Professional Documents
Culture Documents
Special Proceedings
Special Proceedings
Special Proceedings
Remedial Law
SUMMER REVIEWER
SPECIAL PROCEEDINGS
SPECIAL PROCEEDING
This is a remedy by which a party seeks to establish
a status, a right, or a particular fact. (Rule 1, Sec. 3c)
RULE 72
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES
Section 1. Subject matter of special proceedings
Section 2. Applicability of rules of civil actions
SUBJECT MATTER OF SPECIAL PROCEEDINGS
a. Settlement of estate of deceased persons
b. Escheat
c. Guardianship and custody of children
d. Trustees
e. Adoption
f. Rescission and revocation of adoption
g. Hospitalization of insane patient
h. Habeas corpus
i. Change of name
j. Voluntary dissolution of corporations
k. Judicial approval of voluntary recognition of
minor natural children;
l. Constitution of family home
m. Declaration of absence and death
n. Cancellation of correction of entries in civil
registry
OTHER SPECIAL PROCEEDINGS
a. liquidation proceedings
b. intra-corporate controversies
c. corporate rehabilitation
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d. recognition are
and
of arbitration
proceedings
e. vacation,
setting
aside,
correction or
modification of an arbitral award
f. any application with a court for arbitration
assistance and supervision
ACTION
To protect or enforce a
SPECIAL
PROCEEDINGS
To establish a status,
right, or to prevent or
redress a wrong
Initiated by Complaint
Definite Parties
Answer is filed
Handled by court of
general jurisdiction
Adversarial
Statute of Limitations
applies
15-day appeal period
place
where
minor/incompetent resides
If
non-resident
place
where
minor/incompetent has property
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
of
adoption:
RULE 73
VENUE AND PROCESS
Section 1. Where estate of deceased person
settled
Section 2. Where estate settled upon dissolution
of marriage
Section 3. Process
Section 4. Presumption of death
According to Circular No. 21-99 (15 April 1999), the
new jurisdictional amounts as adjudged under RA
7691 will be as follows:
File in the RTC:
Before 14
April 1999
In Metro
Manila
Outside
Manila
>P200,000
14 April
1999 31
December
2003
>P400,000
>P400,000
>P100,000
>P200,000
>P300,000
Beginning
Year 2004
P200,000
14 April
1999 31
December
2003
P400,000
P400,000
P100,000
P200,000
P300,000
In M.
Manila
Outside
Manila
Beginning
Year 2004
RULE 74
SUMMARY SETTLEMENT OF ESTATES
Section 1. Extrajudicial settlement by agreement
between heirs
Section 2. Summary settlement of estates of
small value
Section 3. Bond to be filed by distributees
Section 4. Liability of distributees and estate
Section 5. Period for claim of minor or
incapacitated person
GENERAL RULE
When a person dies, his estate is submitted to a
judicial settlement proceeding.
EXCEPTION: When estate need not be judicially
administered through an administrator or executor:
a. Extrajudicial settlement;
b. Summary settlement of estate of small value
(not exceeding P10,000)
EXTRAJUDICIAL SETTLEMENT
a. Does not require court intervention;
b. Value of estate is immaterial;
c. Allowed only in intestate succession;
d. Proper only where there are no outstanding
debts of the estate at the time of settlement;
e. Can be resorted to only at the instance and by
agreement of all heirs. (If heirs do not agree,
they may resort to an action for partition)
RULE 75
PRODUCTION OF WILL; ALLOWANCE OF WILL
NECESSARY
Section 1. Allowances necessary; Conclusive as
to execution
Section 2. Custodian of will to deliver
Section 3. Executor to present will and accept or
refuse trust
Section 4. Custodian and executor subject to fine
for neglect
Page 135 of 289
PROBATE OF WILL
It is a juridical act whereby an instrument is adjudged
valid and is ordered to be recorded. No will shall pass
property unless probated.
DIFFERENCES
BETWEEN
PETITION
FOR
PROBATE FILED BY THIRD PERSONS, AND BY
TESTATOR HIMSELF
Section 5.
committed
Person
retaining
will
may
Filed by testator
himself
Newspaper publication
not required
Personal notice sent only
to testators compulsory
heirs
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 1. Who may petition for the allowance of
will
WHO MAY PETITION FOR THE ALLOWANCE OF
A WILL:
a. Any creditor as preparatory step for filing his
claim therein;
b. Devisee or legatee
c. Person interested in the estate (heirs)
d. Executor
e. Testator himself during his lifetime.
