UP 2009 Remedial Law (Special Proceedings).pdf

REVIEWER IN REMEDIAL LAW

Table of Contents

SPECIAL PROCEEDINGS 142 142 142 143

CHAPTER 1: General Provisions I. Subject matter and applicability of general rules II. Difference between action and special proceeding

144 144

CHAPTER 2: Settlement of Estate of Deceased Persons I. Venue and Process A. Where estate of deceased persons settled B. Where estate settled upon dissolution of marriage C. Process D. Presumption of death II. Summary Settlement of Estate A. Extrajudicial settlement by agreement between heirs B. Summary settlement of small value C. Bond to be filed by distributees D. Liability of distributees and estate E. Period for claim of minor or incapacitated person III. Production of Will. Allowance of Will Necessary A. Allowance necessary. Conclusive as to execution B. Custodian of will to deliver C. Executor to present will and accept or refuse trust D. Custodian and executor subject to fine for neglect E. Person retaining will may be committed IV. Allowance or Disallowance of Will A. Who may petition for the allowance of will B. Contents of the petition C. Court to appoint time for proving will. Notice thereof to be published D. Heirs, devisees, legatees, and executors to be notified by mail or personally E. Proof at hearing. What sufficient in absence of contest F. Proof of lost or destroyed will. Certificate thereupon G. Proof when witnesses do not reside in province H. Proof when witnesses dead or insane or do not reside in the Philippines I. Grounds for disallowance of will J. Contestant to file grounds for contest K. Subscribing witnesses produced or accounted for where will contested

145

144

145 145 146 146 146 146 146 147 148 148 149 149 149 150 150 150 150 150 150 151 151 151 151 151 151 152 152 152 152

L.

Proof where testator petitions for allowance of holographic will M. Certificate of allowance attached to prove will. To be recorded in the Office of Register of Deeds V. Rule 77 Allowance of Will Proved Outside of Philippines and Administration of Estate Thereunder A. Will proved outside the Philippines B. Requisites for allowance: C. When will allowed, and effect thereof D. Estate, how administered VI. Letters Testamentary and of Administration, When and to Whom Issued A. Who cannot serve as executors or administrators: B. The executor of an executor shall not, as such, administer the estate of the first testator. C. Married woman may serve D. Letters testamentary issued when will allowed E. Where some co-executors disqualified others may act F. When and to whom letters of administration granted VII. Rule 79 Opposing Issuance of Letters Testamentary. Petition and Contest For Letters Of Administration A. Opposition to issuance of letters testamentary B. Contents of petition for letters of administration C. Court to set time for hearing. Notice thereof D. Opposition to petition for administration E. Hearing and order for letters to issue F. When letters of administration granted to any applicant VIII. Rule 80 Special Administrator A. Appointment of special administrator B. Powers and duties of special administrator C. When special administrator cease; duties IX. Rule 81 Bond of Executors and Administrators A. Bond to be given issuance of letters. Amount. Conditions. B. Bond of executor where directed in will. When further bond required C. Bonds of joint executors and administrators D. Bond for special administrator

152 152 153

153 153 153 153 153 153 153 153 154 154 154 154

154 155 155 155 155 155 155 155 156 156 156 156 156 157 157

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SPECIAL PROCEEDINGS

PRELIMINARY MATTERS A. Special Proceedings B. Applicable Rules C. Venues and Jurisdictions of Special Proceedings


Table of Contents

157 157 157

158 158 158 158 158 158 158 158 158 159 159 159 159 159 159 159 159 160 160

160 161 161 161 161 161 162 162 162 162 162

G. Mortgage debt due from estate H. Claim of executor or administrator against an estate I. How to file a claim. Contents thereof. Notice to executor or administrator J. Answer to the claim by executor or administrator. Offsets K. Disposition of admitted claim L. Trial of contested claim M. Judgment appealable N. Costs XV. Actions By and Against Executors and Administrators A. Actions which may and which may not be brought against executor or administrator B. executor or administrator may bring or defend actions which survive C. Heir may not sue until share assigned D. Executor or administrator may compound with debtor E. Mortgage due estate may be foreclosed F. Proceedings when property concealed, embezzled or fraudulently conveyed G. Powers entrusted with estate compelled to render account H. Embezzlement before letters issued I. Property fraudulently conveyed by deceased may be recovered. When executor or administrator must bring action J. When creditor may bring action. Lien for costs XVI. Payment of the Debts of the Estate A. Debts paid in full if estate sufficient B. Part of estate from which debt paid when provision made by will C. Personally first chargeable for debts, then realty D. Estate to be retained to meet contingent claims E. Contingent claim; when allowed F. Court to fix contributive shares where devisees, legates, or heirs have been in possession G. Order of payment if estate is insolvent H. Dividends to be paid in proportion to claims I. Insolvent non-resident J. Insolvent resident; foreign creditors K. Order of payment of debts L. Appeal taken from a decision of the court concerning the claim M. Time to time further orders of distribution N. Creditors to be paid in accordance with terms of order

163 163 163 164 164 164 164 164 164 165 165 165 166 166 166 166 166 167 167

167 167 168 168 168 168 168 169 169 169 169 169 169 169 169 170

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SPECIAL PROCEEDINGS

X. Revocation of Administration, Death, Resignation, and Removal of Executors or Administrators A. Administration revoked if will discover. Proceedings thereupon B. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation or removal C. Acts before revocation, resignation, or removal to be valid D. Powers of new executor or administrator XI. Inventory and Appraisal. Provision for Support of Family A. Inventory and appraisal to be returned within 3 months B. Articles not to be inventoried: C. Allowance to widow and family D. Provision for support XII.General Powers and Duties of Executors and Administrators A. Executor or administrator to have access to partnership books and property. How right enforced B. Keep buildings in tenantable repair C. Right to possession and management of the real and personal properties XIII. Accountability and Compensation of Executors and Administrators A. Executor or administrator chargeable with all estate and income B. Not to profit by increase or lose by decrease in value C. When not accountable D. Accountable for income from realty used by him E. Accountable if he neglects or delays to raise or pay money F. When allowed money paid as costs G. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced. H. When executor or administrator to render account I. Examination on oath by court J. Account to be settled on notice K. Surety on bond may be party to accounting XIV. Claims Against Estate A. Notice to creditors to be issued by court B. Time within which claims shall be filed C. Publication of notice to creditors D. Filing copy of printed notice E. Claims which must be filed under the notice. If not filed, barred; exceptions F. Solidary obligation of decedent


Table of Contents

170

CHAPTER 3: Escheats I. When Allowed II. Duty of court; when petition sufficient III. Court shall adjudge that the estate shall escheat

178 178 179

170 170 170 170 171 171 171

171 171 172 173 173 173 174 174 174 174 175 175 175

175 176 176 176 177 177 177

179

IV. Period to appeal and claim estate V. Other actions for escheat

the

179 179

CHAPTER 4: Special Rules Implementing the Family Courts I. Guardianship A. Guardianship In General B. Guardianship of Minors 1. Parents as Legal Guardians (Art. 225, FC) 2. Rule on Guardianship of Minors (A.M. No. 03-02-05SC) a. Scope and Applicability b. Petition for Appointment of Guardian c. The Guardian d. Selling and Encumbering the Property of the Ward e. Removal, Resignation, and Termination of Guardianship C. Guardianship of Incompetents (Rules 92-98) a. Scope and Applicability b. Petition for Appointment of Guardian c. The Guardian d. Selling and Encumbering the Property of the Ward (Rule 95) e. Termination of Guardianship (Rule 97) II. Adoption A. Domestic Adoption a. Scope and Applicability b. The Adopter and the Adoptee c. Petition for Adoption d. Rescission of Adoption of the Adoptee B. Inter-Country Adoption (RA 8043) 1. Scope and Applicability 2. Inter-country Adoption as the Last Resort 3. Petition for Adoption III. Rules on Custody of Children (Rule 99, Secs. 6 and 7) A. Proceedings as to the child whose parents are separated (Rule 99, Sec. 6) B. Proceedings as to vagrant or abused child (Rule 99, Sec. 7) IV. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-0404-SC) V. Commitment of Children (A.M. No. 02-1-19-SC) A. Involuntary Commitment of a Dependent, Abandoned, or Neglected Child B. Voluntary Commitment of a Dependent, Abandoned, or Neglected Child C. Commitment of a Disabled Child

180 180 180 180 180 181 181 181 182 184 184 185 185 185 186 188 189 190 190 190 190 192 196 197 197 197 197 198 198 199 199 199

