Professional Documents
Culture Documents
Spec Pro-Pros. Centeno
Spec Pro-Pros. Centeno
Spec Pro-Pros. Centeno
(Additional Notes from SLU Review Notes) e. A bond must be posted with the Register of
SPECIAL PROCEEDINGS Deeds in an amount equivalent to the value of
the personal property
SETTLEMENT OF ESTATE OF DECEASED • The decedent is presumed to have left no
PERSONS debts if no creditor files a petition for
letters of administration within 2 years
RULE 73 after the death of the decedent..
VENUE AND PROCESS
In Summary Settlement of estates of small value what
Sec. 1. Where estate of the deceased person settled. are the requisites?
If the decedent was a resident of the a. Gross value of the estate does not exceed P
Philippines at the time of his death whether a 10,000.00
citizen or an alien, the RTC or MTC, as the case b. Application is filed in the MTC
may be, of the province in where he resides at c. Publication, once a week for 3 consecutive
the time of his death weeks in a newspaper of general circulation in
If the decedent was not a resident of the the province
Philippines at the time of his death in the RTC or MTC d. Notice to interested persons
of any province where he has his estate. e. Debts, if there be any are all paid
• Claims should be made within 2 years
after the settlement and distribution of
• The RTC or MTC is acting as a probate court, the estate
therefore it is a court of limited jurisdiction- • If the claimant is a minor or mentally
that it can only decide on matters which are incapacitated or in prison or outside of
proper, matters that are alien to said the Philippines, he may present his claim
proceedings cannot be decided upon. within one year after such disability is
• Exceptions: Question on ownership may removed.
properly be decided upon by the probate
court if the conflicting claimants as owners How may liabilities of the estate or the distributees be
are all heirs of the decedent and they all agree enforced?
to submit the question of ownership for 1. if there has been extrajudicial settlement of
determination by the probate court the estate, the heir who has been unlawfully
• During the process of inventory of the deprived of his participation, or a creditor
property of the estate of the decedent, in may compel the judicial settlement of the
order to determine whether or not certain estate, unless they agree otherwise or agree
properties should be included in such inventory, on a repartition or the heir unduly deprived
agrees to be paid in money or if he be a
as belonging to the decedent’s estate, the probate creditor, the heirs or distributes agree to pay
him.
court may decide prima facie the ownership of 2. if thee was summary settlement, the heir or
other person unlawfully deprived of
said properties. participation may file a motion for reopening
in the same summary proceeding and the
court after hearing, shall order a repartition of
RULE 74
said share
SUMMARY SETTLEMENT OF ESTATES
only one heir has been instituted in the will, Q: X executed his will instituting A, B and C, his
there must still be the judicial order of children and Y, his wife as heirs. There is a
adjudication. (Lopez vs. Gonzaga, L-18788, 31 pending case for forgery filed by Y, A and B
Jan. 1964) against C alleging that he forged the signature
of his father. At the same time, the will was
Q: What is meant by probate? submitted to probate and it was approved or
A: Probate is the act of proving before a allowed. State the effect of the allowance of
competent court the due execution of a will by the will.
a person possessed of testamentary capacity A: The allowance of the will is conclusive as to its
and the approval thereof by the said court. due execution; hence, the allowance shall
effect the dismissal of the case of forgery
Q: What is the nature of a probate proceeding? against C.
A: Probate of a will is proceeding in rem. It
cannot be dispensed with and substituted by Q: What is the duty of the custodian of a will
another proceeding, judicial or extrajudicial, after he comes to know of the death of the
without offending public policy. It is testator?
mandatory as no will shall pass either real or A: The person who has custody of a will shall,
personal property unless proved and allowed within 20 days after he knows of the death of
in accordance with the rules of Court. It is the testator, deliver the will to the court
imprescriptible, because it is required by having jurisdiction, or to the executor named
public policy and the estate could not have in the will. (Sec. 2).
intended to defeat the same by applying
thereto the statute of limitation of Q: What should the executor named in the will
actions.(Guevara vs. Guevara, 74 Phil. 479; do upon his knowledge of the death of the
Mirasol vs. Magsusi, L-12166, April 29,1959; testator or upon knowledge of his having been
Sec. 1, rule 75; Art. 838, NCC; see also Solivio named as executor?
vs.CA, 129SCRA 119[1990]). A: He shall, within 20 days from obtaining
knowledge of the death of the testator or of
Q: What are the two stages in the probate of a his having been named as executor, present
will? the will to the court having jurisdiction, unless
A: They are: it has reached the court in any other manner,
(1) The first is the probate proper. This deals and shall, within such period, signify to the
with the extrinsic validity of the will court in writing his acceptance of the trust or
where its legal existence will be passed his refusal to accept it. (Sec.3).
upon. Under this stage, the probate court
decides only on the conclusiveness of the Q: If the custodian or executor of a will fails to
will as to its due execution and validity. submit the will, what may the court do?