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WHO MAY BE A PARTY
INseeAthisPROBATE?
Generally, any person having a direct and material
interest in the will or estate
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF
PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
Section 1. Will proved outside Philippines may be
allowed here
Section 2. Notice of hearing for allowance
Section 3. When will allowed, and effect thereof
Section 4. Estate, how administered
IN RE-PROBATE OF WILL PROVEN ABROAD,
PROPONENT MUST PROVE:
a. Testator was domiciled in the foreign country;
b. Will has been admitted to probate in such
country;
c. Foreign country was, under the laws of such
country, a probate court with jurisdiction;
d. Law on foreign probate procedure and proof of
compliance therewith;
e. Legal requirements in said country for valid
execution of will.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO WHOM
ISSUED
Section 1. Who are incompetent to serve as
executors or administrators
THE FOLLOWING ARE DISQUALIFIED FROM
SERVING
AS
EXECUTORS
OR
ADMINISTRATORS:
a. A minor;
b. A non-resident (of Phils.)
c. A person unfit in the opinion of the court to
execute the duties of his trust by reason of:
i. drunkenness;
ii. improvidence;
iii. want of understanding and integrity;
iv. conviction of an offense involving moral
turpitude.
Page 137 of 289
Administrator
Appointed by the court in
case the testator did not
appoint and executor or if
the executor refused or if
the will was disallowed or
there is no will (intestacy)
No such duty
RULE 80
SPECIAL ADMINISTRATOR
Section 1. Appointment of special administrator
Section 2. Powers and duties of special
administrator
Section 3. When powers of special administrator
cease; Transfer of effects; Pending suits
SPECIAL ADMINISTRATOR
He is appointed when there is a delay in granting
letters testamentary or of administration by any
cause, including an appeal from the allowance or
disallowance of the will.
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Rule 78 refers to the
appointment of a regular administrator.
Is the Order of Special Administrator appealable?
No, such is an interlocutory order.
Administrator
May be subject of appeal
One of the obligations is
to pay the debts of the
estate
Appointed when
deceased died intestate
or did not appoint an
executor in the will or will
was disallowed
Special Administrator
Not subject of appeal
Cannot pay debts of the
estate
Appointed when there is
delay in granting letters
testamentary or
administration
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RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
Section 1. Bond to be given before issuance of
letters; Amount; Conditions
Section 2. Bond of executor where directed in
will. When further bond required
and
UNDERTAKINGS
OF
BOND
OF
EXECUTOR/ADMINISTRATOR:
a. Make and return a complete inventory of the
property of the estate which has come to his
possession or knowledge, or the possession of
any person for him, within 3 months;
b. To administer the property of the estate
according to the Rules (if administrator) or
according to the will (if executor);
c. To render an account within 1 year and at any
other time required by the court; and
d. Perform all orders of the court.
RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF EXECUTORS
AND ADMINISTRATORS
Section 1. Administration revoked if will
discovered; Proceedings thereupon
Section 2. Court may remove or accept
resignation of executor or administrator;
Proceedings upon death, resignation, or removal
Section 3. Acts before revocation, resignation, or
removal to be valid
Section 4. Powers of new executor or
administrator
GROUNDS FOR REMOVAL OF EXECUTORS OR
ADMINISTRATORS:
a. Neglects to render account and settle the
estate according to law;
b. Failure to perform order or judgment of the
court or duty prescribed by the rules;
c. Absconds;
d. Becomes insane;
e. Incapable or unsuitable to discharge trust.
Acts before revocation
Lawful acts of an administrator or executor before the
revocation, resignation or removal are valid unless
proven otherwise.
RULE 83
INVENTORY AND APPRAISAL; PROVISION FOR
SUPPORT OF FAMILY
to:
Inventory and appraisal must be made within 3
months from the grant of letters.
PROPERTIES NOT TO BE INCLUDED IN
INVENTORY AS ASSETS OF THE ESTATE:
a. Wearing apparel of surviving spouse and minor
children;
b. Marriage bed and bedding; AND
c. Provisions and articles which will necessarily
be consumed in the subsistence of the
deceaseds family.
