claim on time may, upon showing good cause, ask the court to allow him to file his claim. The court may

then allow him to file such claim within a time which shall not exceed 1 month. ALTERNATIVE REMEDIES AVAILABLE TO MORTGAGE CREDITOR UPON DEATH OF MORTGAGOR: a. Abandon security and prosecute claim in probate court; b. Foreclose mortgage judicially; and recover deficiency thru claim in probate court; c. Rely solely on mortgage or security and foreclose the same within statute of limitations, without the right to recover the deficiency PNB v. CA, et. al., G.R. No. 121597 (2001) Rule 89 § 7 (f) provides that if the court grants authority to mortgage property of the estate, it shall be valid as if the deed had been executed by the deceased in his lifetime. Thus, Rule 86 § 7 also applies as to the remedies of the mortgagee. Case law now holds that this rule grants to the mortgagee 3 distinct, independent and mutually exclusive remedies that can be alternatively pursued by the mortgage creditor for the satisfaction of his credit in case the mortgagor dies, among them: (1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; (2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and (3) to rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without right to file a claim for any deficiency. The plain result of adopting the last mode of foreclosure is that the creditor waives his right to recover any deficiency from the estate. The 3rd mode includes extrajudicial foreclosure sales; the result of extrajudicial foreclosure is that the creditor waives any further deficiency claim. Section 3. Publication of notice to creditors Publish the notice for 3 consecutive 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. Section 4. Filing copy of printed notice Section 5. Claims which must be filed under notice. If not filed, barred; exceptions Olave v. Carlos, 208 Phil 678 (1983)

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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. Claims which should not be filed under the Statute of Non-claims (ACTIONS WHICH DO NOT SURVIVE) 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; and 4. Judgment for money against decedent. ABSOLUTE CLAIM It is 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 It is a conditional claim or claim that is subject to the happening of a future uncertain event. Claims not yet due or contingent may be approved at their present value. A claim that is extinguished by death should be distinguished from an action which does not survive. A claim is extinguished by reason of death if the action is personal to either parties such as in cases of legal separation, annulment or declaration of nullity. Section 6. Solidary obligation of decedent Juacian v. Querol, 38 Phil 707 (1918) Claim should be filed against decedent as if he were the only debtor without prejudice on th 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. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Section 7. Mortgage debt due from estate ALTERNATIVE REMEDIS OF THE CREDITOR HOLDING A CLAIM SECURED BY A MORTGAGE OR OTHER COLLATERAL SECURITY 1. Abandon 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 (judicial or extrajudicial) 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: These remedies are alternative, the availment of one bars the availment of other remedies. Section 8. Claim of executor or administrator against an estate One of the instances where a special administrator is appointed. 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 or court; 2. serve a copy thereof on the executor or administrator; 3. if the claim is due, it must be supported by 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 affidavit stating the particulars thereof. Section 10. Answer of executor or administrator; Offsets Executor may file answer within 15 days from service of claim. Answer must set forth claims which decedent has against claimant or else it will forever be barred. Section 11. Disposition of admitted claim If executor or administrator admits claim, the heir, legatee or devisee may oppose it. Section 12. Trial of contested claim The court may refer the claim to a commissioner.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 13. Judgment appealable Judgment against 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 disapproving a claim is appealable.

approving

or

NOTE: The mode of appeal is record on appeal and must be filed within 30 DAYS from notice of judgment. Section 14. Costs

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Section 1. Actions which may and which may not be brought against executor or 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. Romualdez v. Tiglao, 105 SCRA 762 (1981) An action for revival of money judgment may be filed against the administrator to pre-empt prescription of judgment. Section 2. Executor or administrator may bring or defend actions which survive Section 3. Heir may not sue until have share QuickTime™ and a assigned TIFF (Uncompressed) decompressor

Section 5. Mortgage due estate may be foreclosed Section 6. Proceedings when property concealed, embezzled, or fraudulently conveyed PURPOSE: To elicit information or to secure evidence form those persons suspected as having possessed or having knowledge of properties belonging to deceased, or of having concealed, embezzled or conveyed away any properties of the deceased. GENERAL RULE: The probate court has no authority to decide whether or not the properties belong to the estate or to the person being examined since probate courts are courts of limited jurisdiction. Bernardo v. CA, GR No. 82483 (1990) EXCEPTIONS: 1. Provisional determination of ownership for inclusion in the inventory or 2. When the parties are all heirs and they voluntarily submitted the issue to the probate court and the determination of which will not prejudice the rights of 3rd person. 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. Section 10. When creditor may bring actions; Lien for costs

are needed to see this picture.

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. Section 4. Executor compound with debtor

or

administrator

may

REQUISITES BEFORE ACTION MAY BE FILED BY CREDITORS 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 Page 143 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

3. 4.

5. 6. 7.

conveyed such property that by law the conveyance would be void as against his creditors; the subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime; the executor or administrator has shown NO DESIRE TO FILE action the action or failed to institute the same within a reasonable time; LEAVE is granted by the court to the creditor to file the action; a BOND is filed by the creditor; the action by the creditor is in the NAME of the executor or administrator.

NOTE: However, the last three requisites are unnecessary where the grantee is the executor or administrator himself, in which event the action should be in the name of all creditors.

RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE Section 1. Debts paid in full if estate sufficient Writ of execution is satisfy debts. Court MORTAGE of the proceeds of which expenses.

not the proper procedure to must ORDER THE SALE OR properties of decedent, the will satisfy the debts and

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. 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 no sufficient, such part of the QuickTime™ and a estate as is not TIFF (Uncompressed) decompressor disposed of by will,areifneeded any, shall be appropriated for to see this picture. that purpose. Section 3. Personalty first chargeable for debts, then realty 2 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. ORDER OF PAYMENT OF DEBTS: a. From portion of property designated in the will; b. From personal property not disposed of by will; c. From real property not disposed of by will. Section 4. Estate contingent claims

to be

retained

to

meet

If the court is satisfied that contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay a portion equal to the dividend of the creditors. REQUISITES: 1. Contingent claim is duly filed; 2. Court is satisfied that the claim is valid; and 3. The claim has become absolute. Section 5. How contingent claim becoming absolute in two years allowed and paid; Action against distributes later If such contingent claim becomes absolute and is presented to the court or to the executor or administrator, within two years from the time limited for other creditors to present their claims, it may be allowed by the court. Jaucian v. Querol, supra 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. De Bautista v. De Guzman, 125 SCRA 682 (1983) 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 Section 5, Rule 88 of the Rules of Court. 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. Section 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession Section 7. Order of payment if estate is insolvent If estate is insolvent, as in liabilities are more than assets, Sec. 7 in relation to Arts. 1059 and 2239 to Page 144 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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 non-resident, how disposed of In case administration is taken in the Philippines of the estate of a person who was at the time of his debt an inhabitant of another country, and who died INSOLVENT, his estate in the Philippines shall be so disposed of that his 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. However, the benefit of Section 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. (Principle of Reciprocity) Section 11. Order for payment of debts Section 12. Orders relating to payment of debts where appeal is taken Section 13. When subsequent distribution of assets ordered Section 14. Creditors to be paid in accordance with terms of order Section 15. Time for paying debts and legacies fixed, or extended after notice, within what periods Need not exceed 1 year in the first instance. But court may extend on application of executor or administrator and after hearing QuickTime™ and and a notice thereof. TIFF (Uncompressed) decompressor are needed to see this picture.

