Escolar Documentos
Profissional Documentos
Cultura Documentos
(2006 EDITION)
RULE 72 :SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
SPECIAL PROCEEDINGS a remedy by which a party seeks to establish a status, a rig
ht or a particular fact. (Rule 1, Section 3c)
SPECIAL PROCEEDINGS ENUMERATED IN THE RULES OF COURT
1. settlement of estate of deceased persons;
2. escheat;
3. guardianship and custody of children;
4. trustees;
5. adoption;
6. rescission and revocation of adoption;
7. hospitalization of insane persons;
8. habeas corpus;
9. change of name;
10. voluntary dissolution of corporations;
11. judicial approval of voluntary recognition of natural children;
12. constitution of family home;
13. declaration of absence and death;
14. cancellation and correction of entries in the civil registry.
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 t
he estate does NOT exceed P300,000 or does NOT exceed P400,000 in Metro Manila,
EXCLUSIVE of interest, damages of whatever kind, attorney s fees, litigation, expe
nses 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.
NOTE: Appeal is taken to the CA, not to the RTC since MTC is equal to RTC in th
is instance.
2 Kinds of Settlement
A. EXTRAJUDICIAL SETTLEMENT(Rule 74, Section 1)
B. JUDICIAL SETTLEMENT Testate or Intestate Proceedings instituted in the court
where decedent has his residence.
EXTENT OF JURISDICTION
Probate courts are court of LIMITED jurisdiction. It may only determine and rule
upon issued relating to the settlement of the estate, namely:
1. administration of the estate;
2. liquidation of the estate; and
3. distribution of the estate.
Section 2. Custodian of will to deliver :The custodian must deliver the will to
the court or to the executor within 20 days after he learns of the death of the
testator.
Section 3. Executor to present will and accept or refuse trust
Section 4. Custodian and executor subject to fine for neglect(fine not exceeding
P 2,000)
Section 5. Persons retaining will may be committed
RULE 76:ALLOWANCE OR DISALLOWANCE OF WILL
Probate or Allowance of Wills act of proving in a court a document purporting to
be the last will and testament of deceased person in order that it may be offic
ially recognized, registered and its provisions carried insofar as they are acco
rdance with law.
Section 1. who may petition for the allowance of will
1. any creditor as preparatory step for filing of his claim therein;
2. devises or legatee named in the will;
3. person interested in the estate; (e.i., heirs)
4. executor;
5. testator himself during his lifetime
Who may be a party in probate?
Generally, any person having a direct and material interest in the will or estat
e
Section 2. Contents of the Petition
1. The jurisdiction facts death of the testator and his residence at the time of
death or the province where estate was left by the decedent who is a non-reside
nt
2. the names, ages, and residence s of the heirs, legatees, devises of the testa
tor or decedent;
3. the probable value and character of the property of the estate;
4. the name of the person for whom the letter are prayed.
5. the name of the person having custody of the will if it has not been delivere
d to the court.
But no defect in the petition shall render void the allowance of the will, or th
e issuance of letters testamentary or of administration with the will annexed.
EFFECT OF THE PROBATE OF A WILL
It is conclusive as to the EXECUTION and he VALIDITY of the will (even against t
he State). Thus, a criminal case against the forger may not lie after the will h
as been probated.
ISSUE IN THE PROBATE OF A WILL
GENERAL RULE: Only determination of the extrinsic validity not the intrinsic val
idity or testamentary dispositions.
EXCEPTION: Where the entire or all testamentary dispositions are void and where
the defect is apparent on its face. (Acain vs. IAC GR No. 72706, Oct. 27, 1987;
Nepumuceno vs. CA, 139 SCRA 206)
EXTRINSIC VALIDITY means due execution of the will.
MEANING AND EXTENT OF DUE EXECUTION
Due execution means that:
1. that the will was executed strictly in accordance with the formalities requir
ed by law;
2. that the testator was of sound and disposing mind when he executed the will
3. no vitiation of consent through duress,fear or threats
4. not procured by undue or improper pressure or influence on the part of the be
neficiary or some other person for his benefit.
5. that the signature of the testator is genuine, ie., it was not procured throu
gh fraud and that the testator intended that what he executed was his last will
and testament.