WHO ARE ENTITLED TO ALLOWANCE DURING
PROCEEDINGS?
a. Legitimate surviving spouse
b. Children of the decedent (need not be minors,
grandchildren sorry)
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS
Section 1. Executor or administrator to have
access to partnership books and property; How
right enforced
Section 2. Executor or administrator to keep
buildings in repair
Section 3. Executor or administrator to retain
whole estate to pay debts, and to administer
estate not willed
GENERAL
POWERS
AND
DUTIES
OF
EXECUTORS AND ADMINISTRATORS:
a. Have access to partnership books and
property;
b. Maintain in tenantable repair the houses and
other structures and fences belonging to the
estate and deliver the same to the heirs and
devisees when directed to do so by the court;
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c. Right to the possession and management of
the real and personal estate so long as it is
necessary for the payment of debt and
expenses of administration.
HOW
RIGHT
PARTNERSHIP
ENFORCED:
TO
HAVE
ACCESS
TO
BOOKS
AND
PROPERTY
RULE 85
ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS
Section 1. Executor or administrator chargeable
with all estate and income
Section 2. Not to profit by increase or lose by
decrease in value
Section 3. When not accountable for debts due
estate
Section 4. Accountable for income from realty
used by him
Section 5. Accountable if he neglects or delays to
raise or pay money
GENERAL RULE
The executor or administrator is accountable for the
whole estate of the deceased
EXCEPTION: He is not accountable for properties
which never came to his possession
EXCEPTION TO THE EXCEPTION: When through
untruthfulness to the trust or his own fault or for lack
of necessary action, the executor or administrator
failed to recover part of the estate which came to his
knowledge
Section 6. When allowed money paid as costs
Section 7. What expenses and fees allowed
executor or administrator
NOT PROPER EXPENSES OF ADMINISTRATION
WHICH ARE NOT CHARGEABLE TO ESTATE:
a. Services rendered by administrator which are
not beneficial to the estate in favor of an heir;
b. Premiums for her/his bond;
c. Expenses for repair of property of the estate
being used and occupied by him;
d. Expenses for keeping ordinary records and
receipts involved in his administration;
e. Losses incurred in conduct of business with
use of funds of the estate.
Page 140 of 289
RULE 86
CLAIMS AGAINST ESTATE
Section 1. Notice to creditors to be issued by
court
Section 2. Time within which claims shall be filed
NOTICE FOR FILING OF CLAIMS:
a. Published once a week for 3 successive week
in newspaper of general circulation;
b. Posted:
i. In 4 public places in PROVINCE of last
residence of decedent;
ii. In 2 public places in MUNICIPALITY of
decedents last residence.
CLAIMS WHICH MUST BE FILED WITH THE
PROBATE COURT:
a. All claims for money against decedent arising
from contract;
b. Claims for funeral expenses and for the last
illness;
c. Judgment for money.
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TIME FOR FILING
CLAIMS:
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Must be filed withinarethe
time specified by the court in
its notice, which period shall not be less than 6
months nor more than 12 months from the date of the
first publication of the notice.
approving
or
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
Section 1. Actions which may and which may not
be brought against executor or administrator
ACTIONS WHICH MAY BE COMMENCED
DIRECTLY AGAINST THE EXECUTOR OR
ADMINISTRATOR:
1. recovery of real or personal property or any
interest therein from the estate;
2. enforcement of a lien thereon;
3. action to recover damages for any injury to
person or property, real or personal (tortuous
acts).
These are actions that survive the death of the
decedent.
Romualdez v. Tiglao, 105 SCRA 762 (1981)
An action for revival of money judgment may be
filed against the administrator to pre-empt
prescription of judgment.
Section 2. Executor or administrator may bring or
defend actions which survive
Section 3. Heir may not sue until have share
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3.
4.
5.
6.
7.
NOTE:
However, the last three requisites are
unnecessary where the grantee is the executor or
administrator himself, in which event the action
should be in the name of all creditors.
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate sufficient
Writ of execution is
satisfy debts. Court
MORTAGE of the
proceeds of which
expenses.
to be
retained
to
meet
RULE 89
SALES, MORTGAGES, ANG OTHER
ENCUMBRANCES OF PROPERTY OF DECEDENT
Section 1. Order of sale of personalty
The court may order the whole or part of the
PERSONAL estate to be sold if necessary:
1. to pay debts and expenses of administration;
2. to pay legacies; or
3. to cover expenses or for the preservation of
the estate.