203 204 206 207

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SPECIAL PROCEEDINGS

O. Court shall allow executor or administrator a time for disposing the estate any paying debts and legacies P. Ground for extension XVII. Sales, Mortgages, and Other Encumbrances of Property of Decedent A. Sale of personal estate; requirements B. Sale, mortgage, or encumbrance (s/m/e) of real property C. Requisites for disallowing s/m/e real or personal D. Sale of whole or part of personal or real estate E. Personal/real s/m/e is NOT necessary to pay debts, expenses of administration or legacies in the PHILIPPINES F. Court authorize s/m/e of realty acquired on execution or foreclosure G. Regulations for authorizing s/m/e: H. When court may authorize conveyance of realty which deceased contracted to convey I. Where the deceased in his lifetime held real property in trust for another person XVIII. Distribution and Partition of the estate A. When order for distribution of residue made B. Questions as to advancement made, or alleged to have been made, by the deceased to any heir C. Expenses of partition D. Recording of the order of partition of estate E. Effect of Final Decree of Distribution XIX. Trustees A. Where trustee appointed B. Appointment and powers of trustee under will. Executor of former trustee need not administer trust C. New Trustee D. Trustee appointed abroad E. Trustee must file bond before performing duties F. Conditions of the Bond G. Appraisal and compensation of trustee H. Removal or resignation of trustee I. If sale or encumbrance of trust estate necessary or expedient


Table of Contents

209 209

CHAPTER 7: The Writs I. Writ of Habeas Corpus A. To What Habeas Corpus Extends B. Who May Grant the Writ C. Requisites of Application D. When Writ not Allowed or Discharge Authorized E. When Writ Must be Granted and Issued F. Aspects of the Return G. When person Lawfully Imprisoned Recommitted, and When let to Bail H. When Prisoner Discharged if no Appeal I. Penalties J. Record of Writ, Fees and Costs II. Writ of Amparo A. General principles B. Aspects of Filing C. Issuance and Service of the Writ D. Aspects of the Return E. Hearing on the Writ F. Allowable Reliefs G. Penalties H. Burden of Proof I. Judgment and Appeal J. Effect of Other Actions K. Other Matters III. Writ of Habeas Data A. General Principles B. Aspects of Filing C. Issuance and Service D. Aspects of Return E. Hearing on the Writ

220 220 220 222 222 222

209 209 209 210 210 210 210 211

F. Penalties G. Judgment and Appeal H. Return of Judgment, thereon I. Effects of Other Actions J. Other Matters IV. Writ Matrix

Hearing

232 232 232 232 232 233

CHAPTER 8: Corporate Rehabilitation I. Petition for Rehabilitation II. Stay Order III. Hearing IV. Corporation plan of rehabilitation V. Final Orders and Appeals Therefom

240 240 241 242 242 243 SPECIAL PROCEEDINGS

CHAPTER 5: Other Special Proceedings I. Hospitalization of Insane Persons (Rule 101) A. Petition for Commitment B. Petition for Discharge of Insane II. Declaration of Absence (Rule 107) and of Presumptive Death (Arts. 390-392, CC) A. Absence B. Presumption of Death III. Change of Name and Cancellation or Correction of Entries in the Civil Registry A. Change of Name (Rule 103) B. Change of First name or Nickname and Correction of Clerical or Typographical Errors in Entries in the Civil Registry (RA 9048) 1. Scope and Application 2. RA 9048 and Rule 103 Compared 3. The Petition C. Cancellation or Correction of Entries in the Civil Registry (Rule 108) IV. Voluntary Dissolution of Corporations V. Naturalization CHAPTER 6: Appeals in Special Proceedings

211 211 212 215 215 215 219

223 223 224 224 225 225 225 225 226 227 227 227 228 229 229 229 230 230 230 230 230 231 231 231

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Preliminary Matters

Special Proceedings FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Theodore O. Te FACULTY EDITOR

LECTURES

Bryan San Juan

Edel Cruz

SUBJECT EDITOR

HEAD

SPECIAL PROCEEDINGS

--------

ACADEMICS COMMITTEE Samantha Poblacion

REMEDIAL LAW

Kae Guerrero

DIRECTOR FOR ACADEMICS EDITOR-IN-CHIEF

Choi Ocampo LEAD WRITER

PRINTING AND DISTRIBUTION

Rania Joya

Robin Concepcion Shamby Yambot

LOGO, COVER AND TEMPLATE DESIGN

DEPUTY DIRECTOR FOR ACADEMICS LAYOUT HEAD

SPECIAL PROCEEDINGS

WRITERS

-------Leo Zulueta

Preliminary Matters A. SPECIAL PROCEEDINGS B. APPLICABLE RULES C. VENUES AND JURISDICTIONS SPECIAL PROCEEDINGS

FOR

A. SPECIAL PROCEEDINGS – 

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

B. APPLICABLE RULES 









If special rules are provided, they shall apply. But in the absence of such special provisions, the rules applicable in special proceedings shall be applied (Rule 72, Sec. 2). There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data), as special proceedings are in general cases wherein one seeks to establish the status/right of a party or a particular fact. The State has an overriding interest in each special proceeding, and the matter is not a controversy between private parties purely (Bautista). The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability, is not strictly applicable to orders in special proceedings, Rule 109 specifies the orders from which appeals may be taken (Regalado). Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings (Matute v. CA (1969)).

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Preliminary Matters

C. VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS (Asked in the 1997 bar examinations) Venue Residence of the decedent If non-resident, place where he had an estate

Escheat

Person dies intestate leaving no heir – Residence of the decedent or if non-resident, place where he had estate Reversion – where land lies in whole or in part Unclaimed Balances Act – where deposits are located Where minor resides Where incompetent resides Where will was allowed or Where the property or portion thereof affected by the trust is situated Domestic – where adopter resides ICAB – where adoptee resides if filed with the family court Where adoptee resides If filed with RTC, where detainee is detained

Appointment of Guardians Appointment of Trustees Adoption

Rescission of Adoption Habeas Corpus

Habeas Data

Amparo Change of Name

Appoinment of Representative of Absentee/ Declaration of Absence Cancellation / Correction of Entries in Civil Registries Petition for declaration of nullity, annulment, legal separation

For the custody of minors, where petitioner resides or where minor may be found Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected, or stored, at the option of the petitioner Where the threat, act or omission was committed or any of its elements occurred Judicial - where petitioner resides Administrative:  Local civil registry where the record sought to be changed is kept  Local civil registry of the place of residence of the interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept)  Philippine consulates only for nonresident citizen Where Absentee resides before his disappearance Judicial - Where corresponding civil registry is located Administrative - Same as change of name Where petitioner or respondent has been residing for at least 6 months prior to the date of filing If non-resident petitioner, where he may be found at the election of the petitioner

Jurisdiction MTC if gross value of the estate does not exceed P 300,000, or does not exceed P400,000 in Metro Manila Else, RTC RTC RTC RTC

SPECIAL PROCEEDINGS

Special Proceeding Settlement of the Estate of a Deceased Person

Family Court RTC RTC Family Court Family Court or ICAB Family Court SC, CA, RTC, MTC in the province or city in case there is no RTC judge Sandiganbayan only in aid of its appellate jurisdiction Family Court, CA, SC RTC generally If concerning public data files or government offices, SC, CA or Sandigabayan RTC, Sandiganbayan, CA, SC or any justice thereof RTC Local Civil Registry/ Philippine consulate

RTC

RTC Local Civil Registry/ Philippine consulate Family Court

Page 143 of 370


Chapter 1: General Provisions I.

SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES II. DIFFERENCE BETWEEN ACTION AND SPECIAL PROCEEDING

I. Subject Matter and Applicability of General Rules 

II. Difference Between Action and Special Proceeding 



Action - formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law (Herrera). Special proceeding - application or proceeding to establish the status or right of a party, or particular fact. No formal pleadings are required, unless the statute expressly so provides (Herrera).

Ordinary Action To protect/enforce a right or prevent/ redress a wrong Involves 2 or more parties Governed by ordinary rules supplemented by special rules Initiated by pleading, and parties respond through an answer

Special Proceeding To establish a right/status/fact May involve only 1 party Governed by special rules, supplemented by ordinary rules Initiated by petition, parties respond through an opposition

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SPECIAL PROCEEDINGS



Rules of special proceedings are provided for in the following cases: 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 minor natural children; 12. Constitution of family home; 13. Declaration of absence and death; 14. Cancellation of correction of entries in the civil registry. In the absence of special provisions, the rules provided for in ordinary ctions shall be, as far as practicable, applicable in special proceedings.