Extension must not exceed six months for single extension. Whole period allowed to the original executor or administrator shall not exceed 2 years. Section 16. Successor of dead executor or administrator may have time extended on notice within certain period

Successor of deceased executor or administrator may be given an extension not to exceed 6 months.

RULE 89 SALES, MORTGAGES, ANG OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT 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 or for the preservation of the estate. Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted 1. If personal estate is NOT SUFFICIENT to pay debts, expenses of administration and legacies; 2. If sale of personal estate may injure the business or interest of those interested in the estate; 3. If testator has NOT made sufficient provision for payment of such debts, expenses and legacies; 4. If 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 or administrator; 2. written notice to person interested; and 3. hearing. NOTE: Assets in the hands of executor or administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends. Without notice and hearing the sale, mortgage or encumbrance is void. Notice is mandatory. Noncompliance therewith under the sale is null and void. Maneclang v. Baun, 208 SCRA 179 (1992) The reason behind this requirement is that the heirs are the presumptive owner. Since they succeed to all the rights and obligation of the deceased from the moment of the latter’s death, they Page 145 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 are the person directly affected by the sale or mortgage and therefore cannot be deprived of the property, except in the manner provided by law. Section 3. Persons interested may prevent such sale, etc., by giving bond Section 4. When court may authorize sale of estate as beneficial t interested person; Disposal of proceeds 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 or 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: 1. the disposition is not for any of the reasons specified by the rules; OR 2. under Section 3 of Rule 89, any person interested in the estate gives a bond conditioned to pay the debts, expenses of administration and legacies. Section 8. When a court may authorize conveyance or realty which deceased contracted to convey; Notice; Effect of deed Section 9. When court may authorize conveyance of lands which deceased held in trust

RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE Section 1. When order for distribution of residue QuickTime™ and a made TIFF (Uncompressed) decompressor are needed to see this picture.

LIQUIDATION This means the determination of all assets of the estate and payment of all debts and expenses. GENERAL RULE: ORDER OF DISTRIBUTION shall be made AFTER PAYMENTS of all debts, funeral expenses, expenses of administration, allowance of widow and inheritance tax is effected.

EXCEPTION: If the distributes 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 share of each heir. A separate action for the declaration of heirs is not necessary. When is title vested? From FINALITY of order of distribution. An order which determined the distributive shares of heirs is appealable. If not appealed, it becomes final. Timbol v. Cano, 1 SCRA 1271 (1961) 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. 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 such; and 2. The requirements as to notice and hearing upon such application have been fulfilled. PROHIBITION AGAINST OTHER COURTS

INTERFERENCE

BY

Timbol v. Cano, 1 SCRA 1271 (1961) As long as the order of distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs form bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed. The better practice, however, for the heir who has not received his share, is to demand his share through proper motion in the same probate or administrative proceedings, or for the reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REMEDY OF HEIR WHO HAS NOT RECEIVED HIS SHARE OF THE ESTATE: a. If excluded from the proceedings: move for reopening of the proceedings before the order declaring the same closed has become final and executory (after 30 days); b. If not excluded, but only has not yet received his distributive share under the project of partition: remedy is not to move for reopening (since proceedings are only deemed closed upon actual distribution), but to file a motion for execution within the reglementary period (5 years). Section 2. Questions as to advancement to be determined Section 3. By whom expenses of partition paid One of the instances where writ of execution may be issued. Section 4. Recording the order of partition of estate

RULE 91 ESCHEATS

the Civil Code, the STATE is the LAST HEIR of the decedent. Who files? Solicitor General or his representative in behalf of the Philippines. Where to file? RTC of last residence or of location of this estate in the Philippines if he is a non-resident. Section 2. Order for hearing IF 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 ENTYR OF ORDER; 2. Direct the publication of a copy of the order – at least once a week for 6 CONSECUTIVE WEEKS. REQUISITES: 1. publication of the order; 2. person died intestate; 3. he is seized of real or personal property in the Philippines; 4. he left no heir or person entitled to such property; 5. there is no sufficient cause to the contrary. Section 3. Hearing and judgment

Section 1. When and by whom petition filed ESCHEAT This is a proceeding whereby the real and personal property of a deceased person in the Philippines, who dies without leaving any will or legal heirs, become the property of the State upon his death. REQUISITES FOR PETITION FOR ESCHEAT a. Person died intestate; b. Person died leaving no heirs; AND c. Person died leaving properties in Philippines

the

3 INSTANCES OF ESCHEATS 1. When a person dies intestate leaving no heir but leaving property in the (Section QuickTime™ andPhilippines a TIFF (Uncompressed) decompressor 1); are needed to see this picture. 2. Reversion Proceedings – Sale in violation of the Constitutional provision; and 3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated). What is the basis of the state’s right to receive property in escheat? Order of succession under

DISPOSITION OF ESCHEATED PROPERTY: a. If real property – to municipalities or cities located; b. If personal property – (1) To city or municipality where decedent last resided in Phils; (2) If decedent never resided in Phils, then to municipality or city where located. 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. Section 4. When and by whom claim to estate filed Any devisee, legatee, heir, widow/er, or other person entitled to the estate may file a claim with the court WITHIN 5 YEARS FROM DATE OF JUDGMENT, otherwise forever barred. Section 5. Other actions for escheat

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Actions for reversion of property alienated in violation of Constitution or any statute. These shall be governed by Rule 91. However, the action must be instituted in the province where the land lies in whole or in part.

KINDS OF GUARDIANS: A. According to scope: 1. General – over the person of the ward or over his property 2. Limited – over the property only.

PERIOD: Within 5 years from the date of judgment; (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.)

B. According to Constitution: 1. General Guardian; 2. Legal Guardian – without judicial appointment; 3. 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.

By whom: person with interest

Section 2. Meaning of word “incompetent”

Can court convert escheat proceedings into ordinary special proceedings or vice-versa? NO. This is not allowed for the two actions have different requirements in acquiring jurisdiction. In special proceedings, publication is once a week for 3 weeks while in escheat, once a week for 6 weeks.

INCOMPETENT includes: 1. those suffering from penalty of civil interdiction; 2. hospitalized lepers; 3. prodigals; 4. deaf and dumb who are unable to read and write; 5. those of unsound mind though they 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 or manage their property.

NOTE: Escheat under the Unclaimed Balance Law must be filed in RTC of the place where the dormant deposits are found.