Section 2. When court may authorize sale,
mortgage, or other encumbrance of realty to pay
debts and legacies through personalty not
exhausted
1. If personal estate is NOT SUFFICIENT to pay
debts, expenses of administration and
legacies;
2. If sale of personal estate may injure the
business or interest of those interested in the
estate;
3. If testator has NOT made sufficient provision
for payment of such debts, expenses and
legacies;
4. If deceased was in his lifetime under contract,
binding in law to deed real property to
beneficiary (Section 8);
5. If the deceased during his lifetime held real
property in trust for another person (Section 9).
REQUISITES:
1. application of executor or administrator;
2. written notice to person interested; and
3. hearing.
NOTE:
Assets in the hands of executor or
administrator will not be reduced to prevent a creditor
from receiving his full debt or diminish his dividends.
Without notice and hearing the sale, mortgage or
encumbrance is void. Notice is mandatory. Noncompliance therewith under the sale is null and void.
Maneclang v. Baun, 208 SCRA 179 (1992)
The reason behind this requirement is that the
heirs are the presumptive owner.
Since they
succeed to all the rights and obligation of the
deceased from the moment of the latters death, they
Page 145 of 289
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
Section 1. When order for distribution of residue
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LIQUIDATION
This means the determination of all assets of the
estate and payment of all debts and expenses.
GENERAL RULE: ORDER OF DISTRIBUTION shall
be made AFTER PAYMENTS of all debts, funeral
expenses, expenses of administration, allowance of
widow and inheritance tax is effected.
INTERFERENCE
BY
RULE 91
ESCHEATS
the
3 INSTANCES OF ESCHEATS
1. When a person dies intestate leaving no heir
but leaving property
in the
(Section
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2. Reversion Proceedings Sale in violation of
the Constitutional provision; and
3. Unclaimed Balances Act (dormant accounts for
10 years shall be escheated).
What is the basis of the states right to receive
property in escheat? Order of succession under
KINDS OF GUARDIANS:
A. According to scope:
1. General over the person of the ward or over
his property
2. Limited over the property only.
B. According to Constitution:
1. General Guardian;
2. Legal
Guardian
without
judicial
appointment;
3. Guardian Ad Litem appointed by courts of
justice to prosecute or defend a minor, insane
or person declared to be incompetent, in an
action in court.
INCOMPETENT includes:
1. those suffering from penalty of civil interdiction;
2. hospitalized lepers;
3. prodigals;
4. deaf and dumb who are unable to read and
write;
5. those of unsound mind though they have lucid
intervals;
6. persons not of unsound mind but by reason of
age, disease, weak mind, and other similar
causes cannot, without outside aid, take care
of themselves or manage their property.
GUARDIANSHIP
Guardianship of minors is now governed by the
Rule on Guardianship of Minors (A.M. No. 03-0205-SC) which took effect on May 1, 2003. While,
guardianship of incompetents is still governed by
the provisions of the Rules of Court on
Guardianship (Rule 92 to Rule 97)
RULE 92
VENUE
Section 1. Where to institute proceedings
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RULE 93
APPOINTMENT OF GUARDIANS
Section 1. Who may petition for appointment of
guardian for resident
MINOR
(a) any relative; or
(b) other person on
behalf of a minor; or
(c) the minor himself if 14
years of age or over;
or
INCOMPETENT
(a) any relative; or
(b) friend; or
(c) other person on
behalf of the resident
incompetent who has
no parents or lawful
guardian; or
(d) the Director of Health
in favor of an insane
person who should
be hospitalized or in
favor of an isolated
leper (Sec. 1); or
Page 148 of 289
letters of guardianship
are prayed. (Sec. 7 of
A.M. No. 03-02-05SC)
(e) any one interested in
the estate of a nonresident incompetent
(Sec. 6)
INCOMPETENT
(a) The jurisdictional
facts;
(b) The incompetency
rendering the
appointment
necessary or
convenient;
(c) the probable value
and character of his
estate;
(d) the names, ages,
and residences of the
relatives of the
incompetent, and of
the persons having
him in their care;
(e) the name of the
person for whom
letters of
guardianship are
prayed. (Section 2 of
Rule 93)
(f) any one interested in
the estate of a nonresident incompetent
(Section 6)
be
given
through
publication
or
RULE 95
SELLING AND ENCUMBERING PROPERTY OF
WARD
Section 1. Petition of guardian for leave to sell or
encumber estate
RULE 94
BONDS OF GUARDIAN
Section 1. Bond to be given before issuance of
letters; Amounts; Conditions
Before an appointed guardian enters upon the
execution of his trust, he shall give a BOND.