The court has no power to pass upon the A: If the neglect or failure to produce the will is
validity of any provision made in the will without satisfactory excuse, the court may
until after the will has been adjudged first fine him in the amount not exceeding P
as being extrinsically valid. (Castanede vs. 2,000.00. (Sec. 4)
Alemany , 3 Phil. 426)
(2) The second stage deals on the inquiry Q: An order of the court for the custodian of the
into the intrinsic validity of the will of X was issued for the production of the
provisions of the will and the distribution will in court, but he neglected to do it. What
of the property according to the will. This may the court do to him?
second stage will commence only if the A: A person having custody of a will after the
probate proper allows the will and the death of the testator who neglects without
order of allowance is final. If the will is reasonable cause to deliver the same, when
disallowed in the probate proper, there is ordered to do so to the court having
no occasion to proceed to the second jurisdiction, may be committed to prison and
stage. there kept until he delivers the will. (Sec. 5).
Q: What is the effect of the allowance of a will? Q: A, B and C are the heirs of X instituted in his
A: The allowance of a will shall be conclusive as will. After his death, they entered into an
to its due execution. (Sec. 1) extrajudicial settlement of X's estate without
the will having been probated. Is their action
proper? Why?
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A: No, they shall have brought the will to the (c) The name of the person for whom letters
court first and have it probated, because no are prayed;
will shall pass either real or personal property
unless it is proved and allowed in the proper (d) If the will has not been delivered to the
court. court, the name of the person having
custody of it.
Q: X executed a will instituting his heirs. Can the
heirs have an extrajudicial settlement of X's But no defect in the petition shall render void
estate? the allowance of the will, or the issuance of
A: Yes, but they must first submit the will for letters testamentary or of administration with
probate. If admitted, they can divide the estate the will annexed.
according to its terms which cannot be varied.
The rule is so because probate of a will is Q: What are the jurisdictional facts required to
compulsory. (Guevara vs. Guevara, 74 Phil. be alleged in the petition for probate?
479).
A: They are:
Q: Is there a prescriptive period for the probate A: It shall fix a time and place for proving the will
of a will? where all concerned shall appear to contest
the allowance thereof, and shall cause notice
A: There is no prescriptive period for the of such time and place to be published three
probate of a will. The petition for probate is (3) weeks successively, in a newspaper of
required by public policy and may be filed at general circulation in the province. (Sec.3).
any time after the death of the testator. The heirs, devisees, legatees and executors
(Guevarra vs. guevarra, 98 Phil. 249) shall also be notified at their places of
residence and deposited in the post office at
Q: State the contents of a petition for the least 20 days before the hearing. It shall also
allowance of a will. be mailed to the executor if he is not the
petitioner. Personal service at least 10 days
A: A petition for the allowance of a will must before the day of hearing is equivalent to
show, so far as known to the petitioner mailing (Sec. 4).
(a) The jurisdictional facts; The personal service of notice upon the heirs
is a matter of procedural convenience and not
(b) The names, ages, and residence of the a jurisdictional requisite. (In re estate of
heirs, legatees, and devisees of the Johnson, 39 Phil. 156; In re testate estate of
testator or decedent; Suntay, 95 Phil. 500; Abut vs. abut, L-26743,
31 May 1972) However, individual notice is
(c) The probable value and character of the necessary if the heirs, legatees or devisees are
property of the estate; known and such requirement cannot be
satisfied by mere publication. (De Aranz vs.
Galing, 161 SCRA 628 [1988]).
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the handwriting of the testator and others, as The testator may, in his turn, present such
would be pertinent and competent if the additional proof as may be necessary to rebut
original will were present. (Sec. 7). the evidence of the contestant.(Sec. 12).
Q: State the procedure in the probate of a will if Q: What shall be done if the will is proved?
the witnesses are dead or insane or do not A: If the court is satisfied, upon proof taken and
reside in the Philippines. filed, that the will was duly executed, and that
A: If it appears at the time fixed for the hearing the testator at the time of its execution was of
that the subscribing witnesses are dead or sound and disposing mind, and not acting
insane, or that none of them resides in the under duress, menace, and undue influence,
Philippines, the court may admit the or fraud, a certificate of its allowance, signed
testimony of other witnesses to prove the by the judge and attested by the seal of the
sanity of the testator, and the due execution of court shall be attached to the will and
the will; and as evidence of the execution of certificate filed and recorded by the clerk.
the will, it may admit proof of the handwriting Attested copies of the will devising real estate
of the testator and of the subscribing and of certificate of allowance thereof, shall be
witnesses, or of any of them.(Sec. 8). recorded in the register of deeds of the
province in which the lands lie.(Sec.13).
Q: State the grounds for the disallowance of a
will.