GUARDIANSHIP Guardianship of minors is now governed by the Rule on Guardianship of Minors (A.M. No. 03-0205-SC) which took effect on May 1, 2003. While, guardianship of incompetents is still governed by the provisions of the Rules of Court on Guardianship (Rule 92 to Rule 97)

RULE 92 VENUE Section 1. Where to institute proceedings QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

INCOMPETENTS – RTC of his residence or where his property is located in case of non-residents (Sec. 1) MINORS – Family Court of his residence or where his property is located in case of non-resident (Sec. 3, A.M. No. 03-02-05-SC) “Residence” means “domicile”.

Section 3. Transfer of Venue

RULE 93 APPOINTMENT OF GUARDIANS Section 1. Who may petition for appointment of guardian for resident MINOR (a) any relative; or (b) other person on behalf of a minor; or (c) the minor himself if 14 years of age or over; or

(d) the Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who

INCOMPETENT (a) any relative; or (b) friend; or (c) other person on behalf of the resident incompetent who has no parents or lawful guardian; or (d) the Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper (Sec. 1); or Page 148 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 needs to be hospitalized (Sec. 2 of A.M. No. 03-02-05SC)

letters of guardianship are prayed. (Sec. 7 of A.M. No. 03-02-05SC) (e) any one interested in the estate of a nonresident incompetent (Sec. 6)

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. Section 2. Contents of Petition MINOR (a) The jurisdictional facts; (b) the name, age and residence of the prospective ward;

(c) the ground rendering the appointment necessary or convenient; (d) the death of the parents of the minor or the termination, deprivation or suspension of their parental authority; (e) the remarriage of the minor’s surviving parent;

INCOMPETENT (a) The jurisdictional facts; (b) The incompetency rendering the appointment necessary or convenient; (c) the probable value and character of his estate; (d) the names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care; (e) the name of the person for whom letters of guardianship are prayed. (Section 2 of Rule 93) (f) any one interested in the estate of a nonresident incompetent (Section 6)

(f) the names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him QuickTime™ and a TIFF (Uncompressed) decompressor in their care and are needed to see this picture. custody; (g) the probable value, character and location of the property of the minor; and (h) the name, age and residence of the person from whom

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. Section 3. Court to set time for hearing; Notice thereof Notice of date and place of hearing to be given to all persons named in the petition residing in the province, and to the minor himself if over 14 (NOTE: not “14 or over”). There is NO requirement for PUBLICATION only NOTICE except in case of non-resident minor or incompetent. However, service of NOTICE upon minor if above 14 years of age or upon incompetent is mandatory and jurisdictional. If the person is insane, service of notice upon the Director of Hospital where he is hospitalized is sufficient. Section 4. Opposition to petition GROUNDS: 1. Majority of alleged minor; 2. Competency of alleged incompetent; 3. Unsuitability of the persons for whom letters are prayed. PROCEDURE OF GUARDIANSHIP PROCEEDINGS 1. filing of petition; 2. court shall set the case for hearing; 3. cause notices to be served to the persons mentioned in the petition, including the minor, if above 14 years of age; 4. court shall receive evidence; 5. declaration of the propriety of the petition; 6. issue letters of guardianship. Section 5. Hearing and order for letters to issue Section 6. When and how guardian for nonresident appointed; Notice Any relative, friend or any one interested in the estate of a person liable to be put under guardianship may Page 149 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 file a petition for guardianship over the property of such person. Notice shall otherwise.

be

given

through

publication

or

Bond may be proceeded against in the same or separate proceeding for the use and benefit of the ward, or of any other person legally interested in the estate.

Section 7. Parents as Guardians 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.

RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD Section 1. Petition of guardian for leave to sell or encumber estate

RULE 94 BONDS OF GUARDIAN Section 1. Bond to be given before issuance of letters; Amounts; Conditions Before an appointed guardian enters upon the execution of his trust, he shall give a BOND. CONDITIONS: 1. To make and return to the court, within three (3) months, a true and complete INVENTORY of all the estate, real and personal, 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 QuickTime™ and a TIFF (Uncompressed) decompressor hands, or due such settlement, to are from needed tohim see thison picture. the person lawfully entitled thereto; 4. To PERFORM all orders of the court by him to be performed. Section 2. When new bond may be required and old sureties discharged Section 3. Bonds to be filed; Actions thereon

GROUNDS: 1. when income of estate is insufficient to maintain the ward and his family; or 2. when income of estate is insufficient to maintain and educate ward when a minor; or 3. when it appears that it is for the benefit of the ward. REQUIREMENTS: 1. petition must be verified; 2. notice must be give to the next of kin; and 3. hearing so that they may show cause why petition should not be granted. Section 2. Order to show cause thereupon NEXT OF KIN This 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. Notice to next of kin and interested persons is JURISDICTIONAL. Lindain v. CA, GR No. 95305 (1992) 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, or alienate, the property of said minor without judicial approval. Section 3. Hearing on return of order; Costs Section 4. Contents of order for sale encumbrance, and how long effective The Order of Sale must specify the grounds.

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or

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Duration of the order for 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.

RULE 97 TERMINATION OF GUARDIANSHIP

The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court.

Section 1. Petition that competency of ward be adjudged and proceedings thereupon

Section 5. Court may order investment of proceeds and direct management of estate

Petition shall be verified by oath and shall state that such person is then competent.

RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS Section 1. To what guardianship shall extend Section 2. Guardian to pay debts of ward Section 3. Guardian to settle accounts, collect debts and appear in actions for ward Section 4. Estate to be managed frugally and proceeds applied to maintenance of ward Section 5. Guardian may be authorized to join in partition proceedings after hearing Section 6. Proceeding when persons suspected of embezzling or concealing property of ward Section 7. Inventories and accounts of guardians, and appraisement of estate Section 8. When guardian’s accounts presented for settlement, expenses and compensation allowed GENERAL POWERS AND DUTIES OF GUARDIANS: 1. have the care and custody of the person of the ward, and the management of the estate only, as the case may be (Sec. 1); 2. pay the debts of the ward (Sec. 2); 3. settle accounts, collect debts and appear in actions for ward (Sec. 3); 4. manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4); 5. render verified inventory within 3 months after his appointment and annually thereafter upon application of interested (Sec. 7); and QuickTime™persons and a TIFF (Uncompressed) decompressor 6. render to court for toits an accounting are needed see approval this picture. of the property for 1 year from his appointment and every year thereafter (Sec. 8). Every guardian, other than the ward’s parents, shall be allowed the amount of his reasonable expenses, and compensation which shall not exceed 15% of the NET income of the estate.