CONDITIONS:
1. To make and return to the court, within three
(3) months, a true and complete INVENTORY
of all the estate, real and personal, of his ward
which shall come to his possession or
knowledge or to the possession or knowledge
of any other person for him;
2. To faithfully EXECUTE THE DUTIES of his
trust, to manage and dispose of the estate
according to these rules for the best interests
of the ward, and to provide for the proper care,
custody, and education of the ward;
3. To render a true and just ACCOUNT of all the
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of
the management and disposition of the same,
at the time designated by these rules and such
other times as the court directs; and at the
expiration of his trust to settle his accounts with
the court and deliver and pay over all the
estate, effects, and
moneys
remaining in his
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the person lawfully entitled thereto;
4. To PERFORM all orders of the court by him to
be performed.
Section 2. When new bond may be required and
old sureties discharged
Section 3. Bonds to be filed; Actions thereon
GROUNDS:
1. when income of estate is insufficient to
maintain the ward and his family; or
2. when income of estate is insufficient to
maintain and educate ward when a minor; or
3. when it appears that it is for the benefit of the
ward.
REQUIREMENTS:
1. petition must be verified;
2. notice must be give to the next of kin; and
3. hearing so that they may show cause why
petition should not be granted.
Section 2. Order to show cause thereupon
NEXT OF KIN
This pertains to those relatives who are entitled to
share in the estate of the ward under the Law on
Intestate Succession including those who inherit per
stirpes or by right of representation.
Notice to next of kin and interested persons is
JURISDICTIONAL.
Lindain v. CA, GR No. 95305 (1992)
Sale of the wards realty by the guardian without
authority from the court is VOID. Under the law, a
parent acting merely as legal administrator of the
property of his/her children, does NOT have the
power to dispose, or alienate, the property of said
minor without judicial approval.
Section 3. Hearing on return of order; Costs
Section 4. Contents of order for sale
encumbrance, and how long effective
The Order of Sale must specify the grounds.
or
RULE 97
TERMINATION OF GUARDIANSHIP
RULE 96
GENERAL POWERS AND DUTIES OF
GUARDIANS
Section 1. To what guardianship shall extend
Section 2. Guardian to pay debts of ward
Section 3. Guardian to settle accounts, collect
debts and appear in actions for ward
Section 4. Estate to be managed frugally and
proceeds applied to maintenance of ward
Section 5. Guardian may be authorized to join in
partition proceedings after hearing
Section 6. Proceeding when persons suspected
of embezzling or concealing property of ward
Section 7. Inventories and accounts of guardians,
and appraisement of estate
Section 8. When guardians accounts presented
for settlement, expenses and compensation
allowed
GENERAL
POWERS
AND
DUTIES
OF
GUARDIANS:
1. have the care and custody of the person of the
ward, and the management of the estate only,
as the case may be (Sec. 1);
2. pay the debts of the ward (Sec. 2);
3. settle accounts, collect debts and appear in
actions for ward (Sec. 3);
4. manage the estate of the ward frugally, and
apply the proceeds to maintenance of the ward
(Sec. 4);
5. render verified inventory within 3 months after
his appointment and annually thereafter upon
application of interested
(Sec. 7); and
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of the property for 1 year from his appointment
and every year thereafter (Sec. 8).
Every guardian, other than the wards parents, shall
be allowed the amount of his reasonable expenses,
and compensation which shall not exceed 15% of the
NET income of the estate.
RULE 98
TRUSTEES
EXECUTOR/
ADMINISTRATOR
Accounts are not
under oath and
except for initial
and final
submission of
accounts, they
shall be filed only
at such times as
may be required
by the court.
Court that has
jurisdiction may be
MTC or RTC.
GUARDIAN
TRUSTEE
Accounts must
be under oath
and filed
annually.
Accounts
must be
under oath
and filed
annually.
