Escolar Documentos
Profissional Documentos
Cultura Documentos
100
MEMORY AID
IN
REMEDIAL LAW
SPECIAL PROCEEDINGS
.SPECIAL PROCEEDINGS - A remedy by
which a party seeks to establish a status,
a right or a particular fact. (Rule 1,
Section 3)
JURISDICTION
GENERAL RULE: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the
following cases:
1. Probate proceedings whether testate
or intestate where the gross value of
the estate does NOT exceed
P300,000 or P400,000 in Metro
Manila, EXCLUSIVE of interest,
damages
of
whatever
kind,
attorneys fees, litigation expenses
and costs.
2. DELEGATED JURISDICTION
in Cadastral and Land
Registration Cases covering lots
where there is no controversy or
opposition or contested lots where
the value of which does not exceed P
100T.
appeal is taken to the CA, not
to the RTC since MTC is equal to RTC
in this instance.
3. SPECIAL JURISDICTION
petitions for writ of Habeas
Corpus in case of absence of RTC
judges.
SC and CA have original jurisdiction
over Habeas Corpus cases, concurrent
with the RTC.
ORDINARY
ACTION
SPECIAL
PROCEEDING
to protect or
enforce a right or
prevent or redress a
wrong
involves the
establishment of the
right, status or fact
involves two or
more parties
governed by
ordinary rules
governed by special
rules supplemented
supplemented by
special rules
by ordinary rules
heard by courts of
general jurisdiction
heard by courts of
limited jurisdiction
Initiated by a
pleading and parties
respond through an
answer
Initiated by means of
a petition and parties
respond by means of
an opposition
IN
SETTLEMENT
Issuance of Letters
Testamentary/Administration
(A special administrator may be
appointed) (Rule 77-80)
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
RULE 73
VENUE AND PROCESS
VENUE
INHABITANT
OF
PHILIPPINES
(whether citizen or alien) Court
of province/city where he
resides at the time of death.
INHABITANT
OF
FOREIGN
COUNTRY RTC of any province
wherein he had his estate.
Residence means his personal, actual
or physical habitation, his actual
residence or place of abode. (Fule vs.
CA, L-40502, Nov. 29, 1976)
Where estate of deceased persons
settled. (Sec.1)
2 KINDS OF SETTLEMENT
A. EXTRAJUDICIAL SETTLEMENT (Rule 74, Section 1)
B. JUDICIAL SETTLEMENT - Testate or
Intestate Proceedings instituted in
the country where decedent has his
residence
EXTENT OF JURISDICTION
Probate courts are courts of LIMITED
jurisdiction. It may only determine and
rule upon issues relating to the
settlement of the estate, namely:
1. administration of the estate;
2. liquidation of the estate; and
3. distribution of the estate.
GENERAL RULE: Probate court cannot
determine issue of ownership.
EXCEPTIONS:
1. Provisionally, ownership may be
determined for the purpose of
including property in inventory,
without prejudice to its final
determination in a separate action;
or
2. When all the parties are heirs and
they submit the issue of ownership
to the probate court provided that
the rights of third parties are not
prejudiced. (Bernardo vs. CA, L18148, Feb. 28, 1963)
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
REMEDY IF THE VENUE IS IMPROPERLY
LAID
ORDINARY APPEAL not certiorari or
mandamus UNLESS want of jurisdiction
appears on the record of the case.
RTC may issue writs and processes.
(Sec.3, Rule 73)
GENERAL RULE: Probate court cannot
issue writs of execution.
Reason: its orders usually refer to the
adjudication of claims against the estate
which the executor/administrator may
satisfy without the need of executory
process.
EXCEPTIONS:
EXCLUSIVE
(expressio
unius est exclusio alterius)
1. To satisfy the contributive share
of the devisees, legates and
heirs when the latter had
entered prior possession over the
estate. (Sec. 6, Rule 88)
2. To enforce payment of the
expenses of partition. (Sec. 3,
Rule 90)
Where the estate settled upon
dissolution of marriage (Sec.2)
Upon the death of either the husband or
the wife, the partnership affairs must be
liquidated in the testate or intestate
proceedings of the deceased husband or
wife. If both have died, liquidation may
be made in the testate or intestate
proceedings of either.
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his
estate is submitted to a judicial
settlement proceeding.