Section 3. Court to appoint time for proving will. Notice thereof to be publishe
d
When does court acquire jurisdiction over interested persons and res?Upon Public
ation for 3 weeks successively of the order setting the case for hearing AND sen
ding NOTICES to all persons interested.
Section 4. heirs, devises, legatees and executors to be notified by mail or per
sonally
NOTICES MUST BE GIVEN TO;
1. designated or known heirs, legatees and devises; and
2. executor and co-executor if not the petitioner
MODES OF NOTIFYING
By mail: 20 days before hearing
Personal notice: 10 days before hearing
NOTE: 3 weeks successively is no strictly 21 days.
ANTE MORTEM
If petition for probate is on testator s own initiative during his lifetime
1. no publication is necessary (Sec. 3); and
2. notice shall be made only to the compulsory
Section 5. Proof at hearing. What sufficient in absence of contest
At the hearing, compliance of Publication and Notice must first be shown before
introduction of testimony in support of the will.
EVIDENCE in support of will:
1. UNCONTESTED WILL (Sec. 5)
a) Notarial Wills testimony of at least 1 of the subscribing witnesses is allowe
d.
- if all subscribing witnesses reside outside the province deposition is allowed
. (Sec. 7)
- if subscribing witnesses are dead insane or none of them resides in the Philip
pines. Court may admit testimony of the witnesses to rove the sanity of the test
ator, and the due execution of the will, and as evidence of the execution of the
will, it may admit proof of the handwriting of the testator and of the subscrib
ing witnesses or of any of them. (Sec. 8)
b) Holographic Wills the testimony of 1 witness who knows the handwriting and si
gnatures of the testator; in the absence thereof, testimony of an expert witness
.
Section 12. proof where testator petitions for allowance of holographic will
If there is no contest, the fact that the testator affirms that the holographic
will and the signature is in his own handwriting shall be sufficient evidence of
the genuineness and due execution thereof.
In case of contest, the burden of proof is on the contestant
4blue95:Certificate of allowance attached to prove will. To be recorded in the O
ffice of Register of Deeds.
RULE 77:ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ES
TATE THEREUNDER
EFFECTS OF ALLOWANCE
1. the will shall have the same effects as if originally proved and allowed in c
ourt of the Philippines
2. letters testamentary or administration with a will annexed shall extend to al
l estates of the Philippines
3. Residue of estate after payment of debts, etc., shall be disposed of as provi
ded by law in cases of estates in Philippines belonging to persons who are inhab
itants of another state or country.
Administrator (BAR) One appointed by the Court in accordance with the Rules or go
verning statutes to administer and settle the intestate estate or such testate e
state, where the testator did not name any executor or that the executor so name
d refuses to accept the trust, or fails to file a bond, or is otherwise incompe
tent.
Administrator with a will annexed one appointed by the court in cases when, alth
ough there is a will, the will does not appoint any executor, or if appointed, s
aid person is either incapacitated or unwilling to serve as such.
Letters of administration(BAR) Authority issued by the court to a COMPETENT pers
on to administer the estate of the deceased who died intestate
RULE 79:OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTENT FOR LETT
ERS OF ADMINISTRATION
Section 1. Opposition to issuance of letters testamentary, simultaneous petition
or administration
What is the MAIN ISSUE in an administration proceeding?
The main issue is the determination of the person who is rightfully entitled to
administration.
Who may oppose the issuance of letters?
General Rule: Any person interested in the will
EXCEPTION: Even where a person who had filed a petition for the allowance of the
will of deceased person had no right to do so in view of his lack of interest.
In the estate, nevertheless, where the interested persons did not object to its
application, the defect in the petition would be deemed cured, the filing of the
petition may be considered as having been ratified by the interested parties. (
Eusebio vs. Valmores 97 PHIL 163)
Opposition may be accompanied by a Petition for the issuance of Letters of Admin
istration with the will annexed.
Section 2. Contents of a petition for letters of administration
a) jurisdiction facts;
2005 notes: such facts must allege the person on whose estate the letters prayed
is in fact dead ; at time of death.he was resident of Philippines and if not re
sident, he left assets in the Philippines
b) name. age, residence of heirs and creditors;
c) probable value and character of the estate; and
d) name of the person for whom letters is prayed for.