GROUNDS FOR TERMINATION MINOR INCOMPETENT (a) The ward has come of (a) Competency of the age; or ward has been judicially determined; or (b) The ward has died; or (b) Guardianship is no longer necessary; or (c) Death of guardian (c) Death of guardian; or (Sec. 25, A.M. No. 0302-05-SC) (d) Death of ward. Section 2. When guardian removed or allowed to resign 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 abovementioned grounds are EXCLUSIVE . Section 3. Other termination of guardianship Section 4. Record to be kept by Justice of the Peace or Municipal Judge Section 5. Service of Judgment SALIENT FEATURES AND SPECIAL RULES FOUND IN THE RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003) A. Grounds for Petition (Sec. 4) 1. continued absence, or incapacity or death 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; Page 151 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. when the best interest of the minor so requires. B. Considerations in Appointing Guardians (Sec. 5) 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; and 7. ability to manage the property of the minor C. Who may be appointed guardian of the person or property, or both, of a minor (Sec. 6) 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: 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 twenty-one 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. D. Case Study Report (Sec. 9) The court shall order a social worker to conduct a case study of the minor and all prospective guardians and submit report and recommendation to the court for its guidance before the scheduled hearing. E. Bond of parents as guardian of property of minor (Sec. 16) QuickTime™ and a TIFF (Uncompressed) decompressor

If the market value of tothe property or the annual are needed see this picture. income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved. F. Removal or Resignation of Guardian (Sec. 24) No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. G. Grounds for termination of Guardianship (Sec. 25) The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has COME OF AGE or has DIED. The guardian shall notify the court of such fact within 10 days of its occurrence.

RULE 98 TRUSTEES EXECUTOR/ ADMINISTRATOR 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.

GUARDIAN

TRUSTEE

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 (minor).

Court which has jurisdiction is MTC or RTC if appointed to carry into effect provisions of a will; if trustee dies,

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

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 or property or if sale will be beneficial to the heirs, legatees or devisees. Order of sale has no time limit

Appointed by the court to settle estate of decedent.

May sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate the minor; the sale or encumbrance is for the benefit of ward upon order of the court. Order of sale is valid for only 1 year after grant of the same. Appointed as guardian.

Not exempted Must always from filing bond file a bond. even if such exemption is provided in the will (bond is only conditioned upon QuickTime™ and a payment of debts.TIFF (Uncompressed) decompressor are needed to see this picture.

Services of executor or administrator are terminated upon payment of debts and 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

resigns or removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee. May sell or encumber property of estate held in trust if necessary for expedient upon order of the court.

Order of sale has no time limit Appointed to carry into effect the provisions of a will or written instrument (contractual trust). May be exempted from filing bond if provided in the will or if beneficiaries requested exemption. Trusteeship is terminated upon turning over the property to beneficiary after expiration of

Must pay the debts of the estate.

the case of an incompetent (need court order for the latter).

trust (period may be provided for in the will or trust contract).

Must pay the debts of the ward.

No obligations to pay debts of beneficiary or trustor.

Section 1. When trustee appointed VENUE FOR PETITIONS FOR APPOINTMENT OF TRUSTEES: a. If trustee is necessary to carry into effect the provisions of a will, then in the RTC in which the will was allowed (assuming allowed in the Philippines); b. Otherwise, then in the RTC of any province in which some property affected by the trust is situated A TRUSTEE IS NECESSARY TO CARRY INTO EFFECT: 1. A will where 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). Section 2. Appointment and powers of trustee under will, executor or former trustee need not administer trust No persons succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust. Section 3. Appointment and powers of new trustee under written instrument 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.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When a trust is created abroad for property in the Philippines, judicial approval is still needed though 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 decline to accept the trust. HOWEVER, HE MAY BE EXEMPTED FROM BOND WHEN REQUESTED BY: 1. Testator; 2. All persons beneficially interested in the trust. However, the court may cancel such exemption anytime.

3. Hearing. Who may petition? Parties beneficially interested. GROUNDS 1. removal appears essential in the interest of petitioners; 2. insanity; 3. incapability of discharging trust; 4. unsuitability. Section 9. Proceedings for sale or encumbrance of trust estate Rules on Sale and Encumbrance of Trust Estate shall conform as nearly as may be to the provisions on Sale and Encumbrance by Guardians.

Section 6. Conditions included in bond THE FOLLOWING CONDITIONS SHALL BE DEEMED TO BE A PART OF THE BOND WHETHER WRITTEN THEREIN OR NOT: 1. That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 2. 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; 3. That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order; 4. That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in a his hands, or due QuickTime™ and TIFF (Uncompressed) decompressor from him on are such neededsettlement, to see this picture. to the person or persons entitled thereto. Section 7. Appraisal; Compensation of trustee Section 8. Removal or resignation of trustee REQUISITES 1. Petition filed by parties beneficially interested; 2. Notice to trustee; and

ADOPTION The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and Inter-country Adoption Act of 1995. Sec. 6 of Rule 99 was 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. 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. 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. WHAT DOES THE COURT DETERMINE IN ADOPTION CASES? 1. capacity of the adopters; 2. whether the adoption would be for the best interest of the child. Teotico v. Del Val, L-18753 (1956) Adoption is strictly personal between the adopter and the adopted. JUDICIAL ADOPTION

EXTRAJUDICIAL ADOPTION

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Proper in domestic adoption. Under the jurisdiction of the Family Court (where adopter resides).

Trial custody is in the Philippines for 6 months (but court may reduce period or exempt parties from trial custody). Petition for adoption may include prayer for change of name, rectification of simulated birth or declaration that child is a foundling, abandoned, dependent or neglected child. Legitimate or illegitimate child of a spouse or even a person who is of legal age may be adopted. Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are not required to be annexed in the petition. Petition must be published for 3 successive weeks in a newspaper of general circulation in the province or city where court is situated. Application is through a petition with the FC.

Proper in inter-country adoption. Under the jurisdiction of the Inter-Country Adoption Board (but a petition may also be filed with the Family Court [where adoptee resides] which will turn it over to ICAB). Trial custody is in the country of adopter and is mandatory before a decree of adoption is issued (expenses are borne by the adopter). Petition for adoption only.

Only a child legally available for domestic adoption may be the subject of inter-country adoption. Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed in the petition. No publication requirement.

Application may be through agency in foreign country and then QuickTime™ and a to ICAB. TIFF (Uncompressedsubmit ) decompressor this picture. Decree of adoption are needed to seeDecree of adoption issued by FC which has issued by a foreign jurisdiction over the case. court.