EXCEPTION: The heirs may resort to:
1. Extrajudicial settlement of estate;
or
2. Summary settlement of estate must
be conducted in accordance with
regular procedure NOT under rules
of summary procedure. (Regalado)
In these exceptions an administrator
or executor need not be appointed.
IN
REMEDIAL LAW
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT BETWEEN HEIRS (Sec.1)
Requisites:
A. Substantive
1. The decedent left a) no will
b) no debts
2. The heirs are all of age or the
minors are represented by their
judicial or legal representatives
duly authorized for the purpose
B. Procedural
1. Division of estate must be in a
PUBLIC INSTRUMENT or by
AFFIDAVIT of ADJUDICATION in
the case of a sole heir.
2. Filed with proper Registry of
Deeds
3. Publication of notice of the fact
of extrajudicial settlement once
a week for 3 CONSECUTIVE WKS.
4. Bond filed equivalent to the
value of PERSONAL property.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
the same with the Register of Deeds.
(Regalado)
Is a Public Instrument necessary for the
validity of an extrajudicial settlement?
NO. Private instrument/document or
Oral agreement of partition is valid
among the heirs who participated in the
extrajudicial
settlement.
The
requirement under Sec. 1, Rule 74 that it
must be in public instrument is NOT
constitutive of the validity but is merely
evidentiary in nature. (Hernandez vs
Andal)
However,
Reformation
compelled. (Regalado)
may
be
EXTRAJUDICIAL
SETTLEMENT
JUDICIAL
SETLLEMENT
No court intervention
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both
testate and intestate
available even if
there are debts; it is
the court which will
make provision for
its payment
May be instituted by
ANY INTERESTED
PARTY even a
creditor of the
estate without the
consent of all heirs
bond to be
determined by the
court
amount of bond is
equal to the value of
personal property
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
YEARS from the discovery of
fraud.
3. Reconveyance of real property.
Where the estate has been summarily
settled, the unpaid creditor may, within
2 years, file a motion in the court
wherein such summary settlement was
had, for the payment of his credit.
EXCEPTION:
If on the date of the
expiration of the two-year period, the
creditor or heir is a) A minor or incapacitated, or
b) In prison or
c) Outside the Philippines,
he may present his claim within one year
after such disability is removed. (Sec. 5
Rule 75)
The 2-year lien upon the real property
distributed by extrajudicial or summary
settlement shall be annotated on the
title issued to the distributees and after
2 years will be cancelled by the register
of deeds without need of court order
(LRC CIRCULAR 143)
Such lien cannot be discharged nor the
annotation be cancelled within the 2
year period even if the distributees offer
to post a bond to answer for contingent
claims from which lien is established.
(Rebong vs. Ibanez, 79 Phil 324)
RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF
WILL NECESSARY
Section
1.
Allowance
necessary,
conclusive as to execution.
NATURE OF PROBATE PROCEEDINGS
1. IN REM -binding on the whole
world.
2. MANDATORY - no will shall pass
either real or personal property
unless it is proved and allowed in
the proper court. HOWEVER, it
has been held in one case that a
will may be sustained on the
basis of Article 1080 of the Civil
Code which reads as follows:
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
2.
3.
4.
5.
means
due
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
of the subscribing witnesses or of
any of them.
b) Holographic
Wills
the
testimony of 1 witness who
knows the handwriting and
signature of the testator. In the
absence thereof, testimony of an
expert witness.
2. CONTESTED (Sec.11)
a) Notarial Wills - ALL subscribing
witnesses AND notary public.
HOWEVER, if any or all the
witnesses (i) testify against the
execution of the will, (ii) do not
remember attesting thereto, or
(iii) of doubtful credibility, the
will may be allowed if the court
is satisfied from the testimony of
other witnesses and from all the
evidence presented that the will
was executed and attested in
the manner required by law.
b) Holographic Wills - 3 witnesses
who knows the handwriting of
testator. In the absence thereof,
testimony of an expert witness
may be resorted to.
HOWEVER, in Codoy vs.
Calugay, GR NO. 123486, Aug.
12, 1999, the SC ruled that if the
holographic will is contested, 3
witnesses
who
know
the
handwriting and signature of the
testator
are
now
required/mandatory to prove its
authenticity
and
for
its
allowance.
GENERAL RULE: Holographic will if
destroyed CANNOT be probated.