No defect in the petition shall render void the issuance of the letters of admin
istration.
Publication for 3 Weeks and notice to heirs, creditors and other persons believe
d to have an interest in the estate is required before hearing.
Section 4. Opposition to petition for administration
Grounds for Opposition:
1. In letters Testamentary
a) Incompetence
2.In letters of Administration
a) incompetence;
b) preferential right of the heir under Sec. 6 Rule 76
Section 5. hearing and order for letters to issue
Section 6. When letters of administration granted to any applicant
Letters can be granted to any person or any other applicant even of other compet
ent person are present if the latter fail to claim their letters when notified b
y the court.
4blue 95: there could be 2/more co-administrators especially so when the propert
y is very huge or when it is located in different places or when the heirs or pa
rties are disputing among them their share in the estate.
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Section 2. Powers and Duties of Special Administrator
1. Possession and charge of the goods, chattels, rights, credits, and estate of
the deceased;
2. Preserve the same;
3. Commence and maintain suit for the estate;
4. Sell ONLY;
a) perishable property; and
b) those ordered by the court;
5. Pay debts ONLY as may be ordered by the court.
CONDITIONS
1. make an inventory of property which came to his knowledge and possession with
in 3 MONTHS
2. ADMINISTER the estate and from the proceeds, pay all debts and charges;
3. Render an ACCOUNT within ONE YEAR;
4. PERFORM all orders of the court
Section 7. What expenses and fees allowed executor or administrator; Not to char
ge for services as attorney. Compensation by will controls unless renounced.
Expenses of administration: those necessary for the management of the property,
for protecting it against destruction or deterioration, and possibly for the pro
duction of fruits.
COMPENSATION IF THERE IS NO PROVISION IN THE WILL
> P4.00 a day for the time actually and necessarily employed; OR
> COMMISSION
What if administrator hire another lawyer ,who will pay for Atty s fees?
HELD: The lawyer cannot charge the estate, claim such fee to the administrator s
ince it is the latter who is the client of the lawyer. The administrator will th
en claim it from the estate as part of expenses for administration.
When the deceased by will makes some other provision for the compensation of his
executor, that provision shall be a full satisfaction for his services unless b
y a written instrument filed in the court he renounces all claim to the compensa
tion provided by the will.
Conditions when greater compensation may be given to the administrator
1. estate is large
2. settlement has been attended with great difficulty, and
3. settlement has required a high degree or capacity on the part of the executor
or administrator
GR: Executor s compensation provided in the will shall be a full satisfaction for
his services.
Exception: Executor files a written renunciation of all claim to the compensatio
n provided in the will.
STATUTE OF NON-CLAIMS period fixed by the rule for the filing of the claims agai
nst the estate (this supersedes the prescriptions)
When should the claims be filed?
General Rule: Within the time fixed in the notice which shall not be more than 1
2 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwi
se, they are BARRED FOREVER.
Even if the testator acknowledged the debt in his will and instructed the execut
or to pay the debt, the statute or non-claim must still be complies with the oth
erwise the claim may also be barred.
EXCEPTION: Belated Claims
Belated claims are claims not filed within the original period fixed of the cour
t. On application of a creditor who has failed to file his claim within the time
previously limited, at ANY TIME BEFORE an order of distribution is entered, the
court MAY, for cause shown and on such terms as are equitable, allow such claim
to be filed within a time NOT EXCEEDING 1 MONTH from the order allowing belated
claims.
Statute of Non-claims SUPERSEDES the Statute of limitations insofar as the debts
of deceased persons are concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the claim is barred fore
ver, However, BOTH statute of Non-claims and Statute of Limitations MUST CONCUR
in order for a creditor to collect.
NOTE: HOWEVER, a creditor barred by the Stature of Non-claims may file a claim
as a COUNTERCLAIM in any suit that the executor or administrator may bring again
st such creditor.
Section 3. Publication of notice to creditors
> Publish the notice for 3 successive weeks in a newspaper of general circulatio
n 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; except
ions.
Claims referred to under this section refer to claims for the recovery of money
and which are not secured by a lien against the property of the estate. (Olave v
s. Carlos, 208 Phil 678)
Claims which should be filed under the Statute of Non-claims (ACTIONS WHICH DO N
OT SURVIVE)
1. Money claims, debts incurred by deceased during his lifetime arising from con
tract:
a. express or implied(arising from tort or law);
b. due or not due;
absolute or contingent.