RULES ON DOMESTIC ADOPTION (Secs. 1-25, A.M. No. 02-6-02)

WHO MAY ADOPT (Sec. 4) 1. Any Filipino Citizen – (a) Of legal age; (b) In possession of full civil capacity and legal rights; (c) Of good moral character; (d) Has not been convicted of any crime involving moral turpitude; (e) Emotionally and psychologically capable of caring for children; (f) In a position to support and care for his/her children in keeping with the means of the family; and (g) At least 16 years older that the adoptee. EXCEPTIONS: (1) If the adopter is the biological parent of the adoptee (2) If the adopter is the spouse of the adoptee’s parent (3) If the adopter is the sibling of the adoptee (Article IV, §7 of the IRR) 2. Any alien possessing the same qualifications above; provided: (a) That his/her country has diplomatic relations with the Philippines; (b) That he/she has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption; (c) Maintains residence until the adoption decree is entered; (d) Certified to have legal capacity to adopt; by his/her country; and (e) That his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. 3. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. The requirement of 16 YEARS DIFFERENCE between the adopter and the adoptee is NOT applicable if the adopter is: (a) the biological parent of the adoptee; (b) the spouse of the adoptee’s parents. The requirement on residency and certification of alien’s qualification to adopt may be WAIVED for the following: (a) The adopter is a former Filipino citizen who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity;

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (b) One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; (c) One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th civil degree of consanguinity or affinity or the Filipino spouse. WHO MAY BE ADOPTED (Sec. 5) 1. Any person below eighteen (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; 7. A child not otherwise disqualified by law or these rules. “A child legally available for adoption” refers to a child who has been voluntarily committed to the DSWD or to a duly licensed and accredited childplacing or child caring agency, freed of the parental authority of his biological parents. 2 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, A.M. No. 02-1-19-SC) 2. Judicial/Involuntary – Follow the procedure is QuickTime™ and a TIFF (Uncompressed) decompressor A.M. No. 02-1-19-SC. are needed to see this picture.

3. Any child placement or child caring agencies. VENUE (Sec. 4b): Family Court of the province or city in which the parent or guardian resides or where the child is found. WHO SHALL BE SUMMONED (Sec. 4c) 1. Parent or guardian of the child; 2. Office of the public prosecutor. WHEN MAY SUMMONS NOT BE ISSUED (Sec. 4d) 1. If it appears from the petition that both parents of the child are dead; or 2. That neither parent can be found in the province or city where the court is located and the child has no guardian residing therein. In case no summons is issued, the court has the duty of appointing a guardian ad litem and shall proceed with the hearing of the case with due notice to the provincial or city prosecutor. There is no answer here. Only hearing is required. CHILD’S RIGHT TO COUNSEL (Sec. 4g) The court, upon request of the child capable of forming his own views or upon request of his guardian ad litem, shall appoint a lawyer to represent him in the proceedings. DUTY OF THE PUBLIC PROSECUTOR (Sec. 4h) The provincial or city prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is justification for the declaration of dependency, abandonment or neglect. JUDGMENT (Sec. 4j) If, after hearing, the court shall find the child to be dependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of the DSWD or any child placement or child caring agency. However, if the court finds, that the abandonment or neglect of the child may be remedied, the child may be allowed to stay in his home under the care and custody of his parent, subject to the supervision of the DSWD. End of A.M. No. 02-1-19-SC

RE: PROPOSED RULES ON COMMITMENT OF CHILDREN (A.M. No. 02-1-19-SC) WHO MAY FILE (Sec. 4a) 1. The Secretary of the DSWD; 2. His authorized representative;

GENERAL RULE: Husband and wife shall jointly adopt. EXCEPTIONS:

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. If one spouse seeks to adopt the legitimate son/daughter of the other; 2. If one spouse seeks to adopt his/her own illegitimate son/daughter; 3. If the spouses are legally separated from each other. VENUE (Sec. 6): Family Court prospective adoptive parents reside.

where

the

CONTENTS OF THE PETITION (Sec. 7) 1. If the adopter is a Filipino citizen, the petition shall allege the following: (a) The jurisdictional facts; (b) 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 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 Sec. 4 of RA No. 8552. 2. If the adopter is an alien, the petition shall allege the following: (a) The jurisdictional facts; (b) Sub-paragraph 1(b) above; (c) That his country has diplomatic relations with the Republic of the Philippines; (d) 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 (e) That he has been living in the Philippines for at least 3 continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

The requirement of certification of the alien’s qualification to adopt in his country and his residency may be waived if the alien: (1) is a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or (2) seeks to adopt the legitimate child of his Filipino spouse; or

(3) 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. 3. 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. 4. If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if: (a) one spouse seeks to adopt the legitimate child of the other; or (b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or (c) if the spouses are legally separated from each other. 5. 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. 6. If the petition prays for a change of name, it shall also state the cause or reason for the change of name. In all petitions, it shall be alleged: (a) 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; (b) That the adoptee is not disqualified by law to be adopted; (c) The probable value and character of the estate of the adoptee; (d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. Petition shall be verified 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. A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ANNEXES TO THE PETITION (Sec. 11) 1. Birth, baptismal or founding certificate, as the case may be, and school records showing the name, age and residence of the adoptee; 2. Affidavit of consent of the following: (a) The adoptee, if ten (10) years of age or over; (b) The biological parents of the child, if known, or the legal guardian, or the childreplacement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; (d) The illegitimate children of the adopter living with him who are ten (10)years of age or over; and (e) The spouse, if any, of the adopter or adoptee. 3. Child study report on the adoptee and his biological parents; 4. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt to his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); 5. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by the Inter-Country Adoption Board; and 6. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

the adoptee has been known which shall be stated in the caption; (2) The purpose of the petition; (3) The complete name which the adoptee will use in the petition is granted (4) The date and place of hearing which shall be set within six (6) months from the date of issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a week for three successive weeks in a newspaper of general circulation in the province or city where the court is situated; Provided, that in case of application for change of name, the date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election. The newspaper shall be selected by raffle under the supervision of the Executive judge. (5) A directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the Department to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filling of the latter; and (6) A directive to the social worker of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. B. CHILD & HOME STUDY REPORTS (Sec .13) - 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 - social worker may make recommendations to the court if he finds some grounds to deny the petition.

PROCEDURE A. ORDER OF HEARING (Sec 12) - Must be published at least once a week for 3 CONSECUTIVE WEEKS. - At the discretion of the court, copies of the order of hearing shall be furnished to the office of the Sol.Gen. through the provincial or city prosecutor, the DSWD and the QuickTime™ and a TIFF (Uncompressed) decompressor biological are parents the adoptee, IF needed to see thisof picture. KNOWN. - If a change in the name of the adoptee is prayed for in the petition, notice to the Sol.Gen. shall be MANDATORY.

C. HEARING (Sec 14) - To held within 6 MONTHS from the date of issuance of the order 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

Contents of Order: (1) The registered name of the adoptee in the birth certificate and the names by which

The petitioner and the adoptee must personally appear and the former must testify in court. Page 158 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. Adopters shall have reciprocal tights of succession without distinction from legitimate filiation.