A: The will shall be disallowed in any of the Rule 77
following cases: ALLOWANCE OF WILL PROVED OUTSIDE OF
(a) If not executed and attested as required PHILIPPINES AND ADMINISTRATION OF ESTATE
by law; THEREUNDER
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the Q. May a will proved in a foreign country be
time of its execution; allowed and filed in the Philippines?
(c) If it was executed under duress, or the
influence of fear, or threats; A. Yes wills proved and allowed in a foreign
(d) If it was procured by undue and improper country, according to the laws of such
pressure and influence, on the part of the country, may be allowed, filed, and recorded
beneficiary, or of some other person for by the proper MTC or RTC in the Philippines.
his benefit;
(e) If the signature of the testator was Q. What shall the court do upon the filing of a
procured by fraud or trick, and he did not petition for allowance of a will allowed
intend that the instrument should be his outside of the Philippines?
will at the time of fixing his signature
thereto.(Sec.9). A. The court shall fix the time and place for the
hearing, and cause notice thereof to be given
Q: What should a person contesting the as in the case of an original will presented for
allowance of a will do? allowance.(Sec.13).
A: Anyone appearing to contest the will must Q. What must be proven in the re-probate of a
state in writing the grounds for opposing its will in the Philippines?
allowance, and serve a copy thereof on the
petitioner and other parties interested in the A. The following must be proven:
estate. (Sec. 10) (1) That the testator was domiciled in the
foreign country;
Q: What proof is necessary if the testator himself (2) That the will has been admitted to
files the petition for probate? probate in such country;
A: Where the testator himself petitions for the (3) That the foreign court was, under the
probate of his holographic will and no contest laws of said foreign country, a probate
is filed, the fact that he affirms that the court with jurisdiction over the
holographic will and the signature are in his proceedings;
own handwriting, shall be sufficient evidence (4) The law on probate procedure in said
of the genuineness and due execution thereof. foreign country and proof of compliance
If the holographic will is contested, the therewith; and,
burden of disproving the genuineness and due
execution thereof shall be on the contestant.
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(5) The legal requirements in said foreign houses were nonexistent; that the settlement of the
country for the valid execution of the will. estate can be made summarily because of its small
(Testate of Suntay, 95 Phil 500) value and that the ordinary civil action is necessary to
recover the lands in possession of third
Q. What is the effect if a will allowed in a foreign persons.(Sebial v. Sebial, 64 SCRA 385)
country is allowed in the Philippines? a) Is the contention of the oppositors
tenable, that the probate court has no
A. If it appears at the hearing that the will should jurisdiction considering that the
be allowed in the Philippines, the court shall inventory of the properties of the
so allow it, and certificate of its allowance, deceased was filed beyond the three
signed by the judge, and attested by the seal of month period as required under law?
the court, to which shall be attached a copy of b) Why is there a need for the inventory?
the will, shall be filed and recorded by the c) What is the nature of the inclusion of a
clerk, and the will shall have the same effect property in the inventory?
as if originally proved and allowed in such d) What articles are not included in the
court. (Sec 3) inventory?
e) Who are entitled to allowances from the
Q. What shall be done after a will allowed in a estate?
foreign country shall have been allowed in the
Philippines? Answers:
A. When a will is thus allowed, the court shall a) The contention of the oppositors are
grant letters testamentary, or letters of devoid of merit.
administration with the will annexed, and General Rule: Section 1, Rule 83;
such letters testamentary or of Inventory and appraisal to be returned
administration, shall extend to all the estate of within three months.- Within three (3)
the testator in the Philippines. Such estate, months after his appointment every
after the payment of just debts and expenses executor or administrator shall return to
of administration, shall be disposed of the court a true inventory and appraisal
according to such will, so far as such will may of all the real and personal estate of the
operate upon it; and the residue, if any shall deceased which has come into his
be disposed of as is provided by law in cases possession or knowledge. In the
of estates in the Philippines belonging to appraisement of such estate, the court
persons who are inhabitants of another state may order one or more of the inheritance
or country. (Sec. 4). tax appraisers to give his or their
assistance.
Answers:
a) 1. Money claims, debts incurred by the deceased e) CONTINGENT CLAIM: uncertainty of
during his lifetime arising from contract: liability
a) express or implied; -conditional claim or claim that
b) due or not due; and can be enforced upon the
c) absolute or contingent happening of a future uncertain
2. Claims for funeral expenses and for the last event.
illness of the decedent.
NOTE: All Claims means Money -Alternative remedy – creditor
who is barred by the Statute Of
b) Notices to creditors are immediately Non-Claims may file a claim as a
issued after granting letters testamentary or of counterclaim in any suit that the
administration executor or administrator may
bring against the claimant.
PURPOSE: The object of the law in fixing
the time within which claims against the f) -Claim should be filed against decedent
estate may be filed is for the speedy as if he were the only debtor without
settlement of the affairs of the deceased prejudice on the
person and early delivery of the property of part of the estate to recover contribution
the estate into the hands of the persons from the other debtor.
entitled to receive it.