EXCEPTION: If there exists a Photostat
or Xerox copy thereof. (Gan vs. Yap, 104
Phil 509)
Proof of lost or destroyed will (Sec.6)
Facts which should be proved in order
that a lost or destroyed will may be
allowed:
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
1. foreign
court
must
have
jurisdiction over the proceeding;
2. domicile of testator/decedent in
the foreign country and not in
the Philippines;
3. that the will has been admitted
to probate in such country;
4. it was made with the formalities
prescribed by the law of the
place in which the decedent
resides, or according to the
formalities observed in his
country, or in conformity with
the formalities prescribed by our
Civil Code; and
5. due execution of the will in
accordance with the foreign
laws. (Regalado)
EFFECTS
1. the will shall have the same
effect as if originally proved and
allowed in court of the
Philippines.
2. letters
testamentary
or
administration with a will
annexed shall extend to all
estates of the Philippines.
3. Residue of estate after payment
of debts, etc. shall be disposed
of as provided by law in cases of
estates in Philippines belonging
to persons who are inhabitants
of another state or country.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION WHEN AND TO WHOM
ISSUED
PERSONS WHO CAN ADMINISTER THE
ESTATE
1. Executor;
2. Administrator, regular or special
(Rule 80); and
3. Administrator
with
a
will
annexed (Rule 79, Section 1).
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
TO WHOM LETTERS OF ADMINISTRATION
GRANTED
Order Of Preference
1. The surviving husband or wife or
the next of kin, or both in the
discretion of the court, or to
such person as such surviving
spouse or next of kin, request to
have appointed, if competent
and willing to serve. (SURVIVING
SPOUSE OR NOMINEE)
2. If the surviving spouse or the
next of kin or the person
selected
by
them
be
incompetent or unwilling to
serve, or if the surviving spouse
or next of kin neglects for 30
days after the death of the
decedent
to
apply
for
administration, ANY one or more
of the PRINCIPAL CREDITORS, if
competent and willing to serve.
3. If there is no such creditor
competent and willing to serve,
it may be granted to such other
person as the court may select.
(STRANGER)
The Order of appointment of Regular
administrator is final and appealable.
BASIS FOR THE PREFERENTIAL RIGHT
The underlying assumption is that those
who will reap the benefits of a wise,
speedy and economical administration of
the estate or on the other hand, suffer
the
consequences
of
waste,
improvidence or mismanagement, have
the higher interest and most influential
motive to administer the estate
correctly.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
What is the MAIN ISSUE in an
administration proceeding?
Who is the person rightfully entitled to
administration.
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a
special administrator?
1. Delay in granting of letters
including appeal in the probate
of the will.
2. Executor is a claimant of the
estate he represents.
- in this second instance, the
administrator shall have the
same powers as that of a
general administrator.
ORDER
OF
APPOINTMENT
DISCRETIONARY
The preference accorded by Sec. 6 of
Rule 78 of the Rules of Court to surviving
spouse refers to the appointment of a
regular administrator, NOT to that of
special administrator, and that the order
appointing the later lies within the
discretion of the probate court, and is
not appealable. (Pijuan vs. De Gurrea,
124 Phil. 1527)
POWERS AND DUTIES
1. Possession and charge of the
goods, chattels, rights, credits,
and estate of the deceased;
2. Commence and maintain suit for
the estate;
3. Sell ONLY
a) perishable property; and
b) those ordered by the court;
4. Pay debts ONLY as may be ordered
by the court.
DURATION OF POWER OF SPECIAL
ADMINISTRATOR
Until questions causing the delay is
decided and the regular administrator is
appointed.
When does the power of a special
administrator cease?
After the questions causing the delay are
resolved and letters are granted to
regular executor or administrator.
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
retains jurisdiction of the estate, the
bond contemplates a continuing liability.
(Luzon Surety vs. Quebrar, 127 SCRA
295).
BOND OF SPECIAL ADMINISTRATOR
(Sec.4)
Conditions
1. make inventory.
2. render accounting when required
by court.
3.
deliver the same to person
appointed
executor
or
administrator
or
other
authorized persons.
The bond is effective as long as the
court
has
jurisdiction
over
the
proceedings.
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
If after letters of administration have
been granted on the estate of the
decedent as if he had died intestate, his
will is allowed and proved by the court,
the letters of administration shall be
revoked and all powers thereunder
cease, and the administrator shall
forthwith surrender the letters to the
court, and render his account within
such time as the court may direct.