Chapter 1: General Provisions


Chapter 2: Settlement of Estate of Deceased Persons

I. VENUE and PROCESS A. WHERE ESTATE OF DECEASED PERSONS SETTLED B. WHERE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE C. PROCESS D. PRESUMPTION OF DEATH

A. Where Estate of Deceased Persons Settled 

If decedent is: Inhabitant of the Philippines at time of death (citizen/alien)  RTC of the province in which he resides Inhabitant of foreign country  RTC of any province in which he had estate

 



Jurisdiction: court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except: In an appeal from that court, in the original case, OR When the want of jurisdiction appears on the record. Conversion of an intestate into testate proceeding A matter of form and lies within the sound discretion of the court.

1. Jurisdiction of MTCs  When the value of the estate does not exceed P300,000 or P400,000 in Metro Manila. 2. Rule 73 relates to venue and not to jurisdiction  The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is only constitutive of venue. 3. Meaning of term “resides”  Resides - in the section is viewed in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence of place of abode. 4. Probate court is of limited jurisdiction  General rule: When questions arise as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administration proceedings. It must be settled in a separate action.  For the purpose of determining whether a certain property should or should not be included in the inventory of the estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to final decision.

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SPECIAL PROCEEDINGS

I. VENUE AND PROCESS II. SUMMARY SETTLEMENT OF ESTATE III. PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY IV. ALLOWANCE OR DISALLOWANCE OF WILL V. RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER VI. LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED VII. RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION VIII. RULE 80 SPECIAL ADMINISTRATOR IX. RULE 81 BOND OF EXECUTORS AND ADMINISTRATORS X. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS OR ADMINISTRATORS XI. INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY XII.GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS XIII. ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS XIV. CLAIMS AGAINST ESTATE XV. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS XVI. PAYMENT OF THE DEBTS OF THE ESTATE XVII. SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT XVIII. DISTRIBUTION AND PARTITION OF THE ESTATE XIX. TRUSTEES




Exception: Questions to title to any property apparently still belonging to the estate of the deceased may be passed upon in the probate court, with consent of all the parties, without prejudice to third persons (Trinidad v. CA). 5. Nature of proceedings: In rem. 

B. Where Estate Settled Dissolution of Marriage

upon

C. Process 

RTC may issue: a. Warrants and process necessary: i. To compel attendance of witnesses ii. To carry into effect their orders and judgments b. All other powers granted by law c. Warrant for the apprehension and imprisonment if a person does not perform an order or judgment rendered by the court until he performs or is released.

D. Presumption of Death  

 

Presumption of death - if absent or unheard of for the periods fixed in CC If proven to be alive: a. He shall be entitled to the balance of estate. b. Recovered by motion in the same proceeding. For purposes of settlement of his estate only No independent action for declaration of presumption of death.

A. B. C. D. E.

SETTLEMENT

OF

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS SUMMARY SETTLEMENT OF SMALL VALUE BOND TO BE FILED BY DISTRIBUTEES LIABILITY OF DISTRIBUTEES AND ESTATE PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON

A. Extrajudicial Settlement Agreement between Heirs

by

(Asked in the 2005 Bar Examinations) 1. Procedure: a. Death of the decedent b. Division of estate in public instrument or affidavit of adjudication c. The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds d. Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation e. Filing of bond equivalent to the value of personal property 2. Requisites: a. No will b. No debts o However, it is enough to meet the requirement of no debts if the heirs have already paid such at the time of partition c. Heirs are all of age or the minors are represented by their judicial or legal representatives 3. If there is no disagreement between the heirs –  The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds 4. If there is disagreement –  They may divide the estate in an ordinary action of partition. 5. If only 1 heir –  He may adjudicate to himself the entire estate by means of affidavit filed in the office of register of deeds 6. Requirement common to all instances –  File a bond equal to the value of the personal property involved as certified to under oath by the parties,

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SPECIAL PROCEEDINGS

a. If one spouse died: the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. b. If both spouses have died: the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

II. SUMMARY ESTATE





conditioned upon the payment of any just claim that may be filed It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent.

7. Publication –  Fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation 3 times a week, once each week; the

9. Judicial Administration  General Rule: when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec 6. of Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein.  Exception: Summary settlement of estate. 10. Different modes of settlement of estate of deceased: a. Extrajudicial settlement of estate b. Partition c. Summary settlement of estates of small value d. Probate of will e. Petition for letters of administration in intestacy. 11. Judicial administration not favored  When a person dies without leaving pending obligations to be paid, his heirs, whether of age of not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the court.  In such case the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings.  There must be good reason to warrant judicial administration. Among those NOT good reasons: Dispute among heirs; Multiplicity of suits; To have legal capacity to appear.

13. Validity of Compromise agreement  VALID, binding upon the parties as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement.

B. Summary Value 

Settlement

of

Small

This shall be applicable to testate or intestate proceedings

1. Procedure: a. Death of the decedent b. An application for summary settlement with an allegation that the gross value of the estate does not exceed P10K c. Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct) d. Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice e. Court to proceed summarily, without appointing an executor/administrator (e/a), and to make orders as may be necessary f. Grant allowance of the will, if any g. Determine persons entitled to estate h. Pay debts of estate which are due i. Filling of bond fixed by the court j. Partition of estate. 2. Requisites: a. Gross value of estate: x < P10,000 (now x < P300,000 outside Metro Manila and x < 400,000 in Metro Manila) b. Fact is made to appear to the RTC c. Through petition of an interested person d. Upon hearing i. Held not less than 1 month nor more than 3 months ii. Counted from the date of the last publication of a notice e. Notice i. Which shall be published once a week for 3 consecutive weeks

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SPECIAL PROCEEDINGS

8. Not binding on any person who: a. Has not participated in extrajudicial settlement. b. Had no notice thereof.

12. Validity of oral partition  VALID, because there is no law that requires partition among heirs to be in writing to be valid





3. Court will:  Determine who are the persons legally entitled to participate in the estate,  Apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due  Afterwards, the heirs shall be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively.  There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court will make provisions for such in its resolution of the proceedings 4. Recording:  Orders and judgments  clerk of court  Order of partition or award of real estate  registrar’s office

C. Bond to Be Filed by Distributees 1. Optional bond by distributees  Before allowing partition  For those movables/ personal properties forming the estate  Conditioned for the payment of any just claim which may be filed.

D. Liability Estate  

of

Distributees

and

If it shall appear within 2 years after the settlement and distribution (summary settlement): An heir or other person Has been unduly deprived of his lawful participation in the estate o He shall have a right to compel the settlement of the estate in the courts for the purpose of

 



1.    

satisfying such lawful participation There are debts outstanding which have not been paid. An heir or other person has been unduly deprived of his lawful participation payable in money The court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation, and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and real estate shall remain charged with a liability to creditor, heirs or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. Duty of the court: Hear the case Settle the amount Order how much and in what manner each distribute shall contribute in the payment thereof If circumstances require, issue execution against the bond, or the real estate belonging to the deceased, or both

2. Bond and real estate remain charged  with a liability to creditors, heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made 3. Rule not applicable: a. To persons who have participated or taken part or had notice of the extrajudicial partition b. When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) This is only a bar against the parties who had taken part in the extrajudicial proceedings, but

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SPECIAL PROCEEDINGS

ii. In a newspaper of general circulation in the province iii. Note that it is not required that publication be for a complete 21 days. What is required is that it be published for once a week for 3 consecutive weeks. f. Notice to interested persons as the court may direct. Upon fulfillment of the requisites, the court may proceed summarily  Without the appointment of an e/a  Without delay,  To grant, if proper, allowance of the will, if any there be,


not against third persons not parties thereto

5. Exception:  Prescriptive period for the filling of the action for reconveyance based on implied trust should be reckoned from the actual discovery of the fraud where the registration where there was bad faith in securing the certificates of titles and, is therefore a holder of the said certificate in bad faith. The Torrens title does not furnish a shield for fraud. 6. Rescission  is the proper remedy for preterition.

E. Period for Claim of Minor or Incapacitated Person 



If on the date of the expiration of the period of 2 years prescribed in the preceding section the person authorized to file a claim is: a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within 1 year after such disability is removed.

III.PRODUCTION ALLOWANCE NECESSARY

OF OF

WILL. WILL

(Asked in the 2002 Bar Examinations) A. B. C. D. E.