-if obligation is joint the claim must be
➢ Claims arising after the death cannot be confined to the portion belonging to the
presented except for funeral expenses and decedent.
expenses of the last sickness of the decedent.
➢ Claims for taxes due and assessed after the g) REMEDIES OF THE CREDITOR:
death of the decedent need not be presented 1. Abandon security and prosecute his
in the form of a claim. The court in the claim against the estate and share in
exercise of its administrative control over the the same general distribution of the
executor or administrator may direct the asses of the estate.
latter to pay such taxes. And the heirs, even 2. Foreclose by action in court making
after distribution are liable for such taxes. executor or administrator a party
defendant and if there is judgment for
c) Not more than 12 months nor less than deficiency he may file a claim against
six months after the date of the first the estate.
publication of notice at the discretion of 3. Rely solely on his mortgage and
the court.(Sec. 2) foreclose the name at anytime within
-Failure to file the claim within said the period of the statute of limitations
period will bar recovery by creditor. but he cannot be admitted as creditor
-Statute of Non-claims supersedes the and shall not receive in the
Statute of Limitations insofar as the distribution of the other assets of the
debts of deceased persons are estate;
concerned. However, both statute of These remedies are alternative
Non-Claims and Statute of the availment of one bars the
Limitations must concur in order for availment of other remedies.
a creditor to collect.
h) -Judgment against executor and administrator
d) BELATED CLAIMS are claims not filed shall not create any lien upon the property of
within the original period fixed by the the estate or does not constitute a specific lien
court. It may not be entertained which may be registered on such property.
anymore after the order of distribution is -Judgment of a probate court approving or
entered. Upon the application of a disapproving a claim is appealable.
creditor who has failed to file its claim
within the time fixed, the court may, for NOTE: the mode of appeal is record on appeal and
cause shown and on such terms as are must be filed within 30 days from notice of judgment
equitable allow such belated claim to be
filed within a time NOT exceeding 1
month. RULE 87
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2. Leave is granted by court to creditor the province wherein his property or part
as prescribed in Section 10, and thereof is situated ( Sec 1, Rule 92; BP 129 ).
3. Bond is filed by creditor as
prescribed in this provision and; May issues of ownership be threshed out by the
4. Action by creditor is in the name of guardianship court?
the executor or administrator.
NO. Where in a guardianship case, an issue
Note: These requisites need not be arises as to who has a better right or title to properties
complied with if the grantee of the conveyed in the course of the guardianship
fraudulent conveyance is the proceedings, the controversy should be threshed out
executor or administrator himself, in in a separate ordinary action as the dispute is beyond
which event the action should be in the jurisdiction of the guardianship court (Parco et. al
the name of all creditors. vs. CA , et.al, Jan. 30, 1982).
However where the right or title of the ward
to the property is clear and undisputable, the
RULE 92 guardianship court may issue an order directing its
GUARDIANSHIP delivery or return.
( Paciencte vs. Dacuycuy, June 29, 1982 ).
What is GUARDIANSHIP
➢ Is the power of protective authority given by law
and imposed on as individual who is free and in WHO ARE INCOMPETENT?
the enjoyment of his rights, over one whose
weakness on account of his age or other infirmity Under Sec. 2, Rule 92, those considered incompetent
renders him unable to protect himself. are the ff:
( Sec. 2 , Rule 93 ): appears that those omitted joined in the petition for
the appointment of a guardian, the defect is cured and
1. T he jurisdictional facts. the court may proceed.
2. the minority or incompetency rendering the Service of notice upon the minor if
appointment necessary or convenient. above 14 years or upon the incompetent person is
3. the names, ages and residence of the relatives of the essential. Without such service of notice, the court
minor or incompetent and of the persons having him acquires no jurisdiction.
in their care. ( Yanco vs. CFI of Manila, 29 Phil 184; Nery et al vs.
4. The probable value and character of his estate. Lorenzo, April 27, 1972 ).
5. The name of the person for whom letters of
guardianship are prayed. When the incompetent is an insane person
❖ The petition should be verified, but no defect and is under the custody of the San Lorenzo Hospital,
in the petition or verification shall void the service of the notice to the Director of the hospital is
issuance of letters of guardianship. ( Sec. 2, sufficient.
Rule 93 ). ( In Re Guardianship of JR de Inchausti, 40 Phil 506 )
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over the objection of the child’s mother. their manner of life is such as render it probable that it
Under art. 328 and 329 of the NCC, a mother will be detrimental to the interest of the infants to be
who contracts a subsequent marriage loses in their custody, their claims will be denied and other
parental authority over her children and that persons shall be appointed as guardians.
when the mother of an illegitimate child
marries a man other than the father, the court Parents, however, are preferred and it is a
may appoint a guardian for the child. ( rule established by judicial decisions and in many
Balatbat vs. Balatbat, Feb. 23, 1956 ). jurisdictions by express statute, that when a guardian
is appointed by the court, the parents are entitled to
In the case of guardianship of a nonresident preference, over all other persons. The father is
minor or incompetent, it is the latter’s estate situated preferred and in case he is dead, the mother.
here in the Philippines that is subject to guardianship.