2. Claims for funeral expenses; and
3. for the last illness of the decedents;
4. Judgment for money against decedent (under Rule 3 whereby one party to a case
died)
4blue 95:claim not covered by non-claims can be filed anytime like claim for ta
xes.
4blue 95: the BIR can levy and sell properties even w/o approval of the court (h
owever, court is not allowed to distribute the estate if no certification that i
t paid taxes already)
(BAR) Before the case is to be decided, there is still a decision required for b
ut the defendant died. Is there a substitution? No need since an action for reco
very of money as debt does not survive, as such ,the procedure is to dismissed t
he case and file it as claim against the estate.
2006 notes: the creditor is still obliged to file a claim since upon death of t
he testator (who acknowledges that he has a debt to such creditor), his entire e
state is bonded fro the payment of his debts. No creditor shall be entitled prio
rity ,all are equal. Decedent could not provide for preference in his will.
Absolute Claim 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 conditional claim or claim that is subject to the happening of
a future uncertain event (such event is the uncertainty of liability and not of
payment..
BAR:X borrowed money from you and Y acted as surety. X died. Creditor can still
file a claim against surety, so he sued the surety. During trial, the right of t
he surety is to claim reimbursement against the estate, if such will not file,
then such is barred from claiming, last remedy is to file a contingent claim ag
ainst the estate.
X borrowed P1M from Maycel and mortgage X s land. X died. Maycel appraised the la
nd and turned out it is not P1M but only P600T. If there is deficiency, file cla
im as probable deficiency against the estate, if not file, and if Maycel foreclo
se mortgage, and it is not sufficient, Maycel can no longer run against the esta
te to correct deficiency.
4blue95:Claims not yet due or contingent ay be approved at their present value.
A claim that is extinguished by death should be distinguished from an action whi
ch 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 d
eclaration of nullify of marriage.
4blue 95: even if testator state in his will and told executor to pay the debt,
still the creditor had to file claim .
If claim is contingent, you are not supposed to pay the debt. Its only an approv
al claim, but you will be paid when the liability becomes certain.
How to determine claim? Claims not yet due or contingent may be approved at thei
r present value.
An action for revival of money judgment may be filed against the administrator t
o preempt prescription of judgment. (Romualdez vs. Tiglao, 105 SCRA 762)
Section 2. Executor or administrator may bring or defend actions which survive.
Section 3. Heir may not sue until share assigned.
Before distribution is made or before any residue is known, the heirs and devise
es have no cause of action against the executor or administrator for recovery of
the property left by the decedent.
Section 4. Executor or administrator may compound with debtor.
Section 5. Mortgage due estate may be foreclosed.
Section 6. Proceedings when property concealed, embezzled or fraudulently convey
ed.
PURPOSE: To elicit information or to secure evidence from those persons suspecte
d as having possessed or having knowledge of properties belonging to deceased, o
r 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 pr
operties belong to the estate or to the person being examined since probate cour
ts are courts of limited jurisdiction.
EXCEPTION:
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 th
e probable court and the determination of which will not prejudice the rights of
3rd person. (Bernardo vs. CA, GR. No. 82483, SEPT. 26, 1990)
Section 7. Persons entrusted with estate compelled to render account.
Section 8. Embezzlement before letters issued.
The responsible person shall be liable to an action in favor if 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 the deceased may be recovered. When
executor or administrator must bring action.
This provision applies when three is a deficiency of assets in the hands of the
executor or administrator for he payment of the debts and expenses for administr
ation.
Section 10. When creditor may bring action. Lien for costs
RULE 91 :ESCHEATS
4blue95:person dies without a will and no heirs.
ESCHEAT is a proceeding whereby the real and personal property of a deceased per
son in he Philippines, ho dies without leaving any will or legal heirs, become t
he property of the State upon his death.
3 INSTANCES OF ESCHEATS
1. When a person dies intestate leaving no heir but leaving properly in the Phil
ippines; (Section 1)
2. REVERSION PROCEEDINGS Sale in violation of the Constitutional provision;
3. Unclaimed Balances Ac. (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 the Civil Code, the STATE is the last heir of the dece
dent.