ALLOWANCE NECESSARY. CONCLUSIVE AS TO EXECUTION CUSTODIAN OF WILL TO DELIVER EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST CUSTODIAN AND EXECUTOR SUBJECT TO FINE FOR NEGLECT PERSON RETAINING WILL MAY BE COMMITTED

A. Allowance Necessary. Conclusive as to Execution   

No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. Probate of will is mandatory.

1. Procedure: a. Death of the decedent; b. Petition for probate of the will, if any; c. Court order fixing the time and place for probate; d. The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. Notice shall also be given to the designated/known heirs, legatees and devisees, and the executor if the one petitioning for allowance of the will is not the testator; e. Issuance of letters testamentary/ administration; f. Filling of claims; g. Payment of claims; sale/mortgage/ encumbrance of estate properties; h. Distribution of remainder, if any (but can be made before payment if bond is filled by the heirs). 2. Probate does not look into intrinsic validity  Probate is merely the determination of whether or not the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law  Exception: Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. It may Page 149 of 370

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4. Prescriptive period  Action to annul a deed of extrajudicial settlement upon the ground of fraud may be filed within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents respectively).  However in Amerol v. Bagumbaran (154 SCRA 396), the Court applied the New Civil Code. Under Article 1144 (NCC), the following actions must be brought within 10 years from the time the right of action accrues: (1) upon a written contract; (2) upon an obligation created by law; (3) upon a judgment.  Since implied or constructive trusts are obligations created by law, then the prescriptive period to enforce the same prescribes in 10 years. Thus, an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise.



 

pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration (Nepomuceno v. CA). Example: on the face of the will the petitioner appears to be preterited But remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings) Decree of probate is conclusive as to its due execution Suit for forgery of a will, which has been duly probated and such order becoming final, bars such suit because the will is conclusively deemed as duly executed.

B. Custodian of Will to Deliver 1. Custodian of will  Within 20 days after knowledge of death.  Deliver the will to the court or the executor named in the will.  Failure to attach original of will to petition not critical where will itself was adduced in evidence. It is not necessary to attach original will to petition for probate.

C. Executor to Present Accept or Refuse Trust 

Will

and

The Executor named in will: Within 20 days of o Knowledge of death o Or knowledge that he is named as executor Present such will to the court o Unless the will is already with the court Signify in writing WON he accept the trust or refuse it

Fine for negligence of duties (S2 and S3) without excuse  x < P1,000

E. Person Retaining Will Committed 

(Asked in the 2003, 2005, and 2006 Bar Examinations) A. B. C. D. E. F. G. H. I. J. K. L. M.

May Be

Imprisonment for custodian - when he neglects to deliver when ordered to do so

WHO MAY PETITION FOR THE ALLOWANCE OF WILL CONTENTS OF THE PETITION COURT TO APPOINT TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST PROOF OF LOST OR DESTROYED WILL. CERTIFICATE THEREUPON PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES GROUNDS FOR DISALLOWANCE OF WILL CONTESTANT TO FILE GROUNDS FOR CONTEST SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED PROOF WHERE TESTATOR PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC WILL CERTIFICATE OF ALLOWANCE ATTACHED TO PROVE WILL. TO BE RECORDED IN THE OFFICE OF REGISTER OF DEEDS

A. Who May Petition Allowance Of Will 

D. Custodian and Executor Subject to Fine for Neglect 

IV. ALLOWANCE OR DISALLOWANCE OF WILL

for

the

Petitioner for the allowance of the will a. Executor b. Devisee c. legatee d. other person interested in the estate e. testator himself, during his lifetime

1. Meaning of interest in estate  In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor. 2. Jurisdiction, how acquired: Attaching a mere copy of will; or Delivery of will, even if no petition is filed; or Filing of the original petition and compliance with Sec 3-4 Rule 76.

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B. Contents of the Petition a. Jurisdictional facts b. Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent c. Probable value and character of the property of the estate d. Name of the person for whom letters are prayed e. If the will has not been delivered to the court, the name of the person having custody of it.

2. Jurisdictional facts:  Death of the decedent  Residence at the time of death in the province where the probate court is sitting  Or if he is an inhabitant of a foreign country, his leaving his estate in such province

C. Court to Appoint Time for Proving Will. Notice Thereof to Be Published 1. Duty of court having jurisdiction  Fix a time and place for proving the will  Cause notice of such time and place Which notice to be published 3 weeks successively previous to the time appointed in newspaper of general circulation in the province o No publication needed - petition for probate has been filed by the testator himself 2. Notice requirement  The requirement of law for allowance of will was not satisfied by mere publication of notice of hearing. Notice of hearing to the designated heirs, legatees and devisees is required.

D. Heirs, Devisees, Legatees, and Executors to Be Notified by Mail or Personally 

It is the duty of the court to cause copies of the notice to be addressed to the:  Designated or other known heirs, legatees and devisees of the testator resident in the Philippines

 

Notice to be deposited in the post office postage prepaid  At least 20 days before hearing  If such residence is known  Executor, if he be not the petitioner  Co-executor not petitioning  If residence known Personal service - equal to mailing, provided done 10 days before hearing. Testator as petitioner - notice shall be sent only to his compulsory heirs.

E. Proof at Hearing. What Sufficient in Absence of Contest 



During hearing: Before introduction of will o Compliance with notice requirement must be shown before introduction of will o Testimony taken under oath and reduced to writing. No contest - Court will allow: o On the testimony of 1 witness o In absence of such, expert testimony may be resorted to.

F. Proof of Lost or Destroyed Will. Certificate Thereupon 1. Proof of lost or destroyed will (Asked in the 1999 Bar Examinations)2. Establish the  Execution and validity of the will  Have been existence the time of death or shown to be fraudulently or accidently destroyed in the lifetime of testator without his knowledge  Provisions are clearly and distinctly proved by a least 2 credible witnesses  When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded

G. Proof When Witnesses Reside in Province

Do Not

1. Depositions, when made:  None of the subscribing witnesses resides in the province  But the deposition of one or more of them can be taken elsewhere  Court may direct deposition to be taken and authorize: Photocopy of the will made and presented to the witness on his examination Page 151 of 370

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1. Defect in petition –  will not void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.







H. Proof When Witnesses Dead or Insane or Do Not Reside in the Philippines 1. Subscribing witnesses dead, insane or outside the Philippines:  Court may admit the testimony of other witnesses to prove the sanity of testator, due execution of the will, proof of handwriting of testator and of subscribing witnesses

1. If not executed and attested as required by law; 2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; 3. If executed under duress, or the influence of fear, or threats; 4. If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; 5. If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto  The grounds for disallowance of will are exclusive.  Separate wills may be probated jointly.

J. Contestant to File Grounds for Contest 1. Duty of contestant:  State in writing the grounds for opposition  Serve a copy thereof on the petitioner and other parties interested in the estate

K. Subscribing Witnesses Produced or Accounted for Where Will Contested 1. With contest  Witnesses present and not insane All the subscribing witnesses and the notary must be produced and examined Death, absence, or insanity of any of them must be satisfactorily shown to the court

2. Holographic will –  Allowed if 3 witnesses who know the handwriting of the testator testify to such; expert testimony may also be resorted to, nut both still needs be to the satisfaction of the courts.

L. Proof Where Testator Petitions for Allowance of Holographic Will 

Petition by testator holographic will

himself

of

1. If there are no contests in holographic wills –  The fact that the affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof 2. If with contest –  the burden of disproving the genuineness and due execution thereof shall be on the contestant

M. Certificate of Allowance Attached to Prove Will. To Be Recorded in the Office of Register of Deeds 1. When will allowed –  Court will issue certificate of allowance  Signed by judge  Attested by the seal of the court  Attached to the will  Will and certificate filed and recorded by the clerk  If real estate is involved, both will and certificate shall be recorder in the register of deeds in the province where the real estate is

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I. Grounds for Disallowance of Will



All or some of such witnesses present in the Philippines but outside the province - deposition must be taken. Any or all of them testify against due execution or do not remember having attested to it, or are otherwise of doubtful credibility - allowed, provided court is satisfied from the testimony of other witnesses and from all evidence presented that the will was executed and attested in accordance with law



V. ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER A. WILL PROVED OUTSIDE THE PHILIPPINES B. REQUISITES FOR ALLOWANCE: C. WHEN WILL ALLOWED, AND EFFECT THEREOF D. ESTATE, HOW ADMINISTERED

A. Will Proved Philippines

The

Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

B. Requisites for Allowance 1. Copy of the will 2. Order or decree of the allowance in foreign country 3. Filed with a petition for allowance in the Philippines by executor or other person interested 4. Court shall fix a time and place for the hearing 5. Cause notice thereof to be given as in case of an original will presented for allowance. C. When Will Thereof

Allowed,

and

Effect

1. Such will allowed:  Certificate of allowance: Signed by judge Attested by the seal of the court  Attached to the copy of the will  Filed and recorded by the clerk  The will shall have the same effect as originally proven and allowed by such court

D. Estate, How Administered 

 

Court shall grant letters testamentary or letters of administration Which shall extend to all the estate of the testator in the Philippines Such estate shall be disposed of according to such will (after payment of debts and expenses of administration) The residue shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

2. Need for ancillary administration  When a person dies owning property in the country of his domicile as well as in foreign country, administration shall be had in both countries.  That which is granted in the jurisdiction of the decedent’s domicile is termed the principal administration, while any other administration is termed ancillary administration.