Court which
has jurisdiction
is RTC
(incompetent)
or Family Court
(minor).
Court which
has
jurisdiction is
MTC or RTC
if appointed to
carry into
effect
provisions of
a will; if
trustee dies,
May sell,
encumber or
mortgage property
if it is necessary
for the purpose of
paying debts,
expenses of
administration or
legacies, or for the
preservation or
property or if sale
will be beneficial
to the heirs,
legatees or
devisees.
Order of sale has
no time limit
Appointed by the
court to settle
estate of
decedent.
May sell or
encumber
property of
ward if income
of estate is
insufficient to
maintain ward
and his family
and educate
the minor; the
sale or
encumbrance
is for the
benefit of ward
upon order of
the court.
Order of sale is
valid for only 1
year after grant
of the same.
Appointed as
guardian.
Not exempted
Must always
from filing bond
file a bond.
even if such
exemption is
provided in the will
(bond is only
conditioned upon
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Services of
executor or
administrator are
terminated upon
payment of debts
and the estate and
distribution of
property to heirs.
Guardianship
is terminated
upon
attainment of
age of majority
of the minor or
upon gaining
competency in
resigns or
removed in a
contractual
trust, RTC
has
jurisdiction in
the
appointment
of new
trustee.
May sell or
encumber
property of
estate held in
trust if
necessary for
expedient
upon order of
the court.
Order of sale
has no time
limit
Appointed to
carry into
effect the
provisions of
a will or
written
instrument
(contractual
trust).
May be
exempted
from filing
bond if
provided in
the will or if
beneficiaries
requested
exemption.
Trusteeship is
terminated
upon turning
over the
property to
beneficiary
after
expiration of
the case of an
incompetent
(need court
order for the
latter).
trust (period
may be
provided for in
the will or
trust
contract).
No obligations
to pay debts
of beneficiary
or trustor.
3. Hearing.
Who may petition? Parties beneficially interested.
GROUNDS
1. removal appears essential in the interest of
petitioners;
2. insanity;
3. incapability of discharging trust;
4. unsuitability.
Section 9. Proceedings for sale or encumbrance
of trust estate
Rules on Sale and Encumbrance of Trust Estate shall
conform as nearly as may be to the provisions on
Sale and Encumbrance by Guardians.
ADOPTION
The provisions of the Rules of Court on Adoption
have been amended by the Domestic Adoption
Act of 1998 and Inter-country Adoption Act of
1995.
Sec. 6 of Rule 99 was amended by
Administrative Circular No. 03-04-04 while Sec. 7
of Rule 99 was amended by Administrative
Circular No. 02-1-19-SC. Effective August 22,
2002, there is a new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN REM,
which creates between two persons a relationship
similar to that which results from legitimate paternity
and filiation.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the
enhancement of his opportunities for a useful and
happy life, and every intendment is sustained to
promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES?
1. capacity of the adopters;
2. whether the adoption would be for the best
interest of the child.
Teotico v. Del Val, L-18753 (1956)
Adoption is strictly personal between the adopter
and the adopted.
JUDICIAL
ADOPTION
EXTRAJUDICIAL
ADOPTION
Proper in inter-country
adoption.
Under the jurisdiction of
the Inter-Country
Adoption Board (but a
petition may also be filed
with the Family Court
[where adoptee resides]
which will turn it over to
ICAB).
Trial custody is in the
country of adopter and is
mandatory before a
decree of adoption is
issued (expenses are
borne by the adopter).
Petition for adoption only.
Application may be
through agency in
foreign country and then
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Decree of adoption are needed to seeDecree
of adoption
issued by FC which has
issued by a foreign
jurisdiction over the case. court.
GENERAL RULE:
Husband and wife shall jointly adopt.
EXCEPTIONS:
where
the
PROCEDURE
A. ORDER OF HEARING (Sec 12)
- Must be published at least once a week for
3 CONSECUTIVE WEEKS.
- At the discretion of the court, copies of the
order of hearing shall be furnished to the
office of the Sol.Gen. through the provincial
or city prosecutor,
the
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KNOWN.
- If a change in the name of the adoptee is
prayed for in the petition, notice to 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
adopter
INTER-COUNTRY ADOPTION
Where to file Petition (Sec. 28)
1. A verified petition to adopt a Filipino child
may be filed by a foreign national or Filipino
citizen permanently residing abroad with the
Family Court having jurisdiction over the
place where the child resides or may be
found.