The discovery of a will does NOT ipso
facto nullify the letters of administration
already issued until the will has been
proved and allowed pursuant to Rule 82
Sec. 1. (De Parreno vs. Aranzanso, GR
No. L-27657, Aug. 30, 1982)
RESIGNATION
OR
REMOVAL
OF
EXECUTOR/ ADMINISTRATOR (SEC.2)
Grounds
1. neglect to render accounts;
(w/in 1 YEAR or when the court
directs);
2. neglect
to
settle
estate
according to these rules;
3. neglect to perform an order or
judgment of the court or a duty
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
According to Art. 188 of the Civil
Code, the children need not be minors
or incapacitated to be entitled to
allowance. (Santero vs CFI of Cavite, GR
No. 61700-03, Sept. 24, 1987)
IN
REMEDIAL LAW
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
RULE 85
ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
POWERS
OF
EXECUTOR/
ADMINISTRATOR OF THE ESTATE
1. To have access to, and examine
and take copies of books and
papers
relating
to
the
partnership in case of a
deceased partner;
2. To examine and make invoices of
the property belonging to the
partnership in case of a
deceased partner;
3. To make improvements on the
properties under administration
with
the
necessary
court
approval except for necessary
repairs;
4. To possess and manage the
estate when necessary:
a) for the payment of debts;
and
b) for payment of expenses of
administration;
5. To maintain in tenantable repairs
houses and other structures and
fences and to deliver the same
in such repair to the heirs or
devisees when directed so to do
by the court.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
When shall executor or administrator
render an account? (Sec.8)
RULE: Within one year from the time of
receiving letters testamentary or letters
of administration.
EXCEPTION: An extension of time is
allowed for presenting claims against or
paying the debts of the estate for
disposing of the estate but even in such
cases, the administration should be
terminated in not more than two-years
and a half.
RULE 86
CLAIMS AGAINST ESTATE
Claim - any debt or pecuniary demand
against the decedents estate.
When may a court issue notices to
creditors to file their claims?
Immediately issued after granting letters
testamentary or of administration.
PURPOSE: for the speedy settlement of
the affairs of the deceased person and
early delivery of the property of the
estate into the hands of the persons
entitled to receive it.
Claims arising AFTER his death cannot be
presented except for:
a) funeral expenses; and
b) expenses of the last sickness of
the decedent.
Claims for taxes (inheritance and estate)
due and assessed after the death of the
decedent need not be presented in the
form of a claim. The court in the
exercise of its administrative control
over the executor or administrator may
direct the latter to pay such taxes. And
the heirs, even after distribution are
liable for such taxes.
STATUTE OF NON-CLAIMS (Sec.2)
When should the claims be filed?
GENERAL RULE: Within in the time fixed
in the notice which shall not more than
12 MONTHS nor less than 6 MONTHS after
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
preempt prescription of judgment.
(Romualdez vs. Tiglao, 105 SCRA 762).
Heir may not sue until share assigned
(Sec.3)
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.
Proceedings when property concealed,
embezzled or fraudulently conveyed
(Sec.6)
PURPOSE: To elicit information or to
secure evidence from 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.
EXCEPTIONS:
1. Provisional determination of
ownership for inclusion in the
inventory; or
2. Submission
to
the
courts
jurisdiction (Bernardo vs. CA, GR
No. 82483, Sept. 26, 1990)
Embezzlement before letters issued
(Sec.8)
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.
Property fraudulently conveyed by the
deceased may be recovered. When
executed or administered must bring
action (Sec.9)
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
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
When the will provides for payment of
debts, Section 2 must be followed.
Although testator acknowledged a
specific debt on his will, the creditor
must still file his claim in the testate or
intestate proceedings, otherwise his
claim will be barred.
Estate to be retained to meet
contingent claims (Sec.4)
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.
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.
How
contingent
claim
becoming
absolute in two years allowed and paid
(Sec.5)
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. The residual funds within the
estate, although already in the
possession of the universal heirs, are
funds of the estate. The Court has
jurisdiction over them and it could
compel the heirs to deliver to the
administrator of the estate the
necessary portion of such funds for the
payment of any claims against the
estate. (In re Testate Estate of
Margarita David, Sison vs. Teodoro, 98
Phil 680)
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
Extension must not exceed six months
for single extension. Whole period
allowed to the original executor or
administrator shall not exceed 2 years
(section 15) successor of dead executor
or administrator may be given an
extension not to exceed 6 months.
RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE PROPERTY OF
THE DECEASED
Order of sale of personalty (Sec.1)
The court may order the whole or part of
the personal estate to be sold if
necessary:
1. to pay debts and expense of
administration;
2. to pay legacies; or
3. to cover expenses for the
preservation of the estate.
When court may authorize sale,
mortgage or other encumbrances of
realty to pay debts and legacies though
personality not exhausted? (Sec. 2)
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 interests
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
a) application of
Executor/Administrator;
b) written notice to person
interested; and
c) hearing
IN
REMEDIAL LAW
Assets
in
the
hands
of
executor/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.
Reason:
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
latters death, they 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. (Maneclang vs. Baun, 208 SCRA
179)
May the court authorize sale, mortgage
or other encumbrance of estate to pay
debts and legacies in other countries?
(Sec. 5)
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.
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 Rule 89, any
person interested in the estate
gives a bond conditioned to pay
the
debts,
expenses
of
administration and legacies.
RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
Liquidation means the determination of
all assets of the estate and payment of
all debts and expenses.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
When order for distribution of residue
made (Sec.1)
RULE: ORDER OF DISTRIBUTION shall be
made AFTER payments of all debts,
funeral
expenses,
expenses
for
administration, allowance of widow and
inheritance tax is effected.
In these proceedings, the court shall:
1. collate;
2. determine heirs; and
3. determine the share of each
heir.
A separate action for the declaration of
heirs is not necessary.
When is title vested?
From FINALITY of order of distribution.
Only after partition is approved and not
before, the court may order the delivery
to the heirs of their respective shares
except when the heir file a bond
conditioned to pay the debts.
An order which determines the
distributive shares of heirs is appealable.
If not appealed, it becomes final.
The probate court lose 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. (Timbol vs. Cano, 1
SCRA 1271)
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 INTERFERENCE
BY OTHER COURTS
As long as the order of distribution of
the estate has not been complied with,
the probate
IN
REMEDIAL LAW
RULE 91
ESCHEATS
3 INSTANCES of ESCHEATS
1. When a person dies intestate
leaving no heir but leaving
property in the Philippines
(Section 1)
2. REVERSION PROCEEDINGS Sale
in violation of the Constitutional
provision
3. Unclaimed Balance Act under
Banking Laws
What is the basis of the states right to
receive property in escheat?
Order of succession under 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 his
estate in the Philippines if he is a nonresident.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
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 ENTRY OF
ORDER.
2. Direct publication of the copy of
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/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
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.
CLAIM BY PERSONS ENTITLED TO THE
ESTATE (Sec. 4)
Who?
By devisee, legatee, heir, widow/er, or
other person entitled thereto)
When to file?
- Within 5 YEARS FROM DATE OF
JUDGEMENT otherwise forever barred.
OTHER ACTIONS FOR ESCHEATS (Sec. 5)
- 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.
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.)
IN
REMEDIAL LAW
RULE 92
GUARDIANSHIP
MINOR
1.
2.
INCOMPETENT
any relative; or
other person on
behalf of a minor;
or
3. the
minor
himself if 14 years
of age or over; or
4. the Secretary of
1.
2.
3.
any relative;
friend; or
other person on
behalf
of
the
resident incompetent who has no
parents or lawful
guardian; or
4.
the Director of
Health in favor of
an insane person
who
should
be
hospitalized or in
favor of an isolated
leper. (Sec. 1)
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
Jurisdiction:
Contents of Petition
MINOR
a)
b)
c)
d)
e)
f)
g)
RULE 93
APPOINTMENT OF GUARDIANS
Who may petition for appointment of
guardian?
The father and the mother shall jointly
exercise legal guardianship over the
person and property of their minor
without the necessity of a court
REMEDIAL LAW
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes: (Sec. 2)
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 take care of themselves
or manage their property.