VI. LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED (Asked in the 1998, 2002, and 2005 Bar Examinations) A. B. C. D. E. F.

WHO CANNOT SERVE AS EXECUTORS OR ADMINISTRATORS THE EXECUTOR OF AN EXECUTOR SHALL NOT, AS SUCH, ADMINISTER THE ESTATE OF THE FIRST TESTATOR. MARRIED WOMAN MAY SERVE LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED WHERE SOME CO-EXECUTORS DISQUALIFIED OTHERS MAY ACT WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED

A. Who Cannot Serve as E/A: 1. Minor; 2. Not a resident of the Philippines; and 3. In the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

B. The executor of an executor shall not, as such, administer the estate of the first testator. C. Married Woman May Serve 

A married woman may serve as e/a, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

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

Outside

1. Territorial limits of administration  Administration extends only to the assets of the decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over property in another state or country.


D. Letters Testamentary When Will Allowed


Issued

1. Letters testamentary, when issued:  Will has been proved and allowed  The court shall issue letters testamentary thereon to the person named as executor therein,  if he is competent, accepts the trust, and gives bond as required by these rules





When all of the executors named cannot act because of a. incompetency, b. refusal to accept the trust, or c. failure to give a bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will

F. When and to Whom Letters of Administration Granted 1. Requisites:  No executor named; or  Executor or executors are incompetent, refuse the trust, or fail to give bond; or  Or person dies intestate. 2. Administration shall be granted to: a. Surviving spouse or next of kin, or both, or to such person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve. b. If those in (a) be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve. c. If no (b), it may be granted to such other person as the court may select. 3. Reason for order of preference  Those who would reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of

4. 30-day period may be waived  Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative, “may be granted to one or more of the principal creditors.”  Co-administrators may be appointed.  Court may reject order of preference when circumstances warrant.

VII. OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION A. B. C. D. E. F.

OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY CONTENTS OF PETITION FOR LETTERS OF ADMINISTRATION COURT TO SET TIME FOR HEARING. NOTICE THEREOF OPPOSITION TO PETITION FOR ADMINISTRATION HEARING AND ORDER FOR LETTERS TO ISSUE WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT

A. Opposition to Issuance of Letters Testamentary     

Any person interested in will; State in writing the grounds; Then the court shall hear. A petition may, at the time, be filed for letters of administration with the will annexed. Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings.

1. But issue of lack of interest may be barred by estoppel under the Omibus Motion rule.  Example: When respondent did not file a Motion to Dismiss on the ground of lack of capacity to sue, but instead filed an Opposition.

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E. Where Some Co-Executors Disqualified, Others May Act



waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. Mere failure to apply for letters of administration does not remove preference.



B. Contents of Petition for Letters of Administration 1. Jurisdictional facts; 2. Names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent; 3. Probable value and character of the property of the estate; 4. Name of the person for whom letters of administration are prayed.

F. When Letters of Administration Granted to Any Applicant 

But no defect in the petition shall render void the issuance of letters of administration.

C. Court to Set Time for Hearing. Notice Thereof 1. Duty of court a. To fix a time and place for hearing such petition b. Cause notice thereof to be given to known heirs and creditors and to any other persons believed to have an interest 2. Notice requirement is jurisdictional  The probate court must cause notice through publication of the petition after it receives the same Where no notice has been given to persons believed to have an interest in the estate, the proceedings for the settlement of the estate is void and should be annulled.

D. Opposition to Administration

Petition

for

1. Contest to such petition  Any interested person may file a written opposition to contest the petition 2. Grounds: a. Incompetency of the person for whom letters are prayed, or b. contestant’s own right to the administration  He may pray that letters issue to himself, or to any competent person or person named in the opposition.

E. Hearing and Order for Letters to Issue 1. Hearing of the petition  Show that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties

Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves

VIII.

RULE 80 – SPECIAL ADMINISTRATOR (SA)

A.

APPOINTMENT OF SPECIAL ADMINISTRATOR B. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR C. WHEN SPECIAL ADMINISTRATOR CEASE; DUTIES

A. Appointment of SA 1. SA will be appointed:  When there is delay in granting letters testamentary or administration; or  By any cause, including an appeal from allowance or disallowance of a will. 2. Special administrator:  Will take possession and charge of the estate  Until: the questions causing the delay are decided and e/a appointed 3. There must first be notice and publication  Notice through publication of the petition is a jurisdictional requirement even in the appointment of a SA.  Appointment of special administrator lies entirely in the sound discretion of the court. 4. Order of appointment is discretionary  The basis for appointing a special administrator is broad enough to include any cause or reason for delay in granting letters testamentary or of

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

in support of their respective allegations, and if a. Satisfied that the decedent left no will, or b. That there is no competent and willing executor, It shall order the issuance of letters of administration to the party best entitled





5. Duty to submit an inventory  SA is also duty bound to submit an inventory of the estate

IX. BOND OF EXECUTORS ADMINISTRATORS A.

BOND TO BE GIVEN ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. B. BOND OF EXECUTOR WHERE DIRECTED IN WILL. WHEN FURTHER BOND REQUIRED C. BONDS OF JOINT EXECUTORS & ADMINISTRATORS D. BOND FOR SPECIAL ADMINISTRATOR

A. Bond to Be Given Issuance of Letters. Amount. Conditions. 

Before an e/a enters upon the execution of his trust, and letters testamentary or administration issue, he shall give a bond, in such sum as the court directs conditioned as follows: 1. Inventory - To make and return to the court, within 3 months, a true and complete inventory of all goods, chattels, rights, credits, and estate (GCRCE) of the deceased which shall come to his possession, knowledge, or to the possession of any other person for him; 2. Administer To administer according to these rules, and, if an executor, according to the will of the testator, all GCRCE which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court; 3. Accounting - To render a true and just account of his administration to the court within 1 year, and at any other time when required by the court; 4. Perform court orders



Administrator’s bond Terms and effectivity of bond does not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability.

6. Nature of appointment of SA  An order appointing a special administrator is interlocutory in nature, a mere incident to the judicial proceedings. No appeal lies herein

B. Powers and Duties of SA     

Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and Preserve the same for the e/a afterwards appointed, and for that purpose may commence and maintain suits as administrator. May sell only such perishable and other property as the court orders sold. Not liable - to pay any debts of the deceased unless so ordered by the court.

C. When Special Cease; Duties 

Administrator

When letters testamentary/ administration are granted on the estate of the deceased He shall deliver to the e/a the goods, chattels, money, and estate of the deceased in his hands. The e/a may prosecute to final judgment suits commenced by such SA.