SERVICE OF JUDGEMENT ( Sec. 8, Rule 93 )
Notice of the petition for guardianship by If the minor or incompetent resides in the
publication or otherwise, must be given to the Philippines, service of judgment is upon the civil
nonresident or incompetent. ( Sec. 6, Rule 93 ). Under registrar of the municipality or city where the minor
the same rule, a natural person or a juridical person in or incompetent resides.
the trust business, like trust companies, trust If the minor or incompetent resides outside of
corporations or trust banks may be appointed the Philippines, then service of judgment is upon the
guardian of the estate. civil registrar of the place where his property or part
thereof is situated.
least as against third persons without notice. an order issue authorizing such sale or encumbrance.
(Sec. 1, Rule 95)
OBJECT OF THE BOND
To provide security to those interested in the proper 2. A copy of the notice of hearing shall be furnished to
settlement of the properties of the ward. the next of kin of the ward and all other persons
The conditions of the guardian’s bond also constitute interested in the estate. (Sec. 2, Rule 95)
the duties and obligations of a guardian.
3. At the date, time and place of the hearing, evidence
WHEN IS A NEW BOND REQUIRED? shall be received from the petitioner, the next of kin
Under Sec. 2 , Rule 94, a new bond is required and other persons interested, together with their
whenever it is deemed necessary by the court. respective witness. (Sec. 3, Rule 95)
Requisites:
1. After due notice to interested persons. 4. The court may grant or refuse the prayer of the
2. No injury will result therefrom to those petition for authority to sell, as the best interest of the
interested in the estate. ward requires. (Sec. 3, Rule 95)
WHERE IS THE BOND FILED? 5. If the court grants the petition for authority to sell,
In the office of the Clerk of Court ( Sec. 3, Rule 94 ) it shall order the sale or encumbrance and shall
indicate the manner in which the proceeds thereof
IN CASE IT BECOMES LIABLE, WHERE IS IT shall be disposed. (Sec. 4, Rule 95)
PROSECUTED?
It may be prosecuted either in the same proceeding or 6. The authority to sell may include directives that the
by a separate action ( Sec. 3, Rule 94 ) property be sold or disposed of at a public or private
sale, subject to conditions as the court may deem most
When is a guardian & his bondsmen liable? beneficial to the ward. (Sec. 4, Rule 95)
In case a guardian is removed, he and his bondsmen
are liable, for the administration of the ward’s 7. The court may direst the guardian to post
property, from the time of acceptance of appointment additional bond as a condition for granting the
to the time of removal. authority to sell. (Sec. 4, Rule 95)
( Guerrero vs. Teran, 13 Phil. 212 )
8. No order of sale shall continue in force for more
In case of separate action on guardian’s bond, than one year after the grant of the authority, without
should the sureties be made parties? a sale being held. (Sec. 4, Rule 95 ). This one year
Yes, the sureties should be made parties to period does not apply to mortgages & other
bind them on their official bond encumbrances.
( Arroyo vs. Jungsay, 34 Phil. 590 ) 9. The court may direct the proceeds to be invested
and may make such orders for the management,
SELLING & ENCUMBERING OF THE WARD”S investment & disposition of the estate & effects as
PROPERTY circumstances may require.
A guardian may petition the court for leave of ( Sec. 5, Rule 95 )
court to see or encumber the estate of his ward when
the income of the ward’s estate is not sufficient: NOTA BIEN:
1. to maintain the ward and his family The guardian is clothed with the power to sell
2. to maintain and educate the ward when a or dispose of the personal property of his ward.
minor Ordinarily, a petition for the sale nor a court order to
3. when the sale appears to be for the benefit do so, is NOT NECESSARY. The basis of this rule on
of the ward and that the proceeds of the sale sale of personalty is that the personal estate of the
or encumbrance be put at interest or invested ward is necessarily subject to ore unlimited control
in some productive security or in the than realty and may be invested, called in and
improvement or security of other real estate reinvested and changed and otherwise disposed of as
of the ward. the exigencies of the trust in the judgment of the
guardian may seem to require.
PROCEDURE FOR THE SALE & ENCUMBRANCE OF The powers of a general guardian extend not
THE WARD’S PROPERTY: only to the custody of the person of the ward, but also
to the management of the ward’s personal estate and
1. A verified petition shall be filed which shall be set his control thereover is absolute, within the bounds of
for hearing. The petition shall set forth facts showing a discretion guided by an honest judgment of what the
the necessity of the sale or encumbrance and pray that ward’s best interest requires. And in the exercise of
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Can issue of ownership be dealt with in the same 4. At the trial, the guardian or relatives of the ward, or
guardianship proceedings ? any other persons, may contest the
petition.