D. SUPERVISED TRIAL CUSTODY (STC) (Sec.15) Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a period of at least six (6) months. Reason: so the parties will adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker of the court, the Department, or the social service of the local government unit, or the child-placement or child-caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter. NOTE: Court may reduce or exempt parties from Supervised Trial Custody. GENERAL RULE: Alien complete 6 MONTHS STC

adopter

All hearings and records are confidential. (Sec. 18)

INTER-COUNTRY ADOPTION Where to file Petition (Sec. 28) 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. 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 same as with RA 8552

must

EXCEPTION: Same as Exemptions from requirements of residency and certification E. DECREE OF ADOPTION If issued, this will take effect as of the date of filing of the original petition. 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. NOTE: The new birth certificate to be issued to the adoptee shall not bear any notation that QuickTime™ and a TIFF (Uncompressed) decompressor it is and amended issue are needed to see this picture. EFFECTS OF ADOPTION 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;

WHO MAY BE ADOPTED (Sec. 29) Only a child legally available for domestic adoption may be the subject of inter-country adoption. A child under the Inter-Country Adoption Act is defined as any person below fifteen (15) years of age. CONTENTS OF PETITION (Sec. 30) PETITIONER MUST ALLEGE: (a) His age and the age of the child to be adopted, showing that he is at least twentyseven (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; (b) 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; (c) 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; (d) That he has not been convicted of a crime involving moral turpitude, (e) That he is eligible to adopt under his national law, Page 159 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (f) 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, (g) 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 Republic Act No. 8043, (h) 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 (i) That he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic Act. No. 8043 and in all other applicable Philippine laws. ANNEXES (Sec. 31) (a) Birth certificate of petitioner; (b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; (c) Sworn statement of consent of petitioner’s biological or adopted children above ten (10) years of age; (d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; (e) Income tax returns or any authentic document showing the current financial capability of the petitioner; (f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner; (g) 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; (h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

RESCISSION OF ADOPTION Under the Domestic Adoption of 1998, the ADOPTER CAN NO LONGER RESCIND the adoption, he can he adoptee in accordance with the provisions of the Civil Code.

RESCISSION relates only as to the date of judgment. Hence, vested rights prior to rescission should be respected. Who files? (Sec. 19) 1. ADOPTEE (a) Over 18 years of age or (b) If minor with assistance of DSWD 2. GUARDIAN or COUNSEL, if over 18 but incapacitated. Lahom v. Sibulo, G.R. No. 143989 (2003) The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption. GROUNDS (Sec. 19) 1. Repeated physical violation 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 VENUE (Sec. 20) FAMILY COURT of the city or province where the adoptee resides. PERIOD WITHIN WHICH TO FILE VERIFIED PETITION (Sec. 21) Within 5 YEARS from reaching 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) EFFECTS OF JUDGMENT OF RESCISSION 1. Parental authority of biological parent or legal custody of DSWD will be resorted; 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 founding certificate; 6. Civil registrar will reinstate his original birth or founding certificate. Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption. Page 160 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Reaches the record; concerned with errors committed by a court. RULE 101 PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS Section 1. Venue; Petition for commitment Venue: RTC of province where the person alleged to be insane in found. Who files a petition for commitment of an insane person? Director of Health with assistance of city or provincial fiscal 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 his is opposed to his being taken to a hospital or asylum.

Direct attack. Failure of respondent to file comment will not be punished by contempt and will not even be declared in default. Court and prevailing party are named as respondents.

Reaches the body but not the record; inquiry on the legality of the detention. Collateral attack. Failure to file return constitutes contempt (indirect).

Respondent detainer.

is

the

WRIT OF HABEAS CORPUS The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. Section 1. To what habeas corpus extends

CASES PETITION SHOULD BE FILED: IN ALL CASES WHERE IN THE OPINION OF THE SECRETARY OF HEALTH, SUCH CONFINEMENT IS: a. for the public welfare b. for the welfare of a person who in the Secretary’s judgment is insane, and such person or the one having charge of him is opposed to his being taken to a hospital or other placed for the insane.

THE WRIT OF HABEAS CORPUS MAY BE OBTAINED IN TWO INSTANCES: 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.

Section 2. Order for hearing Section 3. Hearing and judgment Section 4. Discharge of insane Section 5. Assistance of fiscal in the proceeding

WHEN THE WRIT MAY BE AVAILED OF AS A CONSEQUENCE OF A JUDICIAL PROCEEDING: 1. There has been a deprivation of a constitutional right resulting in restraint of person; 2. The court had no jurisdiction to impose the sentence; 3. An excessive penalty has been imposed, the sentence being void as to the excess; 4. Where the law is amended, as when the penalty is lowered.

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 my be released without danger. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

RULE 102 HABEAS CORPUS CERTIORARI, PROHIBITION AND MANDAMUS Special civil action under Rule 65.

HABEAS CORPUS

Special proceeding.

Actual physical restraint is not required; any restraint which will prejudice freedom of action is sufficient.

NATURE Alimpoos v. CA, 106 SCRA 159 (1981) Petition for habeas corpus is LIKE A PROCEEDING IN REM because it 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. It is also instituted for the Page 161 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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. PURPOSE Moncupa v. Enrile, 141 SCRA 233 (1986) 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. Villavicencio v. Lukban, 39 Phil 778 (1919) 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. GROUNDS FOR SUSPENSION OF THE WRIT UNDER THE CONSTITUTION: 1. invasion, when public safety requires; 2. rebellion, when public safety requires. 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 restraint. (Villavicencio v. Lukban, supra) VOLUNTARY RESTRAINT GENERAL RULE Writ not available if restraint is voluntary.

Habeas Corpus can never be a substitute for appeal. Galvez, et.al. v. CA, et.al., 237 SCRA 685 (1994) Whether the petition for the writ of habeas corpus may be properly filed together with the petition for certiorari and mandamus. The Court ruled that 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. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter. The person on bail is not entitled to habeas corpus because his detention is legal and technical. Section 2. Who may grant the writ The RTC, CA and SC have concurrent jurisdiction to issue writs of habeas corpus. The MTC can issue the writ in case there is no available RTC judge. Hierarchy of courts is not observed. Sandiganbayan may issue writs of habeas corpus only if it is in aid of its appellate jurisdiction. COLLEGIATE COURT Enforceable throughout the Philippines. Returnable to any court.

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 the custody of a 3rd person on her own volition. QuickTime™ and a

TIFF (Uncompressed) Voluntariness is viewed from decompressor the point of view of the are needed to see this picture. 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 of facts/appreciation of law.