AND

B. Bond of Executor Where Directed in Will. When Further Bond Required

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administration as where a contest as to the will is being carried on in the same or in another court, or where there is an appeal pending as to the proceeding on the removal of an e/a, or in cases where the parties cannot agree among themselves. The phrase “by any cause” includes those incidents clearly showing that there is a delay in the probate of the will and that the granting of letters testamentary will consequently be prolonged necessitating the immediate appointment of a special administrator






C. Bonds of Joint Executors and Administrators 

When two or more persons are appointed e/a the court may take a separate bond from each, or a joint bond from all

D. Bond for Special Administrator   

Before entering upon his duties In such sum as the court directs Conditions Make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge Truly account for such as are received by him when required by the court Deliver the same to the person appointed e/a, or to such other person as may be authorized to receive them

X. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS OR ADMINISTRATORS A. ADMINISTRATION REVOKED IF WILL DISCOVER. PROCEEDINGS THEREUPON B. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL C. ACTS BEFORE REVOCATION, RESIGNATION, OR REMOVAL TO BE VALID D. POWERS OF NEW EXECUTOR OR ADMINISTRATOR

A. Administration Revoked if Will Discovered. Proceedings Thereupon 1. Administration revoked

 

When testator’s will is discovered and proved and allowed Administration shall be revoked and all powers cease The administrator shall surrender the letters of administration to the court Render his account

B. Court May Remove or Accept Resignation of E/A. Proceedings upon Death, resignation or Removal 1. Removal or resignation of executor or administrator  Neglects to: Render his account Settle the estate according to law Perform an order or judgment of the court, or a duty expressly provided by these rules; or  Absconds; or  Becomes insane; or  Becomes incapable or unsuitable to discharge the trust. 2. Effect  The remaining e/a may administer the trust alone Unless the court grants letters to someone to act with him.  If there is no remaining e/a, administration may be to any suitable person. 3. Purpose of administration  Liquidation of the estate and distribution of the residue among the heirs and legatees. 4. Liquidation  means the determination of all the assets of the estate and payment of all debts and expenses. Approval of the project of partition does not necessarily terminate administration. 5. Degree of care expected of administrator  The administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust.  Although not a guarantor or insurer of the safety of the estate nor expected to be infallible, yet the same degree of prudence, care and judgment which a person of a fair average capacity and ability exercises in similar transactions of his own, serves as the standard by which his conduct is to be judged.

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Testator directs that executor served without bond or only his individual bond  executor may be allowed by the court to give bond in such sum and with such surety as the court approves Condition - only to pay the debts of the testator Court may require of the executor a further bond In case of a change in his circumstance, or For other sufficient case, With the 4 conditions named in the last preceding section.



 


Discretion to remove administrator lies with the court’s discretion. Grounds enumerated are not exclusive

C. Acts Before Revocation, Resignation, or Removal to Be Valid

B. Articles Not to Be Inventoried:



 

The lawful acts of an e/a before the revocation of his letters testamentary or of administration, or before his resignation or removal – remains valid

   

Like powers to collect and settle the estate not administered that the former e/a had; and May prosecute or defend actions commenced by or against the former e/a; and Have execution on judgments recovered in the name of such former e/a. An authority granted by the court to the former e/a for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing.

XI. INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY A. INVENTORY AND APPRAISAL TO RETURNED WITHIN 3 MONTHS B. ARTICLES NOT TO BE INVENTORIED C. ALLOWANCE TO WIDOW & FAMILY D. PROVISION FOR SUPPORT

BE

A. Inventory and Appraisal to Be Returned Within 3 Months 1. Inventory and appraisal –  Within 3 months after his appointment every e/a shall return to the court a true inventory and appraisal of all real and personal estate of the deceased which has come into his possession or knowledge.  In the appraisement, the court may order one or more of the inheritance tax appraisers to give his or their assistance 2. Period not mandatory  3-month period is not mandatory. The fact that an inventory was filed after the 3-month period would not deprive the probate court of jurisdiction to approve it.

Wearing apparel of the surviving husband or wife and minor children The marriage bed and bedding, Such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased

C. Allowance to Widow and Family 

The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive, under the direction of the court, such allowance as are provided by law

D. Provision for Support 

This includes support even for children who are of age (Family Code Art 133), but does not include grandchildren.

XII. GENERAL POWERS DUTIES OF EXECUTORS ADMINISTRATORS

AND AND

A.

EXECUTOR OR ADMINISTRATOR TO HAVE ACCESS TO PARTNERSHIP BOOKS & PROPERTY. HOW RIGHT ENFORCED B. KEEP BUILDINGS IN TENANTABLE REPAIR C. RIGHT TO POSSESSION & MANAGEMENT OF THE REAL & PERSONAL PROPERTIES

A. Executor or Administrator to Have Access to Partnership Books and Property. How Right Enforced 1. Access to partnership books and property  At all times: have access to, and may examine and take copies of, books and papers relating to the partnership business, Make examine and make invoices of the property belonging to such partnership; The surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. 2. Court duty –  Order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books,

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D. Powers of New (The Replacement for the Removed) Executor or Administrator





papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

B. Keep Buildings Repair  

in

Tenantable

Houses and other structures and fences belonging to the estate, and Deliver the same in such repair to the heirs or devisees when directed so to do by the court.

 





A. Executor or Administrator Chargeable with all Estate and Income 

and and

So long as it is necessary for the payment of the debts and the expenses of administration Administrator cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administrator. When the estate of a deceased is already subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court. The right of an e/a to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration

B. Not to Profit by Increase or Lose by Decrease in Value 

  

A. EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE & INCOME B. NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE C. WHEN NOT ACCOUNTABLE D. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM E. ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY F. WHEN ALLOWED MONEY PAID AS COSTS G. WHAT EXPENSES & FEES ALLOWED EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED. H. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT

No e/a shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate Account for the excess (when sold for more) If sold for less, not responsible for loss, if in good faith If settled claim for less - He is entitled to charge in his account only the amount he actually paid on the settlement

C. When Not Accountable 

XIII. ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory: With all the interest, Profit, and Income of such estate; and With the proceeds of as much of the estate as is sold by him, at the price at which it was sold.

For debts due the deceased which remain uncollected without his fault

D. Accountable for Income Realty Used by Him

from

1. Accountable –  If the e/a uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final

E. Accountable if He Neglects or Delays to Raise or Pay Money 1. Accountable if:

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C. Right to Possession Management of the Real Personal Properties

I. EXAMINATION ON OATH BY COURT J. ACCOUNT TO BE SETTLED ON NOTICE K. SURETY ON BOND MAY BE PARTY TO ACCOUNTING








Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss. A/E’s responsibility for damages incurred cannot be shifted to the intestate estate.

Allowed

Money

Paid

as

The amount paid by an e/a for costs awarded against him shall be allowed in his administration account Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

1. Necessary expenses  Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto 2. Not necessary expenses a. Expenses for death anniversary; b. Expenses incurred by a presumptive heir for her appearance and that of her witnesses at the trial to oppose the probate of an alleged will; c. Expenses for the settlement of the question as who are entitled to the estate left by the deceased; d. Expenses incurred by the e/a to procure a bond e. Personal expenses of the occupant of the heir of the family residence; f. Expenses for stenographic notes, unexplained representation expenses. 3. Attorney’s fees  Administrator may not attorney’s fees from estate

recover

4. Procedure for collection of attorney’s fees:  Counsel must request the administrator to make payment and file an action against him in his personal capacity and not as an administrator, should he fail.







If judgment is rendered against the administrator and he pays, he may include the fees so paid in his account to the court. Attorney may also file a petition in the testate or intestate proceeding and ask the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an expense of administration. The award of the court is appealable by Record on Appeal.

G. What Expenses and Fees Allowed E/A; Not to Charge for Services as Attorney; Compensation Provided by Will Controls Unless Renounced. 1. Compensation  P4/per day  Or a commission upon the value of so much of the estate as comes into his possession and is finally disposed by him in the payment of debts, expenses, legacies, or distributive shares  Or 2% of the first P5,000 of such value  1% as exceeds P5,000 – P30,000  ½ % P31,000 – P100,000  Special case - When estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the e/a, a greater sum may be allowed.  If objection to the fees allowed be taken, the allowance may be re-examined on appeal. 2. 2 or more executors –  The compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. 3. Executor/administrator also an attorney –  He shall not charge against the estate any professional fees for legal services rendered by him. 4. Compensation provided in will –  That provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claims to the compensation provided by the will.

H. When Executor or Administrator to Render Account 1. Accounting –

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F. When Costs 



 

Within 1 year from the time of receiving letters testamentary or of administration Unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate;

I. Examination on Oath by Court 



As to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the e/a of being examined on oath on any matter relating to an administration account

J. Account to Be Settled on Notice 

Notice requirement - Before the account of an e/a is allowed, notice shall be given to persons interested of the time and place of examining and allowing the same; Such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the court directs.

K. Surety on Bond May Be Party to Accounting



Upon the settlement of the account of an e/a, a person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.