No, a guardianship court’s sole concern is the
ward’s care & custody & proper administration of his 5. Witness may be called and examined by the parties
properties. Therefore, conflicts regarding ownership or by the court in its own motion.
or title to such property in the hands of a guardian, in
his capacity as such should be litigated in a separate 6. If the ward is found to be no longer incompetent,
proceeding. ( Viloria vs. Admin. Of Vet. Affairs, 101 Phil his competency shall be adjudged & the
762 ) guardianship ceases.
either be express or implied. (SECUYA vs. DE SELMA, adopt, provided, he is in a position to support and
GRN 136021 February 22, 2000] care for his children in keeping with the means of the
family.
Parties to a Trust In addition, the adopter must be at
least 16 years older than the adoptee, unless
a. Trustor - the person who establishes the
the adopter is:
trust. He must have the capacity to convey
1) the biological parent of the adoptee, or 2) the
property.
spouse of the adoptee’s parent. [ sec. 7(a) ]
b. Trustee - one who has the Legal Title and
holds the property in trust for the benefit
May An Alien Adopt?
of the beneficiary. He must have the
An alien may adopt, provided, he possesses
capacity to enter into contracts.
the same qualifications as above stated for Filipino
c. Beneficiary – one who has the Equitable
nationals, his country has diplomatic relations with
Title or Beneficial Title to the property
the Republic of the Philippines and he complies with
held by the trustee for his benefit. He
the residency and certification requirements. [ sec.
must have the capacity to receive
7(b) ]
gratuitously.
* The trustor and the beneficiary may be the
What is the Residency Requirement
same person.
The alien must have been living in the Phils.
Classification of Trust for at least 3 continuous years prior to the filing of
the application for adoption and maintains such
a. Express Trust - created by the intention of the
residence until the adoption decree is entered. [ sec.
trustor or of the parties.
7(b) ]
How created:
1. by an act inter vivos What is the Certification Requirement?
2. by an act mortis causa, as in a will The alien must have been certified by
3. by the admission of the trustee that his/her diplomatic or consular office or any
he merely a trustee to the property of government agency that:
the trust. 1) he/she has the legal capacity to adopt in his/her
b. Implied Trust - comes into being by operation country and,
of law. 2) his/her government allows the adoptee to enter
his/her country as his/her adopted child. [ sec.
7(b) ]
Who may petition?
❖ Parties beneficially interested. May the Residency and Certification
Grounds : Requirements Be Waived?
Yes. These requirements may be waived when
1. essential in the interest of the petitioner the adopter is:
2. insanity
1) a former Filipino citizen who seeks to adopt a
3. incapability of discharging trustee
relative within the 4th degree of consanguinity or
4. unsuitability affinity; or
2) one who seeks to adopt the legitimate child of
RA 8552 his/her Filipino spouse; or
What is Adoption? 3) married to a Filipino citizen and seeks to adopt
Adoption is the process of making a child, jointly with his/her spouse a relative within the
whether related or not to the adopter, possess in 4th degree of consanguinity or affinity of the
general , the rights accorded to a legitimate child. Filipino spouse. [ sec. 7(b) ]
How Shall Husband and Wife Adopt? establish a bonding relationship. During said period,
temporary parental authority shall be vested in the
As a rule, adoption must be done jointly by adopter/s. [ sec. 12 ]
the husband and wife. [ sec. 7 ] When Shall a Decree of Adoption be
Entered?
Is the Rule Absolute? Why? If, after the publication of the order of
It is not absolute. hearing has been complied with and no opposition
There are exceptions as when: has been interposed with to the petition, and after
1) one spouse seeks to adopt the consideration of the case studies, the qualifications of
legitimate son/daughter of the other; the adopter/s, trial custody report and the evidence
or submitted, the court is convinced that the petitioners
2) one spouse seeks to adopt the are qualified to adopt, and that the adoption would
his/her own illegitimate redound to the best interest of the adoptee, a decree
son/daughter, provided that the of adoption shall be entered. [ sec. 13 ]
other spouse has signified his/her
consent thereto; or
3) the spouses are legally separated When Shall the Decree Be Effective? Why?
from each other. [ sec. 7 ]
It shall be effective as of the date the original
When May a Person of Legal Age Be petition was filed. This is to protect the interest of
Adopted? the adoptee
A person of legal age may be adopted in case the petitioner dies before the
if, prior to the adoption, said person has been issuance of the decree of adoption. [ sec. 13 ]
consistently considered and treated by the
adopter as his/her own child. [ sec. 8(d) ] What are the Effects of Adoption?