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 Philippi
nes if he is anon-resident.
Secion 2. Order for heaing.
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 the publication of a copy of the order at least one a week for 6 CONSE
CUTIVE WEEKS.
REQUISITES
1. Publication of the order;
2. person dies 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
Can court convert escheat proceedings into ordinary special proceedings or vice-
versa?
NO. This is not allowed for the two action have different requirements in acquir
ing jurisdiction. In special proceedings, publication is once a week for 3 weeks
while in escheat, one a week for 6 weeks.
NOTE: Escheat under the Unclaimed Balance law must be filed in RTC of the place
where the dormant deposits are found
RULE 92:GUARDIANSHIP
NOTE: guardianship of minors is now governed by the Rule an guardianship of Mino
rs (A.M. NO. 03-02-05 SC) which took effect on May 1, 2003. While guardianship o
f incompetents is still governed by the provisions of the Rules of Court on guar
dianship (Rule 92 to Rule 97)
Section 1. Where to institute proceedings.
Jurisdiction:
> Incompetents RTC of his residence or where hi property is located in case of n
on-resident (Sec. 1)
> Minor Family Court of his residence or where his property is located in case o
f non-resident (Sec. 3, AM 03-02-05)
KINDS OF GUARDIANS
A. According of scope:
1. General over the person of the ward or over his property
2. Limited over the property only
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 min
or, insane or person declared to be incompetent, in an action in court.
Section 2 . Meaning of the word Incompetent
INCOMPETENT includes:
1. those suffering from penalty of civil interdiction;
2. hospitalized lepers;
3. prodigals;
4. deaf and dumb ho are unable to read and write;
5. those o unsound mind though they have lucid intervals
6. persons not of unsound mind but by reason of age, disease, weak mind and othe
r similar causes cannot, without outside aid, take care of themselves or manage
their property.
Section 3. Transfer of Venue
Sec. 5. Hearing and order for letters to issue. At the hearing of the petition t
he alleged incompetent must be present if able to attend, and it must be shown t
hat the required notice has been given. Thereupon the court shall hear the evide
nce of the parties in support of their respective allegations, and, if the perso
n in question is a minor, or incompetent it shall appoint a suitable guardian of
his person or estate, or both, with the powers and duties hereinafter specified
.
2006 notes: It is the incompetent wards, if able, who is required to attend the
guardianship hearings. Minors wards are not required to attend.
Procedure:
a. filing of petition
b. court shall set the case for hearing;
c. cause notices to be served to the person mentioned in the petition, including
minor, if 14 years and above;
d. court shall receive evidence;
e. declaration of the property of the petition
f. issue letter of guardianship
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 out under guardianship may file a petition for guardianship over the propert
y of such person.
> Notice shall be given through publication or otherwise.
Sec. 7. Parents as guardians. xxx (repealed by the Arts. 225 of the Family Code)
Art. 225. The father and the mother shall jointly exercise legal guardianship ov
er the property of the unemancipated common child without the necessity of a cou
rt appointment. In case of disagreement, the father's decision shall prevail, un
less there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amoun
t as the court may determine, but not less than ten per centum (10%) of the valu
e of the property or annual income, to guarantee the performance of the obligati
ons prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court
of the place where the child resides, or, if the child resides in a foreign coun
try, in the proper 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 inci
dents and issues regarding the performance of the obligations referred to in the
second paragraph of this Article shall be heard and resolved.
2006 notes: The ordinary rules on guardianship shall be merely suppletory except
when the child is under substitute parental authority, or the guardian is a str
anger, or a parent has remarried, in which case the ordinary rules on guardiansh
ip shall apply (on this exceptions,the rule on guardianship applies).
Section 8. Service of Judgment: served upon the Civil Registrar of the place whe
re the minor or incompetent resides or where the property is situated shall be s
erved with a copy of the judgment.
RULE 97: GENERAL GUARDIANS AND GUARDIANSHIP: TERMINATION OFGUARDIANSHIP
Section 1. Petition that competency of ward be adjudged and proceedings thereupo
n.
> Petition shall be verified by oath and shall state that such person is then co
mpetent.
A. Grounds for termination
MINOR
1.