IN
h)
the
jurisdictional
facts;
the name, age
and residence
of
the
prospective
ward;
the
ground
rendering
the
appointment
necessary
or
convenient;
the death of
the parents of
the minor or
the
termination,
deprivation or
suspension
of
their parental
authority;
the remarriage
of the minors
surviving
parent;
the
names,
ages,
and
residences
of
relative within
the 4th civil
degree
of
minor, and of
persons having
him in their
care
and
custody;
the
probable
value,
character and
location of the
property of the
minor; and
the name, age
and residence
of the person
for
whom
letters
of
guardianship
are prayed.
INCOMPETENT
a)
b)
c)
d)
e)
f)
the
jurisdictional
facts;
the minority or
incompetency
rendering
the
appointment
necessary
or
convenient;
the
probable
value
and
character of his
estate;
the
names,
ages,
and
residences
of
the relatives of
the minor or
incompetent,
and of the
persons having
him in their
care;
the name of the
person
for
whom letters of
guardianship.
(Sec. 2 Rule 93)
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
2. pay the debts of the ward;
3. settle accounts, collect debts
and appear in actions for ward;
4. manage the estate of the ward
frugally, and apply the proceeds
to maintenance of the ward;
5. render
verified
inventory
verified within 3 MONTHS after
his appointment and annually
thereafter upon application of
interested persons; and
6. render to court for its approval
an accounting of the property
for 1 YEAR from his appointment
& every year thereafter.
TERMINATION OF GUARDIANSHIP
A. Grounds for termination
MINOR
INCOMPETENT
1. The ward has
1. competency
2.
come of age; or
has died
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
E. Bond of parents as guardians of
property of minor (Sec. 16)
If the market value of the property
on the annual 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.
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.
Grounds
for
termination
of
guardianship (Sec. 25).
The court motu propio 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
Jurisdiction: RTC in which the will was
allowed, if it be a will allowed in the
Philippines, otherwise by the RTC of the
province in which the property, or some
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
Who may petition?
Parties beneficially interested.
IN
REMEDIAL LAW
Grounds
1. essential in the interest of
petitioners
2. insanity
3. incapability
of
discharging
trustee
4. unsuitability
Rules on Sale and Encumbrance of Trust
Estate shall conform as nearly as may be
to the provisions on Sale and
Encumbrance by Guardians.
ADOPTION AND CUSTODY OF MINORS
The provisions of the Rules of Court on
Adoption have been amended by the
Domestic Adoption Act of 1998 and the
Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99
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.
Only an adoption made through the
court, or in pursuance with the
procedure laid down under Rule on
Adoption is valid in this jurisdiction.
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
the best interest of the child
Adoption is strictly personal between the
adopter and the adopted. (Teofico vs.
Del Val)
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
The requirement on residency and
certification of aliens qualification to
adopt may be WAIVED for the following:
1. The adoptee is a former Filipino
citizen who seeks to adopt a
relative within the 4th degree of
consanguinity or affinity.
2. One who seeks to adopt the
legitimate
son/daughter
of
his/her Filipino spouse.
3. One who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the 4th degree of
consanguinity or affinity of the
Filipino spouse.
WHO MAY BE ADOPTED
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 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.
GENERAL RULE: Husband and wife shall
jointly adopt.
EXCEPTIONS:
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.
IN
REMEDIAL LAW
VENUE (Sec.6)
Family Court where the prospective
adoptive parents reside.
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.
PROCEDURE
A. ORDER OF HEARING (Sec.12)
- must be published at least once
a week for 3 CONSECUTIVE WKS.
- 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 biological parents
of the adoptee, IF KNOWN.
- if a change in the name of the
adoptee is prayed for in the
petition, notice to the Sol. Gen.
Shall be MANDATORY.
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.
C. HEARING (sec.14)
- to be 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.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
-
IN
REMEDIAL LAW
records
are
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
a) over 18 years of age or
b) if minor with assistance of
DSWD
2. GUARDIAN if over 18 but
incapacitated or COUNSEL
Grounds
1. repeated physical violence and
verbal maltreatment by the
adopter
despite
having
undergone counseling;
2. attempt on the life of the
adopter;
3. sexual assault or violence; or
4. abandonment or failure to
comply
with
parental
obligations.
Venue
FAMILY COURT of the city or province
where the adoptee resides. (Sec. 20)
Period within which to file VERIFIED
petition (Sec. 21)
5 YEARS from reaching age of majority or
from recovery of 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 or legal
custody will be restored
2. reciprocal rights of adoptee and
adopter will be extinguished
3. vested rights required prior to
judicial rescission shall be
respected
4. adoptee shall use the name
stated in his original borth or
foundling certificate
5. civil registrar will reinstate his
original birth or foundling
certificate
Unlike in revocation of guardianship,
revocation of adoption is a separate
proceeding from the adoption.