2. It may be filed directly with the Inter Country
Adoption Board.
WHO MAY ADOPT
1. Any
alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27)years of age;
2. Other requirements same as with RA 8552
must
EXCEPTION:
Same as Exemptions from
requirements of residency and certification
E. DECREE OF ADOPTION
If issued, this will take effect as of the date of
filing of the original petition.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall be issued.
The original birth certificate shall be stamped
cancelled and shall be sealed in the Civil
Registry records.
NOTE: The new birth certificate to be issued
to the adoptee shall
not bear
any notation that
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EFFECTS OF ADOPTION
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate child of
adopter for all intents and purposes;
RESCISSION OF ADOPTION
Under the Domestic Adoption of 1998, the
ADOPTER CAN NO LONGER RESCIND the
adoption, he can he adoptee in accordance with the
provisions of the Civil Code.
Direct attack.
Failure of respondent to
file comment will not be
punished by contempt
and will not even be
declared in default.
Court and prevailing
party are named as
respondents.
Respondent
detainer.
is
the
RULE 102
HABEAS CORPUS
CERTIORARI,
PROHIBITION AND
MANDAMUS
Special civil action under
Rule 65.
HABEAS CORPUS
Special proceeding.
NATURE
Alimpoos v. CA, 106 SCRA 159 (1981)
Petition for habeas corpus is LIKE A
PROCEEDING IN REM because it is an inquisition
by the government, at the suggestion and instance of
an individual, most probably, but still in the name and
capacity of the sovereign. It is also instituted for the
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person entitled to custody.
RTC
Enforceable only within
their respective judicial
region.
Returnable only to itself
PRELIMINARY CITATION
Where a person detained under governmental
authority and the illegality of his detention is not
patent from the petition for the writ, the court may
issue a citation to the government officer having the
person in her/his custody to show cause why the writ
should not issue.
PEREMPTORY WRIT
It is issued when the cause of detention appears to
patently illegal and the non-compliance therewith is
punishable
Elepante v. Madayag, G.R. No. 92586 (1991)
An appeal in Habeas Corpus proceedings should
be perfected (i.e. by filing Notice of Appeal) within 48
hours, compliance with which is mandatory and
jurisdictional. In counting the 48 hours, the date on
which the decision was promulgated is not counted,
and the period starts to run the following day.
NOTE: Please try to read the PROPOSED RULE
ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS which shall apply to petitions for custody of
minors and writs of habeas corpus in relation to
minors. (A.M. No. 03-04-04-SC, effective 15 May,
2003)
Tung Chin Hui v. Rodriquez, G.R. No. 141767
(2001)
Ps confinement is in accord with 37 (a) of the
Philippine Immigration Act of 1940, as amended,
which reads as follows: 37. (a) The following aliens
shall be arrested upon the warrant of the
Commissioner of Immigration or of another officer
designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration
after a determination by the Board of Commissioners
of the existence of the ground for deportation as
charged against the alien: xxx (7) Any alien who
remains in the Philippines in violation of any limitation
or condition under which he was admitted as a nonimmigrant.
Section 6. To whom writ directed, and what to
require
DIRECTED TO OFFICER AND COMMANDS HIM
TO:
1. Produce the body of person before the court ;
and
2. Show cause of the imprisonment or restraint.
PERIOD OF APPEAL
Within 48 hours from notice of the judgment or final
order appealed from (Section 39 BP 129). Form of
appeal is NOTICE OF APPEAL.
Section 16. Penalty for refusing to issue writ, or
for disobeying the same
Section 17. Person discharged not to be again
imprisoned
We hold that such a reservation is repugnant to the
government of laws and not of men principle. Under
this principle, the moment a person is acquitted on a
criminal charge he can no longer be detained or rearrested for the same offense. (Moncupa vs. Enrile,
supra)
Section 18. When prisoner may be removed from
one custody to another
1. By legal process;
2. Prisoner is delivered to a inferior officer to
carry to jail;
3. By order of proper court or judge directing that
he be removed from one place to another
within the Philippines for trial;
4. In case of fire, epidemic, insurrection or other
necessary or public calamity.
Section 19. Record of writ, fees and costs
When does court acquire jurisdiction over person
of respondent?