INCOMPETENT
the ward has come of age; or
2. has died;
3. competency
1. death of guardian.
of the ward
(Sec.has25,been
AM judicially
03-02-05 SC)determined ;
2. guardianship is no longer necessary;
3. death of guardian;
4. death of ward.
Section 2. when guardian removed or allowed to resign.
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 du
e.
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 ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05
SC, effective May 1, 2003)
PROCEDURE
A. ORDER OF HEARING (Sec. 12)
- must be published at lease once a week for 3 CONSECUTIVE WKS.
- at the discretion of the court, copies of the order of hearing shall be furni
shed to the office of the Sol. Gen. through the provincial or city prosecutor, t
he 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 t
o the Sol. Gen. shall be MANDATORY.
Contents of Order:
1) the registered name of the adoptee in the birth certificate and the names by
which 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 the petition is granted.
4) the defendant place of hearing which shall be set within 6 months from the da
te of the issuance of the order and shall direct that a copy thereof be publishe
d 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 si
tuated; Provided, that in case of application for change of name, the date set f
or 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 Execution
Judge.
5) a directive to the social worker of the court, the social service office of t
he local government unit or any children 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 filing 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 t
o deny the petition.
C. HEARING (Sec. 14)
- to be held within 6 MONTHS from the date of the issuance of the order.
EXCEPT: In case of APPLICATION FOR CHANGE OF NAME which hearing must not be with
in 4 MONTHS after LAST PUBLICATION nor within 30 DAYS prior to election.
- the petitioner and the adoptee must personally appear and the former must test
ify in court.
D. SUPERVISED TRIAL CUSTODY (STC) (Sec. 15)
Before issuance of decree of adoption the court shall give the adopter trial cus
tody of the adoptee for at east 6 MONTHS.
Reason: So the parties will adjust psychologically and emotionally to each other
and establish a bonding relationship.
NOTE: Court may reduce or exempt parties from Supervised Trial Custody.
GENERAL RULE:
Alien adopter must complete the 6 MONTHS STC.
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 petiti
on.
In case of chance 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 sh
all be stamped concealed and shall be sealed in the Civil registry records.
NOTE: The new birth certificate to be issued to the adoptee shall not bear any n
otation that it is an amended issue.
EFFECTS OF ADOPTION:
1. adopter will exercise parental authority;
2. all legal ties between biological parents and the adoptee shall be severed, e
xcept when biological parent is spouse of adopter;
3. adoptee shall be considered legitimate child of adopter for all intents and p
urposes;
4. adopters shall have reciprocal rights of succession without distinction from
legitimate filiation.
All hearings and records are confidential.
(Sec. 18)
RESCISSION ADOPTION
Under the domestic Adoption Act of 1998, the ADOPTER CAN NO LONGER RESCIND the a
doption, he can merely disinherit the adoptee in accordance with the provisions
of the Civil code.
RESCISSION relates only as to the date of the judgment. Hence, vested rights pri
or to rescission should be respected
Who files? (only the child or the guardian/counsel)
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
Grounds
1. repeated physical violence and verbal maltreatment by the adopter despite ha
ving undergone counselling.
2. attempt on the life of the adoptee;
3. sexual assault or violence; or
4. abandonment failure to comply with parental obligation
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 cour
t requiring him to answer. (Sec. 22)
Sec. 2. Order for hearing. If the petition filed is sufficient in form and subst
ance, the court, by an order reciting the purpose of the petition, shall fix a d
ate for the hearing thereof, and copy of such order shall be served on the perso
n alleged to be insane, and to the one having charge of him, or on such of his r
elatives residing in the province or city as the judge may deem proper. The cour
t shall furthermore order the sheriff to produce the alleged insane person, if p
ossible, on the date of the hearing.
Note that there is no publication requirement for hospitalization of insane pers
ons.
Sec. 3. Hearing and judgment. Upon satisfactory proof, in open court on the date
fixed in the order, that the commitment applied for is for the public welfare o
r for the welfare of the insane person, and that his relatives are unable for an
y reason to take proper custody and care of him, the court shall order his commi
tment to such hospital or other place for the insane as may be recommended by th
e Director of Health. The court shall make proper provisions for the custody of
property or money belonging to the insane until a guardian be properly appointed
.