XIV. A. B. C. D. E. F. G. H. I. J. K. L. M. N.

CLAIMS AGAINST ESTATE

NOTICE TO CREDITORS TO BE ISSUED BY COURT TIME WITHIN WHICH CLAIMS SHALL BE FILED PUBLICATION OF NOTICE TO CREDITORS FILING COPY OF PRINTED NOTICE CLAIMS WHICH MUST BE FILED UNDER THE NOTICE. IF NOT FILED, BARRED; EXCEPTIONS SOLIDARY OBLIGATION OF DECEDENT MORTGAGE DEBT DUE FROM ESTATE CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE HOW TO FILE A CLAIM. CONTENTS THEREOF. NOTICE TO EXECUTOR OR ADMINISTRATOR ANSWER TO THE CLAIM BY EXECUTOR OR ADMINISTRATOR. OFFSETS DISPOSITION OF ADMITTED CLAIM TRIAL OF CONTESTED CLAIM JUDGMENT APPEALABLE COSTS

A. Notice to Creditors to Be Issued by Court 1. Duty of court after granting letters testamentary  Issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court. 2. Estate burdened with lien of creditors  Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors.  And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law 3. Purpose of presentation of claims against estate  To protect the estate of the deceased.  That way, the e/a will be able to examine each claim, determine whether it is a proper one which should be allowed.  Further the primary object of the provisions requiring presentation is to appraise the administrator and the probate court of the existence of the

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2. Further accounts - If court requires  The rendering of an accounting by an administrator of his administration within 1 year from his appointment is mandatory. The only exception is when the court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate  The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator not only because to so hold would be a derogation of the pertinent rules but also because there is nothing provided in said partition that the aforesaid accounts shall be deemed waived or condoned.



claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration, inasmuch as upon the death of a person, his entire estate is burdened with the payment of his debts and no creditor shall enjoy any preference or priority; all of them shall share pro-rata in the liquidation of the estate of the deceased





State the time for the filing of claims, which shall not be more than 12 not less than 6 months after the date of the first publication of the notice Failure to meet period, court may allow; requisites Before order of distribution is entered Within a time not exceeding 1 month This exception is called the rule on belated claims.

1. Statute of non-claims  Purpose: to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations have not yet prescribed.  The period, once fixed by the courts, is mandatory



If there is no notice, creditors will not be barred from filing beyond the period stated in the statue of non-claims

D. Filing Copy of Printed Notice 

Filed or cause to be filed in the court a printed copy of the notice together with affidavit setting forth: o dates of the first and last publication and o name of newspaper within 10 days after notice has been published

E. Claims Which Must Be Filed Under the Notice. If Not Filed, Barred; Exceptions 1. Statute of non-claims –  Must be filed within the time limited in the notice, covering:  Claims for money against the decedent arising from contract Express or implied Due or not Contingent or not;  Claims for funeral expenses;  Expenses for the last sickness;  Judgment for money against the decedent. 2. Effect of non-claim - forever barred;  Exception: When set forth as counterclaims in any action that the e/a may bring against the claimants

2. Discretion to allow contingent claims  The law gives the probate court discretion to allow claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution.  The presentation of money claim may be waived.

3. If the decedent is creditor and executor or administrator commences an action or continues the action:  The debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court.  Mutual claims may be set off against each other in such action.

C. Publication of Notice to Creditors

4. Favorable judgment for debtor –  Amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings  Claims not yet due, or contingent, may be approved at their present value

1. Duty of executor or administrator after notice is issued  Cause the notice to be published 3 weeks successively in a newspaper of general circulation in the province, and to be posted for the same period in four public places in the province and in two public places in the municipality where the decedent last resided.

F. Solidary Obligation of Decedent 1. Solidary obligation –  The claim shall be filed against the decedent as if he were the only debtor, Page 162 of 370

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B. Time Within Which Claims Shall Be Filed



without prejudice to the right of the estate to recover contribution from other debtors. 2. Joint obligation –  The claim shall be confined to the portion belonging to him.

4. Support claims  Claim for support should not be granted, but must wait until all claims against the estate have been settled (Gutiererez Jr. v. Macandog (1087)) 5. Execution of final judgment not proper remedy but filing of claim  While the judgment in a civil case may have become final and executory, execution is not the proper remedy to enforce payment thereof.  The ordinary procedure by which to settle claims of indebtedness against the estate is for the claimant to present a claim before the probate court. 6. Mandamus not available  In absence of any showing that judge had already allowed the administrator to dispose the estate and pay the debts and legacies of the deceased, a writ of mandamus will not issue to compel him to order payment of petitioner’s claim 7. This rule is mandatory  The requirement is for the purpose of protecting the estate of deceased. The e/a is informed of claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed.  The above rule strictly requires the prompt presentation and disposition of claims against the decedent’s estate in order to settle the affairs of the estate as soon as possible, pay off its debts and distribute the residue. 8. Charges against conjugal property  Same rules apply for debts contracted chargeable against the conjugal property.





One by which, by its nature is necessarily dependent upon an uncertain event for its existence and claim, and its validity and enforceability depending upon an uncertain event. Contingency refers to uncertainty of liability, not collection.

G. Mortgage Debt Due From Estate 1. Options of creditor holding a credit secured by mortgage or other collateral security (Which are alternative, not successive): a. Waive the mortgage and claim the entire debt from the estate of mortgagor as an ordinary claim; or b. Foreclose the mortgage judicially and prove the deficiency as an ordinary claim; or c. Rely on the mortgage exclusively, or other security and foreclose the same at anytime, before it is barred by prescription, without the right to file claim for deficiency. 2. Right of executor or administrator –  Redeem the property, by paying the debt, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made

H. Claim of Executor or Administrator against an Estate 1. If executor or administrator has claim against the estate  He shall give notice thereof to the court  Court shall appoint a special administrator Who will have the same power and liability, in the adjustment claims  Court may order e/a to pay the special administrator necessary funds to defend such claim (one of the 2 instances of appointment of special administrators in the Rules, the other regarding delay in proceedings, supra)

I. How to File a Claim. Contents Thereof. Notice to E/A   

Deliver the claim With the necessary vouchers to the clerk of court Serving a copy on the e/a

9. Meaning of contingent claim

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3. Claims required to be filed  Money claims (including debts or interest thereon)  only those which are proper against the decedent – claims upon a liability contracted before death.  Period runs against all claimants residents, non-residents, infant, insane.



3. If the claim is not due, or is contingent, when filed, it must also be supported by affidavits stating the particulars thereof.  When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant.  The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued, although the court in its discretion and as a matter of convenience, may order all the claims to be collected in a separate folder.



claimant, and his failure to do so shall bar the claim forever. A copy of the answer shall be served by the e/a on the claimant.

2. Extension of time - court discretion.

K. Disposition of Admitted Claim 1. Admitted claim - Court has option to:  Approve the same without hearing  Order that known heirs, legatees or devisees be notified and heard, BEFORE approving 2. If opposed –  Allow opposition 15 days to file an answer to the claim in the manner prescribed.

L. Trial of Contested Claim 1. After answer or period for answer expired –  Court shall set the claim for trial with notice to both parties  Refer the claim to a commissioner

M. Judgment Appealable 1. Court will rule on the claim  Approve Pay, in due course of administration the amount due Such shall not create any lien on the property of the estate or give judgment creditor payment priority.  Disapprove

4. Attorney’s fees as expenses of administration  Fees of the lawyer representing the e/a are directly chargeable against the client for whom the services have been rendered and not against the estate of the decedent.

2. Judgment  Filed, together with record of administration proceedings  With notice to parties  Appealable as in ordinary cases

J. Answer to the Claim by E/A. Offsets

1. Judgment creditor cannot recover cost:  When the e/a, in his answer, admits and offers to pay part of a claim,  And the claimant refuses to accept the amount offered in satisfaction of his claim,  If he fails to obtain a more favorable judgment,  He must pay to the e/a costs from the time of the offer  Where an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided, the prevailing party shall be

 

Filed within 15 days after receipt of copy He must admit or deny the claim and set forth the substance of the matters which are relied upon in admission or denial

1. If he has no knowledge sufficient to admit or deny –  state such want of knowledge  Allege also any offset claims which the decedent before death had against the

the

N. Costs

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1. If founded on a bond, bill, note, or other instrument - Original need not be filed  Only a copy with all endorsements shall be attached with the claim  Subject to exhibition of original on demand .  If original lost or destroyed Claimant must accompany his claim with affidavit containing a copy OR description and stating its loss or destruction 2. When the claim is due, it must be supported by affidavit stating:  The amount justly due  That no payments have been made thereon which are not credited  There are no offsets to the same, to the knowledge of the affiant.



allowed the costs of his action up to the time of its discontinuance.


XV. ACTIONS BY AND EXECUTORS ADMINISTRATORS A. B. C. D.

F. G. H. I.

J.