Where Should the Adoption Case be Filed? 1. All legal ties between the biological parent/s
The case should be filed in the RTC ( Family and the adoptee shall be severed and the
Court ) of the province/city where the petitioner same shall then be vested in the adopter/s,
resides. [ RA 8369 ] except in cases where the biological parent is
the spouse of the adopter. [ sec. 16 ]
2. The adoptee shall be considered the
What is Required Before the Petition for legitimate child of the adopter/s for all
Adoption Be Set For Hearing? intents and purposes.
The petition shall be set for hearing only [ sec. 17 ]
when a licensed social worker of the DSWD, the 3. In legal and intestate succession, the
social service office of the local gov’t unit, or any adopter/s and the adoptee shall have
child-placing or child-caring agency has made a CASE reciprocal rights of succession.
STUDY of the adoptee, his/her biological parent/s as [ sec. 18 ]
well as the adopter/s and has submitted the report
and recommendations on the matter to the court What are the Grounds for the Rescission of an
hearing such petition. Adoption?
The case study of the adoptee shall establish The adoption may be rescinded on any of the
that he/she is legally available for adoption and that following grounds committed by the adopter/s:
the document to support this fact are valid and 1. repeated physical and verbal maltreatment
authentic. despite having undergone counseling;
The case study of the adopter/s shall 2. attempt on the life of the adoptee;
ascertain his/her genuine intentions and that the 3. sexual assault or violence; or
adoption is in the best interest of the child. [ sec. 11] 4. abandonment and failure to comply with
parental obligations. [ sec. 19 ]
What is Required Before The Petition For
Adoption Can Be Finally Granted?
May an Adopter File a Petition for Rescission of
Before it can be finally granted, the adopter/s must Adoption? Why?
have been given by the court a SUPERVISED No. Adoption, being in the best interest of
TRIAL CUSTODY PERIOD for at least 6 months within the child, shall not be subject to rescission by the
which the parties are expected to adjust adopter/s. However, the adopter/s may disinherit
psychologically and emotionally to each other and
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the adoptee for causes provided in Article 919 of the 1. The spouse present
Civil Code. [ sec. 19 ] 2. The heirs instituted in a will, who may present
an authentic copy of the same
What are the Effects of Rescission? 3. The relatives who would succeed by law of
Parental authority of the adoptee’s biological intestacy; and,
parent/s, if known, or the legal custody of the DSWD 4. Those who have over the property of the
shall be restored if the adoptee is a minor or absentee some right subordinated to the
incapacitated. condition of his death.
The court shall order the Civil Registrar to
cancel the amended certificate of birth of the adoptee The following are the requisites:
and restore his/her original birth certificate. 1. Jurisdictional facts
Succession rights shall revert to its status 2. The names, ages and residences of the heirs
prior to adoption, but only as of the date of judgment instituted in the will, copy of which shall be
of judicial rescission. [ sec. 20 ] presented, and of the relatives who would
succeed by the law of intestacy
Who are Guilty of Simulation of Birth? 3. The names and residences of creditors and
Any person who shall cause the fictitious others who may have any adverse interest
registration of the birth of a child under the name/s over the property of the absentee
of a person/s who is not his/her biological parent/s 4. The probable value, location and character of
shall be guilty of simulation of birth. [ sec. 21(b) ] the property belonging to the absentee
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petitioner and other interested parties before the c. All persons who have direct claim or
designated date of hearing. interest which would be affected
thereby.
Who may be appointed in relation to Art.382 and Art.
383 of the Civil Code? 4. WHO MAY FILE THE PETITION
1. Any person interested in an act, decree, order
❖ Preference is given to the spouse present, if
or event concerning the civil status of persons
there is no legal separation.
which has been recorded in the civil register.
❖ If there is no spouse or if the spouse present is
a minor or if the spouse is incompetent the
5. ENTRIES SUBJECT TO CANCELLATION OR
court will appoint any competent person.
CORRECTION
(Key: BALANCED FLAME DC)
Sec. 8 Termination of Administration-The trusteeship
Birth
or administration of the property of the absentee shall
Adoptions
cease upon order of the court in any of the following
Naturalizations
cases:
Civil interdiction
1. When the absentee appears personally or by Election, loss or recovery of citizenship
means of an agent; Death
2. When the death of the absentee is proved and Filiation, judicial determination of
his testate or intestate heirs appears; Legitimations
3. When a third person appears, showing by a Acknowledgement of natural children
proper document that he has acquired the Marriages
absentee’s property by purchase or other title. Emancipation of a minor, voluntary
Declaring Marriages void from the beginning,
RULE 108
CANCELLATION OR CORRECTION OF ENTRIES IN judgments of
THE CIVIL REGISTER
Changes of Name
1. NATURE
Proceedings under this rule maybe summary
• Note: The procedure in Rule 103
or adversarial in nature. If the correction
regarding change of name and Rule 108
sought to be made in the civil registry is
concerning the cancellation or correction
clerical, the procedure to be adopted is
of entries in the civil registry are separate
summary. If the rectification affects the civil
and distinct. The allegations required, the
status, citizenship, or nationality of a party, it
issues involved, and the reliefs that
is deemed substantial and the procedure to be
maybe granted in these proceedings are
followed is adversarial.