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

JURISDICITON 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

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 separate petition for custody because the issue can be ventilated in the petition for writ. REQUISITES FOR THE ISSUANCE OF THE WRIT IN CASES WHERE THE RIGHTFUL CUSTODY OVER THE PERSON OF A MINOR IS WITHHELD FROM THE PERSON ENTITLED THERETO: 1. that the petitioner has the right to the custody over the minor; 2. that the rightful custody of the minor is being withheld from the petitioner by the respondent; 3. that it is to the best interest of the minor concerned to be in the custody of the petitioner and not that of respondent. (Sombong v. CA, January 31, 1996) Section 3. Requisites of application therefor VERIFIED PETITION MUST SET FORTH: 1. that the person in whose behalf the application is made is imprisoned or restrained of his liberty; 2. The officer or name of the person by whom he is imprisoned or restrained; 3. Place where he is imprisoned or restrained, if known; 4. Copy of the commitment or cause of the detention, if it can be procured without impairing the efficiency of the remedy (if no legal authority for imprisonment, such fact shall appear). Section 4. When writ not allowed or discharge authorized 1. If the person is in 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 2. If jurisdiction appears after the writ is allowed; 3. If the person is charged with or convicted of an offense in the Philippines Supervening Events May Bar Release Even if the arrest of a person illegal, supervening QuickTime™ is and a TIFF (Uncompressed) decompressor events may bar release from custody. are needed or to seedischarge this picture. What is to be inquired into is the legality of detention as of, at the earliest, the filing of the application for the writ of habeas corpus. (Velasco vs. CA, July 7, 1995). Section 5. When the writ must be granted and issued

PRELIMINARY CITATION Where a person detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in her/his custody to show cause why the writ should not issue. PEREMPTORY WRIT It is issued when the cause of detention appears to patently illegal and the non-compliance therewith is punishable Elepante v. Madayag, G.R. No. 92586 (1991) An appeal in Habeas Corpus proceedings should be perfected (i.e. by filing Notice of Appeal) within 48 hours, compliance with which is mandatory and jurisdictional. In counting the 48 hours, the date on which the decision was promulgated is not counted, and the period starts to run the following day. NOTE: Please try to read the PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS which shall apply to petitions for custody of minors and writs of habeas corpus in relation to minors. (A.M. No. 03-04-04-SC, effective 15 May, 2003) Tung Chin Hui v. Rodriquez, G.R. No. 141767 (2001) P’s confinement is in accord with § 37 (a) of the Philippine Immigration Act of 1940, as amended, which reads as follows: “§ 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of another officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien: xxx (7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant. Section 6. To whom writ directed, and what to require DIRECTED TO OFFICER AND COMMANDS HIM TO: 1. Produce the body of person before the court ; and 2. Show cause of the imprisonment or restraint.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 7. How prisoner designated and writ served Section 8. How writ executed and returned 1. Convey the person so imprisoned before the judge, unless from sickness or infirmity such person cannot, without danger brought before the court. 2. Make the return of the writ together with the day and the cause of caption or restraint.

Section 14. When person lawfully imprisoned recommitted, and when let to bail Section 15. When prisoner discharged if no appeal If one is unlawfully imprisoned, court shall order his discharge but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If person detaining him does not appeal, the prisoner shall be released.

Section 9. Defect of form NO WRIT CAN BE DISOBEYED FOR DEFECT IN FORM IF IT SUFFICIENTLY STATES: 1. Person In whose custody or under whose restraint is held; and 2. Court or judge before whom he is to be brought. Section 10. Contents of return (a) Whether he has or has not the party in his custody or power , or under restraint; (b) 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; (c) If the party in his custody or power or is restraint by him, and is not produced, particularly the nature and gravity o f the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; (d) 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 that time, for what cause , and by what authority such transfer was made. Section 11. Return to be signed and sworn to Section 12. Hearing on return; Adjournments Section 13. When the return evidence, and when only a plea If detention is by public QuickTime™ authority, and a the petitioner has TIFF (Uncompressed) decompressor burden of proof to show that restraint was illegal. are needed to seethe this picture.

PERIOD OF APPEAL Within 48 hours from notice of the judgment or final order appealed from (Section 39 BP 129). Form of appeal is NOTICE OF APPEAL. Section 16. Penalty for refusing to issue writ, or for disobeying the same Section 17. Person discharged not to be again imprisoned We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle, the moment a person is acquitted on a criminal charge he can no longer be detained or rearrested for the same offense. (Moncupa vs. Enrile, supra) Section 18. When prisoner may be removed from one custody to another 1. By legal process; 2. Prisoner is delivered to a 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 necessary or public calamity. Section 19. Record of writ, fees and costs When does court acquire jurisdiction over person of respondent? 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.

If the 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.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE ON CUSTODY OF MINORS AND WRIT OF HABAES CORPUS IN RELATION TO THE CUSTODY OF MINORS (A.M. No.03-04-04-SC) WHO MAY FILE PETITION?(Sec. 2) A verified petition for the rightful custody of a minor may be filed by any person claiming such right. WHERE TO FILE PETITION? Family courts in the province or city where the petitioner resides or where the minor may be found. CONTENTS OF A VERIFIED PETITION (Sec. 4) 1. The personal circumstances of the petitioner and respondent; 2. The name, age and present whereabouts of the minor and his or her relationship to the petitioner or respondent; 3. The material operative facts constituting deprivation of custody; 4. Such other matters which are relevant to the custody of minor. Motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Respondent must file verified answer within 5 days from service of summons and copy of petition. PROVISIONAL ORDER AWARDING CUSTODY (Sec. 13) As far as practicable, the following order of preference shall be observed in the award of custody: 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, grandparent chosen by the minor over seven years 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; QuickTime™ and a TIFF (Uncompressed) decompressor 5. The actual custodian ofthisthe minor over twenty are needed to see picture. one (21) years of age unless former is unfitor disqualified; or 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

TEMPORARY VISITATION RIGHTS (SEC. 15) The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodian parent or parents unless the court finds said parent or parents unfit or disqualified. HOLD DEPARTURE ORDER (Sec. 16) 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. The Court, motu prorio or upon application under oath, may issue and ex parte hold departure order. PETITION OF WRIT OF HABEAS CORPUS (Sec. 20) The petition shall be filed where the Family Court where petitioner resides or where the minor may be found The petition shall be enforceable within its judicial region to which the Family Court belongs. 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 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.

RULE 103 CHANGE OF NAME Section 1. Venue RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. Section 2. Contents of petition THE PETITION SHALL SET FORTH: 1. That petitioner is a bona fide resident of the province for at least 3 years prior to the date of the filing of the petition 2. Cause for which the change of name is sought 3. Name asked for (§2) 4. All names and aliases of petitioner (Republic v. Zosa) Page 165 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Petition shall be signed and verified by person desiring the name change or some person in his behalf Requirements of verification are formal, NOT jurisdictional requisite, and not a ground for dismissing petition. RULE 103 CHANGE OF NAME

Judicial (RTC)

Includes change in surname

RA NO. 9048 CORRECTION OF CLERICAL OR TYPOGRAPHICAL ERROR Extrajudicial (local civil registrar or consul general in case of non-resident citizen) Covers clerical or typographical error and change of first name or nickname

Section 3. Order for hearing Section 4. Hearing Section 5. Judgment Section 6. Service of judgment NOTICE OF HEARING Notice of hearing published once a week for 3 consecutive weeks. DATE OF HEARING Cannot be held within 30 days before an election, or within 4 months after last publication. Last publication

4 months

Hearing

30 days

Election

Hearing cannot be scheduled within these periods TITLE OF PETITION Must include name, aliases, and name asked for. Example: “In Re: Petition for Change of Name of X, alias Y, to Z. X, Petitioner. QuickTime™ and a TIFF (Uncompressed) decompressor

are needed to see this picture. PUBLICATION Must reproduce title of the petition (see above), and contain correct information as to: a. Name or names of petitioner; b. Cause for the change of name; c. Name asked for.