Sec. 4. Discharge of insane. When, in the opinion of the Director of Health, the
person ordered to be committed to a hospital or other place for the insane is t
emporarily or permanently cured, or may be released without danger he may file t
he proper petition with the Court of First Instance which ordered the commitment
.
Sec. 5. Assistance of fiscal in the proceeding. It shall be the duty of the prov
incial fiscal or in the City of Manila the fiscal of the city, to prepare the pe
tition for the Director of Health and represent him in court in all proceedings
arising under the provisions of this rule.
WRIT OF HABEAS CORPUS is a writ directed to the person detaining another an comm
anding him to produce the body of the prisoner at a certain time and place, with
the day and the cause of his caption and detention, to do submit to, and receiv
e whatsoever the court or judge awarding the writ shall consider to that behalf.
WHEN AVAILED OF (as a consequence of a judicial proceeding
1. there has been deprivation of a constitutional right resulting in the restra
int of a person;
2. the court had no jurisdiction to impose the sentence
3. an excess penalty has been imposed, as such sentence is void as to such exces
s;
4. where the law is amended, as when he penalty is lowered.
NATURE:Petitioner 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 purpose of fixing the status of a person and that there can b
e no judgment entered against anybody since there is no real plaintiff and defen
dant. (Alimpos vs. CA, 106 SCRA 159)
PURPOSE:The essential object and purpose of the writ of habeas corpus is to inqu
ire into all manner of involuntary restraint as distinguished from voluntary, an
d to relieve a person therefrom if such restraint is illegal.
And any further rights of the parties are left untouched by decision on the writ
, whose principal purpose is to set the individual at liberty. (Villavicencio vs
. Lukban, 39 PHIL 778)
Moncupa vs. Ponce Enrile:The petitioner was arrested and detained but subsequent
ly released on several conditions. One is that she has to regularly report to t
he Ministry of Defense. Second: she could not give interviews to local and fore
ign media without the approval of the Ministry of national Defense. Third: sh
e could not change residence without the approval of the Ministry. She filed a
petition for Habeas Corpus.
Respondents argued that she s no longer detained; she has been released.
SC said, it is not limited to physical incarceration. A release from detention
with condition, is a form of involuntary restraint on the freedom of action or l
ocomotion. That can be inquired into by a writ of habeas corpus.
GROUNDS FOR SUSPENSION OF THE WRIT UNDER THE CONSTITUTION
1. Invasion, when public safety requires it;
2. rebellion, when public safety requires it.
4blue 95:the moment a case is filed against you (or warrant is issued on you) th
en, habeas corpus is moot and academic.
4blue 95:writ of amparo is a writ use for enforcement of a constitutional right
as against an invalid government act.
4blue 95:if person is out in bail, he is not entitled to writ since his detentio
n is legal and technical and not actual restraint. Exception, in immigration cas
es, an immigrant under bond may contest an adverse decision of the immigration c
ommissioner by means of a petition for habeas corpus (Choa Fun v Sec of labor)
VOLUNTARY RESTRAINT
General Rule: Writ not available if restraint is voluntary
Exception: Writ will lie to enable the parents (or person having substituted par
ental authority) to recover custody of a minor child although she is in custody
of a 3rd person on her own volition.
NOTE: Voluntariness is viewed from the point of view of the person entitled to c
ustody.
Section 3. Requisites for application thereto.
VERIFIED PETITION MUST SET FORTH:
1. that the person in whose behalf the application is made is imprisoned or rest
rained of his liberty;
2. the name of the person, detaining another;
3. the place where he is imprisoned or restrained of his liberty
4. the cause of his detention
Section 18. When prisoner may be removed from one custody to another
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to jail;
3. By order of proper court of judge directing that he be removed from one place
to another within the Philippines for trial;
4. In case of fire, epidemic, insurrection, or other necessity or public calamit
y.
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 form the petitioner
by the respondent;
3. that it is to the best interest of the minor concerned to be in the custody o
f the petitioner and not that of respondent. (Sombong vs. CA, January 31, 1996)
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATIONTO THE CUSTODY OF
MINORS
(AM No. 03-04-04 SC)
Who may file Petition? A verified petition for the rightful custody of a minor m
ay be filed by any person claiming such right.