RULE 99, SECTIONS 6 & 7
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
2. Show Cause Order directed to
parents or in case the parents
are dead or cannot be found,
requiring the fiscal of the
province to show cause, why the
child should not be taken from
its parents, if living
3. Hearing and Order
4. Service of Judgment upon the
Civil Registrar of the city or
municipality where the court
issuing the same is situated.
RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
Venue
RTC of province where the person
alleged to be insane is found.
Who files?
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 one having
charge of him is opposed or his
being taken to hospital or asylum
DISCHARGE OF INSANE (Sec. 4)
Director of Health may file this petition
when he is of the opinion that the person
is permanently or temporarily cured or
may be released without danger
RULE 102
HABEAS CORPUS
Habeas corpus extends to: (Sec.1)
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
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
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 re-arrested for the
same offense. (Moncupa vs. Enrile)
GROUNDS FOR RELIEF
1. deprivation of any fundamental
or constitutional right
2. lack of jurisdiction of the court
to impose the sentence
3. excessive penalty
Requisites for the issuance of the Writ
in cases by which the rightful custody
of 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
vs. CA, January 31, 1996)
Habeas Corpus can
substitute for appeal.
never
be
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
To whom writ directed and what to
require. (Sec.6)
Directed to officer and commands him
to:
1. have the body of person before
the court; and
2. show cause of the imprisonment
or restraint.
How writ is executed and returned
(Sec.8)
Officer shall:
1. Convey the person so imprisoned
before the judge, unless from
sickness or infirmity, such person
cannot, without danger be
brought before the court.
2. Make the return of the writ
together with the day and the
cause of caption or restraint.
Defect of form (Sec.9)
NO writ can be disobeyed for defect in
form IF it sufficiently states:
1. person in whose custody or
under whose restraint the party
imprisoned or restraint is held,
and
2. court or judge before whom he is
to be brought.
When the return evidence, and when
only a plea (Sec.3)
If a prisoner is in custody under a
warrant of commitment in pursuance of
law or under a judicial order, the return
shall be considered PRIMA FACIE
EVIDENCE OF THE CAUSE OF RESTRAINT,
however it shall only be plea of the
facts set forth if restraint is by private
authority.
When prisoner discharged if no appeal.
(Sec.15)
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
office or person detaining the prisoner. If
person detaining him does not appeal,
the prisoner shall be released.
When prisoner may be removed from
one custody to another (Sec.18)
IN
REMEDIAL LAW
1. By legal process
2. Prisoner is delivered to an
inferior officer to carry to jail
3. By order of proper court or judge
be removed from one place to
another within the Phil. for trial.
4. In case of fire, epidemic,
insurrection or other necessity or
public calamity.
When does court acquire jurisdiction
over person of respondent?
The writ itself plays the role as summon
in ordinary actions; court acquires
jurisdiction over the person of the
respondent BY MERE SERVICE OF WRIT.
APPEAL IN HABEAS CORPUS CASES
The appeal in habeas corpus cases may
be taken in the name of the person
detained or of the officer or person
detaining him.
An appeal in habeas corpus cases shall
be perfected by filing with the clerk of
court or the judge, within 48 hours from
notice of judgment, a notice of appeal.
RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
IN RELATION TO THE CUSTODY OF
MINORS (A.M. No. 03-04-04-SC)
Who may file Petition? (Sec.3)
- A verified petition for the rightful
custody of a minor may be filed by any
person claiming such right.
Where to file petition? (Sec.3)
- Family Court of the province or city
where the petitioner resides or where
the minor may be found.
Provisional Order Awarding Custody
(Sec.13)
As far as practicable, the following order
of preference shall be observed in the
award of custody:
a. Both parents jointly;
b. Either parent, taking into
account
all
relevant
considerations, especially the
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
choice of the minor over seven
years of age and of sufficient
discernment unless the parent
chosen unfit;
c. 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;
d. The eldest brother or sister over
twenty years of age unless he or
she is unfit or disqualified;
e. The actual custodian of the
minor over twenty years of age,
unless the former is unfit or
disqualified; or
f. 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- custodial
parent or parents, unless the court finds
said parent or parents unfit or
disqualified.