Failure to comply with above requirements renders proceedings null and void

RULE 104 VOLUNTARY DISSOLUTION OF CORPORATIONS Section 1. Where, by whom and on what showing application made Section 2. Order thereupon for filing objections Section 3. Hearing, dissolution, and disposition of assets; Receiver Section 4. What shall constitute record NOTE: Repealed by Sections 118 and 119 of the Corporation Code

RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN Section 1. Venue Section 2. Contents of petition Section 3. Order for hearing Section 4. Opposition Section 5. Judgment Section 6. Service of judgment upon civil registrar RECOGNITION OF NATURAL CHILDREN (Art. 278, NCC) Only evidence accepted a. Record of birth b. Will c. Statement before court of record d. Any authentic writing

RULE 106 CONSTITUTION OF FAMILY HOME Section 1. Who may constitute Section 2. Contents of petition Section 3. Notice and publication Section 4. Objection and date of hearing Section 5. Order Section 6. Registration of order NOTE: Amended by Articles 152 and 153 of the Family Code.

RULE 107 Page 166 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ABSENTEES Section 1. Appointment of representative Section 2. Declaration of absence; who may petition Section 3. Contents of petition CONTENTS OF PETITION FOR APPOINTMENT OF REPRESENTATIVE, OR FOR DECLARATION OF ABSENCE AND APPOINTMENT OF TRUSTEE OR ADMINISTRATOR: a. Jurisdictional facts; b. Names, ages, and residences of heirs instituted in the will (a copy of which must be presented) and of the intestate heirs; c. Names and residences of creditors and other persons with adverse interests over the properties of the absentee; d. Probable value, location and character of the property of the absentee. Section 4. Time of hearing; notice and publication thereof Section 5. Opposition Section 6. Proof at hearing; order Section 7. Who may be appointed Section 8. Termination of administration NOTICE OF HEARING Published once a week for 3 consecutive weeks, and personal notice sent to all known heirs, legatees, devisees, creditors and other interested persons at least 10 days before the hearing.

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Section 1. Who may file petition Any person interested in any act, event, order or decree concerning the civil status of persons. RTC of the province where the corresponding civil registrar is located. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

REQUISITES OF ADVERSARIAL PROCEEDINGS: 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded; 2. The order of 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, files his opposition thereto; 5. Full blown trial. NOTE: 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 substantative right. (Chiao Ben Lim vs. Zosa, L-40252, December 29, 1986) Section 2. Entries subject to cancellation or correction 1. 2. 3. 4. 5. 6.

Births; Marriages; Deaths; Legal separations; Judgments of annulments or marriage; Judgments declararing marriages void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10.Naturalization; 11.Elections, loss or recovery of citizenship; 12.Civil interdiction; 13.Judicial determination of filiation; 14.Voluntary emancipation of a minor; 15.Change of name Section 3. Parties 1. Civil registrar; 2. All persons who have or claim any interest which would be affected thereby. 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 Within 15 days from notice of the petition or from date of last publication. Section 6. Expediting proceedings Section 7. Order Page 167 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Civil registrar shall be given a copy of the judgment and annotate the same on his record PETITIONS FOR CHANGE OF NAME

Petition to be filed in the RTC where the petitioner resides. Solicitor General must be notified by service of a copy of the petition.

Petition is filed by person desiring to change his name. Order of the hearing shall be published once a week for three consecutive weeks

First name or last name (there must be valid around with respect to the letter) may be changed Service of judgment shall be upon the civil register concerned

PETITIONS FOR THE CORRECTION , CANCELLATION OF ENTRIES Verified petition filed in the RTC where the corresponding civil registry is located. Civil registrar concerned is made a party to the proceeding as a respondent. The Solicitor General must also be notified by service of a copy of the petition. Petition is filed by any person interested in any ACT, EVENT, ORDER OR DECREE. order shall be published once a week for three consecutive weeks and court shall cause reasonable notice to person named in petition Only typographical errors may be changed.

Service of judgment shall be upon the civil register concerned

RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A QuickTime™ and a JUDICIAL ORDER TIFF (Uncompressed) decompressor are needed to see this picture.

SCOPE: a. Clerical / typographical errors b. Change of first name / nickname CLERICAL OR TYPOGRAPHICAL ERROR It is a mistake committed in the performance of clerical work in writing, copying, transcripting or

typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes, or obvious to the understanding and can be corrected or changed only by reference to other existing record or records. WHO MAY FILE PETITION: Any person having direct and personal interest in the correction or change WHERE TO FILE PETITION: 1. With the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. 2. If petitioner has already migrated to another place in the country and it would not be practical for such party to appear before the local civil registrar keeping the documents to be corrected or changed: With the local civil registry of the place where the interested party is presently residing or domiciled 3. If petitioner resides or domiciled in foreign countries: With nearest Phil. Consulate Petition may be availed of only once. GROUNDS FOR CHANGE OF FIRST NAME: 1. First name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce 2. 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 3. Change will avoid confusion FORM AND CONTENTS OF PETITION: a. In the form of an affidavit, subscribed and sworn to before any authorized person b. Set forth fact necessary to establish merits c. Show affirmatively that petitioner is competent to testify to the matters stated d. State: i. The particular erroneous entry which are sought to be corrected ii. The change sought to be made e. Supported by: i) 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 ii) At least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based iii) Other relevant documents Page 168 of 289

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Differences between RA 9048 and Rule 108 RA 9048 Administrative proceeding Affidavit is filed Penalty clause Publication requirement: once a week for 2 consecutive weeks Posting in conspicuous place Change of name is based on 3 enumerated grounds

RULE 108 Summary judicial proceeding Petition is filed No penalty clause Publication requirement: 3 consecutive weeks No posting Change of name is to correct clerical / innocuous errors

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; 4. Order granting or denying a motion for new trial or for reconsideration. Section 2. Advance proceedings APPEAL IN ORDINARY CIVIL ACTION 15 days Notice of Appeal and docket fees No extension

distribution

in

special

APPEAL IN SPECIAL PROCEEDINGS 30 days Record on appeal and docket fees May extend on territorious grounds

RULE 109 APPEALS IN SPECIAL PROCEEDINGS 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: 1. Allows or disallows 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 offset to a claim against it; 4. Settles the account of a 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 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 QuickTime™ and a 6. Is the finalTIFF order or judgment (Uncompressed) decompressor rendered in the are needed to see this picture. case, and affects the substantial rights of the person appealing, UNLESS it be an order granting for denying a motion for a new trial or for reconsideration. ORDERS THAT ARE NOT APPEALABLE 1. Order directing administrator to take action to recover amount due to the estate; Page 169 of 289