Where to file petition? FAMILY Court of the province or city where the petition
er resides or where the minor may be found.
Contents of 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 relationsh
ip to the petitioner and respondent.
3. the material operative facts constituting deprivation of custody;
4. such other matters which are relevant to the custody of minor.
NOTE: Motion to dismiss is not allowed except on the ground of lack of jurisdict
ion over the subject matter or over the parties.
NOTE: Respondent must file verified answer within 5 days from the service of sum
mons and copy of petition.
Jurisdiction Requirements
1. the verified petition should be published for three successive weeks in some
newspaper of general circulation in the province;
2. that both the title and caption of the petition and its body shall recite:
a) name/names or aliases of the applicant;
b) cause for which the change of name is sought;
c) new name asked for.
Section 4. Hearing
Section 5. Judgment
Section 6. Service of Judgment:Civil Registrar of the city or municipality where
the court is situated shall be furnished with a copy of the judgment.
PERIOD
0-2
CONSEQUENCE
2Petition
years
years
oftofor
ABSENCE
7 declaration
Appointment of absence
years Representative
and appointment of administrator or trustee
may be 7filed.
Beyond years
(absence ofdead
Considered 4 years
for all
underintents
extraordinary
an purposes
circumstance)
except for purpose of succession (un
der disappearance under extraordinary circumstances, considered dead for all pur
poses, even succession);
for purposes of marriage: 4 years continuous absence shall be sufficient for pre
sent spouse to remarry(2 years only under extraordinary circumstance)
WHO MAY FILE A PETITION FOR APPOINTMENT OF ADMINISTRATOR OR TRUSTEE:
1. the spouse present;
2. the heirs instituted in a will, who may present an authentic copy of the same
;
3. the relatives who would succeeded by the law of intestacy.
4. those who have over the property of the absentee some right subordinated to t
he condition of his death.
PURPOSE OF PETITION to appoint an administrator over the properties of the absen
tee. Hence, if absentee left no properties, such petition is unnecessary.
Section 3. Contents of petition.
1. The jurisdiction facts;
2. The names, age, and residences of the heirs instituted in the will, copy of w
hich shall be presented, and of the relatives who would succeed by the law of in
testacy;
3. The names and residence of creditors and others who may have any adverse inte
rest over the property of the absentee.
Republic Act No. 9048 which was passed by Congress on February 8, 2001 substanti
ally amended Article 412 of the New Civil Code, to wit;
Section 1. Authority to Correct Clerical or Typographical Error and Change of Fi
rst Name or Nickname No entry in a civil register shall be changed or corrected
without a judicial order, except for clerical or typographical errors and change
of first name or nickname which can be corrected or changed by the concerned ci
ty or municipal civil registrar or consul general in accordance with the provisi
ons of this Act and its implementing rules and regulations.
The above law speaks clearly. Clerical typographical in entries of the civil reg
ister are not to be corrected and changed without need of a judicial order and b
y the city or municipal civil registrar or consul general. The obvious effect is
to remove from the ambit of Rule 108 the correction or changing of such errors
in entries of the civil register. Hence, what is left for the scope of operation
of Rule 108 are substantial changes and correction is entries of the civil regi
ster. (Lee vs. CA, G.R. No. 118387, October 11, 2001)
Petition for change of name (Rule 103) and petition for cancellation or correcti
on of entries are DISTINCT PROCEEDINGS.
Hence, a party cannot change name and correct an entry in single petition witho
ut satisfying the jurisdictional requirements.
( Republic v. Balmore)
RULE 109 :APPEALS IN SPECIAL PROCEEDINGS
An interested person may appeal in special proceedings from such order or judgme
nt rendered which:
1. Allows or disallows a will;
2. Determination who are the lawful heirs or the distributive share of the estat
e to which such person is entitled;
3. Allows or disallows, in whole or in part, any claim against the estate of a d
eceased person, or any claim presented on behalf of he estate in offset to a cla
im 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 determ
ination in the lower court of the rights of the party appealing, EXCEPT that no
appeal shall be allowed from the appointment of a special administrator; and
6. Is the final order judgment rendered in the case, and affects the substantial
rights of the person appealing, UNLESS it be an order granting or denying a mot
ion for a new trial or for reconsideration.