The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person of
the respondent BY MERE SERVICE OF WRIT.
RULE 103
CHANGE OF NAME
Section 1. Venue
RTC of the province where the petitioner has been
residing for 3 years prior to the filing of the petition.
Section 2. Contents of petition
THE PETITION SHALL SET FORTH:
1. That petitioner is a bona fide resident of the
province for at least 3 years prior to the date of
the filing of the petition
2. Cause for which the change of name is sought
3. Name asked for (2)
4. All names and aliases of petitioner (Republic v.
Zosa)
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Judicial (RTC)
Includes change in
surname
RA NO. 9048
CORRECTION OF
CLERICAL OR
TYPOGRAPHICAL ERROR
Extrajudicial (local civil
registrar or consul general in
case of non-resident citizen)
Covers clerical or
typographical error and
change of first name or
nickname
4 months
Hearing
30 days
Election
RULE 104
VOLUNTARY DISSOLUTION OF CORPORATIONS
Section 1. Where, by whom and on what showing
application made
Section 2. Order thereupon for filing objections
Section 3. Hearing, dissolution, and disposition
of assets; Receiver
Section 4. What shall constitute record
NOTE: Repealed by Sections 118 and 119 of the
Corporation Code
RULE 105
JUDICIAL APPROVAL OF VOLUNTARY
RECOGNITION OF MINOR NATURAL CHILDREN
Section 1. Venue
Section 2. Contents of petition
Section 3. Order for hearing
Section 4. Opposition
Section 5. Judgment
Section 6. Service of judgment upon civil
registrar
RECOGNITION OF NATURAL CHILDREN (Art.
278, NCC)
Only evidence accepted
a. Record of birth
b. Will
c. Statement before court of record
d. Any authentic writing
RULE 106
CONSTITUTION OF FAMILY HOME
Section 1. Who may constitute
Section 2. Contents of petition
Section 3. Notice and publication
Section 4. Objection and date of hearing
Section 5. Order
Section 6. Registration of order
NOTE: Amended by Articles 152 and 153 of the
Family Code.
RULE 107
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RULE 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition
Any person interested in any act, event, order or
decree concerning the civil status of persons.
RTC of the province where the corresponding civil
registrar is located.
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Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments or marriage;
Judgments declararing marriages void from the
beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural children;
10.Naturalization;
11.Elections, loss or recovery of citizenship;
12.Civil interdiction;
13.Judicial determination of filiation;
14.Voluntary emancipation of a minor;
15.Change of name
Section 3. Parties
1. Civil registrar;
2. All persons who have or claim any interest
which would be affected thereby.
Section 4. Notice and publication
Order of hearing shall be published once a week for 3
consecutive weeks in a newspaper of general
circulation in the province and all persons named in
the petition shall be notified.
Section 5. Opposition
Within 15 days from notice of the petition or from date
of last publication.
Section 6. Expediting proceedings
Section 7. Order
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SCOPE:
a. Clerical / typographical errors
b. Change of first name / nickname
CLERICAL OR TYPOGRAPHICAL ERROR
It is a mistake committed in the performance of
clerical work in writing, copying, transcripting or
RULE 108
Summary judicial
proceeding
Petition is filed
No penalty clause
Publication requirement:
3 consecutive weeks
No posting
Change of name is to
correct clerical /
innocuous errors
distribution
in
special
APPEAL IN SPECIAL
PROCEEDINGS
30 days
Record on appeal and
docket fees
May
extend
on
territorious grounds
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which
appeals may be taken
An interested person may appeal in special
proceedings from such order or judgment rendered
which:
1. Allows or disallows will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any
claim against the estate of a deceased person,
or any claim presented on behalf of the estate
offset to a claim against it;
4. Settles the account of a executor,
administrator, trustee or guardian.
5. Constitutes, in the proceedings relating to the
settlement of the estate of a deceased person,
or the administration of a trustee or guardian,
a final determination of a trustee or guardian,
a final determination in the lower court of the
rights of the party appealing, EXCEPT that no
appeal shall be allowed from the appointment
of a special administrator; and
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case, and affects the substantial rights of the
person appealing, UNLESS it be an order
granting for denying a motion for a new trial or
for reconsideration.
ORDERS THAT ARE NOT APPEALABLE
1. Order directing administrator to take action to
recover amount due to the estate;
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