different, hence, they may not be
• Requisites of Adversarial
substituted one for the other for purposes
Proceedings:
of expediency. If both reliefs are to be
a. Proper petition is filed where the Civil
sought in the same proceedings, all the
Registrar and all parties interested are
requisites must be complied with.
impleaded.
b. The order of hearing must be published.
c. Notice thereof must be given to the
REPUBLIC ACT 9048
Solicitor General and all parties affected
CORRECTION ERROR LAW
thereby.
(Approved March 22,2001)
d. Opportunity to be heard
e. Full blown trial.
1. GENERAL RULE: No Entry in a Civil Register
shall be changed or corrected without judicial
2. VENUE
authority.
1. The RTC of the province where the
2. EXCEPTIONS:
corresponding civil registry is located.
a. Clerical/Typographical errors
b. Change of first name/nickname
3. PARTIES TO THE PROCEEDING
a. Petitioner;
• “First Name”: refers to a name or a nickname
b. Civil Registrar
given to a person which may consist of one or
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more names in addition to the middle and last 9. PERSON WHO MAY IMPUGN THE DECISION
names. OF THE LOCAL CIVIL REGISTRAR
GRANTING A PETITION
3. WHO MAY FILE The Administrator of the National Statistics
Any person having direct and Office may impugn, by way of objection such
personal interest in the correction of a clerical decision on the following grounds:
or typographical error in an entry and/or a. Error is not clerical/typographical
change of first name/nickname. b. The correction of an entry in the civil
register is substantial or
controversial as it affects the civil
4. VENUE status of a person; or
c. The basis used in changing the first
• The petitioner may file in person a verified name or nickname of a person does
petition with the local civil registry office of not fall under the 3 authorized
the city or municipality where the record grounds enumerated for a change of
being sought to be corrected or changed is first name or surname.
kept.
• If the petitioner has migrated to another place • If the administrator of the NSO fails to
in the country and it is impractical for him to exercise his power to impugn the decision
appear in person before the local registrar within 10 working days after such receipt, the
keeping the records, the petition maybe filed decision shall become final and executory.
in person with the local civil registrar of the
place where the interested party is residing or
domiciled.
• Filipino citizens residing or domiciled in 10. APPEAL
foreign countries may file their petition, in The petitioner may either appeal the decision
person, with the nearest consulate. to the administrator of NSO or file the
appropriate petition with the proper court.
Note: All the petitions maybe availed of only once.
11. PENALTY CLAUSE
5. GROUNDS FOR CHANGE OF NAME Violation of the provisions of this act , shall
a. The petitioner finds the first name or upon conviction be penalized by:
nickname to be ridiculous, tainted with a. Imprisonment of not less than 6 years
dishonor or extremely difficult to write or but not more than 12 yrs; or
pronounce; b. A fine of not less than P10,000. but
b. The new first name or nickname has been not more than P 100,000.; or
habitually and continuously used by the c. Both
petitioner and he has been publicly known by • In addition, if the person is a gov’t employee, he
that first name or nickname in the community. shall suffer the penalties provided under civil
c. Change will avoid confusion. service laws, rules, and regulations.
6. FORM OF PETITION : Affidavit
7. CONTENTS OF PETITION 12. RETROACTIVITY CLAUSE
a. Facts necessary to establish the merits of the This act shall have retroactive effect insofar as it
petition and shall show affirmatively that the does not prejudice or impair vested or acquired
petitioner is competent to testify to the rights in accordance with the Civil Code and other
matters stated. laws.
b. Statement of the particular erroneous
entry/entries which are sought to be
corrected and/or changed sought to be made. DISTINCTIONS:
RULE R.A. 9048 RULE 108
8. PUBLICATION 103
SUBJECT Change -Clerical -Clerical
In case of change of first name or nickname, MATTER of Name Errors Errors
the petition shall be published at least once a -Change of -Correction
week for two consecutive weeks in a first name/ of
newspaper of general circulation. nickname. BALANCED
FLAME DC
INITIATE Petition Affidavit Petition
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D BY
VENUE RTC A. LCR RTC where
where where the the LCR is
petitione record located
r resides being
sought to be
corrected/c
hanged is
kept.
B..LCR
where the
petitioner
resides.
C. Nearest
consular
office(if
petitioner is
abroad)
HEARING Necessar Not Necessary
REQUIRE y necessary;
MENT mere
investigatio
n
DECISION Court LC Court
renders R renders it
it
APPEAL Higher Civil Higher
courts Registrar courts
General(Ad
min. Of
NSO)
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