Petition for Writ of Habeas Corpus (Sec.
20)
shall be filed with the Family
court.
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 three Family Court,
provided however that the
regular court shall refer the case
to the family Court as soon as its
presiding judge returns duty.
petition may also be filed with
the SC, CA, or with any of its
members and, if so granted the
writ
shall
be
enforceable
anywhere in the Philippines. The
writ may be made returnable to
IN
REMEDIAL LAW
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
Effects of Discrepancy in the Petition
and Published Order
The defect in the petition and the order,
as to the spelling of the name of the
petitioner, is substantial, because it did
not correctly identify the party to said
proceedings.
Grounds for change of name
1. name is ridiculous, tainted with
dishonor and extremely difficult
to write or pronounce;
2. consequence of a change of
status; e.g. legitimated child;
3. necessity to avoid confusion;
4. having continuously used and
been known since childhood by a
Filipino name, unaware of her
alien parentage;
5. a sincere desire to adopt a
Filipino name to erase signs of
former alienage, all in good faith
and
without
prejudicing
anybody.
TITLE OF PETITION MUST CONTAINED
THE FOLLOWNG
1. Official name (birth certificate)
be very particular with the
spelling because it may avoid or
annul the proceedings; it is
jurisdictional;
2. all aliases; and
3. name asked for.
All the names or aliases must appear in
the title or caption of the petition,
because the reader usually merely
glances at the title of the petition and
may only proceed to read the entire
petition if the title is of interest to him.
(Secan Kok vs. Republic,supra).
A decree of adoption grants the adoptee
the right to use the adopters surname
but not to change the formers first
name which relief must be sought in a
discrete petition under Rule 103.
(Republic vs. Hernandez, GR NO.
117209, February 9, 1996).
For administrative procedure for
Change of Name, refer to Administrative
IN
REMEDIAL LAW
CONSEQUENCE
0-2 years
--------
2 years to 7 years
Petition for
declaration of
absence may be filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
IN
REMEDIAL LAW
PETITIONS FOR
THE CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed
in the RTC where
the petitioner
resides
Solicitor General
must be notified by
service of a copy of
the petition.
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
Petition for change of name (Rule 103)
and petition for cancellation or
correction of entries are DISTINCT
PROCEEDINGS.
Hence, a party cannot change name and
correct an entry in a single petition
without satisfying the jurisdictional
requirements. (Republic v. Balmore)
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which
appeals may be taken (Sec.1)
An interested person may appeal in
special proceedings from such order or
judgment rendered which:
1. Allows or disallows a will;
2. Determines who are the lawful
heirs of a deceased person, or
the distributive share of the
estate to which such person is
entitled;
3. Allows or disallows, in whole or
in part, any claim against the
estate of a deceased person, or
any claim presented on behalf of
the estate in offset to a claim
against it;
4. Settles the account of an
executor, administrator, trustee
or guardian;
5. Constitutes, in the proceedings
relating to the settlement of the
estate of a deceased person, or
the administration of a trustee
or
guardian,
a
final
determination in the lower court
of the rights of the party
appealing
appealing, except that no appeal
shall be allowed from the
appointment
of
a
special
administrator; and
6. Is the final order or judgment
rendered in the case, and affects
the substantial rights of the
person appealing, unless it be an
order granting or denying a
motion for a new trial or for
reconsideration.
IN
REMEDIAL LAW
APPEAL IN SPECIAL
PROCEEDINGS
PERIOD:
15 days
30 days
REQUIREMENTS
Notice of Appeal and
Docket Fees
No extension
May be extended on
meritorious grounds
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
IN
REMEDIAL LAW
SPECIAL PROCEEDING
1.
VENUE
JURISDICTION
2. Escheat
RTC
RTC
c. Unclaimed Balance
Where the dormant deposits
are located
RTC
5.
Appointment of
Guardians
6.
Appointment of Trustees
7.
Adoption
Family Court
8.
Rescission of Adoption
Family Court
9.
Habeas Corpus
RTC
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
10. Change of Name
RTC
11. Appointment of
Representative of
Absentee/Declaration of
Absence
RTC
12. Cancellation/Correction
of Entries in the Civil
Registries
IN
REMEDIAL LAW
RTC
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)