ACTIONS WHICH MAY & WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR OR ADMINISTRATOR EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND ACTIONS WHICH SURVIVE HEIR MAY NOT SUE UNTIL SHARE ASSIGNED EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR MORTGAGE DUE ESTATE MAY BE FORECLOSED PROCEEDINGS WHEN PROPERTY CONCEALED, EMBEZZLED OR FRAUDULENTLY CONVEYED POWERS ENTRUSTED WITH ESTATE COMPELLED TO RENDER ACCOUNT EMBEZZLEMENT BEFORE LETTERS ISSUED PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED. WHEN EXECUTOR OR ADMINISTRATOR MUST BRING ACTION WHEN CREDITOR MAY BRING ACTION. LIEN FOR COSTS

A. Actions Which May and Which May Not Be Brought against Executor or Administrator  

Actions not to be brought against e/aClaim for the recovery of money or debt or interest Actions to be brought Recover real or personal property or interest therein; Or to enforce a lien thereon; and Actions to recover damages for an injury to a person or property

1. Claims against the administrator may be presented in the administration proceedings but not against third persons  Administrator may not pull a third person against his will into the administration proceedings by mere motion for a demand of rentals, but must do so in a separate action

B. Executor or Administrator May Bring or Defend Actions Which Survive 1. Actions to be defended or may be brought against –  For the recovery or protection of the property or rights of the deceased actions for causes which survive Page 165 of 370

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E.

AGAINST AND



2. Injury  Injury to property is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished.  Maliciously causing a party to unnecessary expenses is certainly injury to the party’s property.



C. Heir May Not Sue Until Share Assigned

1. Complainant –  Executor, administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased.

2. Previous declaration of heirship not necessary  In order that an heir may assert his right to the property of a deceased, no previous judicial declaration of heirship is necessary. 3. Heirs may not sue administrator until their shares are assigned.  Before distribution or before any residue is known, the heirs have no cause of action against the e/a.  This does not apply to a donation inter vivos 4. When heirs may act in place of administration  Upon the commencement of the testate or intestate proceedings, the heirs have no standing in court actions for recovery or protection of the property rights of deceased, except when the e/a is unwilling or fails or refuses to act, in which event the heirs may act in his place.

D. Executor or Administrator May Compound with Debtor  

Compound with the debtor of deceased for a debt due May give a discharge of such debt on receiving a just dividend of the estate of debtor

E. Mortgage Due Foreclosed 

Estate

He may foreclose the belonging to the estate.

May

Be

mortgage

F. Proceedings When Property Concealed, Embezzled or Fraudulently Conveyed

2. What:  A person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased; or  That such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of the deceased. 3. Duty of the court –  May cite such suspected person to appear before it any may examine him on oath on the matter of such complaint;  If refuses to appear or answer Punish for contempt and commit to prison until he submits to the order  The interrogatories put any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office. 4. Purpose of the rule  To elicit information or secure evidence, not to decide WON the property belongs to the deceased or persons examined (no power to adjudicate titles or determine controverted rights).

G. Powers Entrusted with Estate Compelled to Render Account 1. Complainant administrator

-

Executor

or

2. Duty of court  May cite to appear before it a person entrusted by an e/a with any part of the estate of the deceased,  May require such person to render a full account  On oath, of the money, goods, chattels, bonds, account, or other papers belonging to such estate as came to his

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1. Not to sue on actions to recover title or possession to lands or damages to lands  Until there is an order of the court assigning such lands to such heir or devisee; or  Until the time allowed for paying debts has expired

There is no need of special authority from the court for the e/a to bring an action for foreclosure on behalf of the estate.



possession in trust for such e/a, and of his proceedings thereon; 3. Refusal –  May punish him for contempt as having disobeyed a lawful order of the court.

H. Embezzlement Issued 

Before

Letters

1. Consequence –  Such person shall be liable to an action in favor of the e/a of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. 2. Double value rule does not apply  The liability for double the value of the property does not apply to the manager of the company who carries on the business after the death of the principal and applies the proceeds of sale to the payment of debts contracted in running the business.

I. Property Fraudulently Conveyed by Deceased May Be Recovered. When Executor or Administrator Must Bring Action 1. Instances: a. There is deficiency of assets b. Deceased in his lifetime had conveyed real or personal property, right or interest therein, or debt or credit c. With intent to defraud his creditors or avoid any right, debt or duty d. Or had so conveyed such property, right, interest, debt or credit e. That by law the conveyance would be void as against the creditors f. And the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime. 2. Duty of executor/administrator  May commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt or credit for benefit of the creditors

Provided, creditors making the application pay such part of the costs and expenses or give security therefor.

J. When Creditor May Bring Action. Lien for Costs 1. If executor/administrator failed to commence such action  With court permission  Any creditor may commence and prosecute to final judgment a like action for the recovery of the subject of the conveyance or attempted conveyance  In the name of the e/a  Provided, he files a bond, conditioned to indemnify the e/a against the cost and expenses incurred by such action  Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. 2. If conveyance or attempt in favor of executor/administrator –  The action which a creditor may bring shall be in the name of all the creditors, No need for: (1) permission and (2) bond 3. Administrator creditor cannot ask for preliminary attachment  The administrator of the estate, who is also an alleged creditor of the estate cannot ask for the issuance of a writ of attachment.  Money claim should be ventilated in the estate case

XVI. PAYMENT OF THE DEBTS OF THE ESTATE (Asked in the 2002 Bar Examinations) A. B. C. D. E. F. G. H. I. J. K.

DEBTS PAID IN FULL IF ESTATE SUFFICIENT PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION MADE BY WILL PERSONALLY FIRST CHARGEABLE FOR DEBTS, THEN REALTY ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS CONTINGENT CLAIM; WHEN ALLOWED COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATES, OR HEIRS HAVE BEEN IN POSSESSION ORDER OF PAYMENT IF ESTATE IS INSOLVENT DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS INSOLVENT NON-RESIDENT INSOLVENT RESIDENT; FOREIGN CREDITORS ORDER OF PAYMENT OF DEBTS

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If a person before granting letters testamentary or administration  Embezzles or alienates Any of the money, goods, chattels, or effects of such deceased





L.

APPEAL TAKEN FROM A DECISION OF THE COURT CONCERNING THE CLAIM M. TIME TO TIME FURTHER ORDERS OF DISTRIBUTION N. CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF ORDER O. COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A TIME FOR DISPOSING THE ESTATE ANY PAYING DEBTS & LEGACIES P. GROUND FOR EXTENSION

A. Debts Paid Sufficient

  

Full

If

D. Estate to Be Retained to Meet Contingent Claims 

Estate

After all money claims heard and ascertained It appears that there are sufficient assets to pay the debts E/A shall pay the same within the time limited for that purpose. The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratrix. The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled.

B. Part of Estate from Which Debt Paid When Provision Made by Will 1. Testator provided for payment of debt –  Expenses of administration, or family expenses shall be paid according to such provisions 2. If not sufficient –  The part of the estate not disposed of by will shall be appropriated for the purpose

C. Personally First Chargeable for Debts, Then Realty 1. General Rule:  Personal estate not disposed of by will shall be FIRST chargeable 2. Exception:  Not sufficient for the purpose  Its sale will redound to the detriment of the participants for the estate 3. in which case—  The whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or



If court is satisfied that such claim is valid: It may order the e/a to retain in his hands sufficient estate For the purpose of paying the contingent claim when such becomes absolute. If estate insolvent - Retain a portion equal to the dividend of the other creditors.

E. Contingent Claim; When Allowed   

When it becomes absolute Presented to the court or e/a within 2 years from the time limited for other creditors to present their claims Not disputed by e/a

1. If disputed –  it may be proved and allowed or disallowed by the court as the facts may warrant 2. Court ruling:  Allowance of contingent claim or Disallowance If allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the e/a is sufficient.  Claim not presented after becoming absolute and allowed within 2 year period  The assets retained in the hands of the e/a, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled;  But the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received.

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

in

 

otherwise encumbered for that purpose by the e/a, Court approval obtained first Any deficiency shall be met by contributions in accordance with the provisions of S6 of this rule.



F. Court to Fix Contributive Shares Where Devisees, Legates, or Heirs Have Been in Possession



1. Possession before debts and expenses paid:  Court shall hear  and settle the amount of their several liabilities  Order how much and in what manner each shall contribute  May issue execution as circumstances require.

K. Order of Payment of Debts 

G. Order of Payment if Estate Is Insolvent 

E/A pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of credits)

H. Dividends to Be Proportion to Claims  

Paid

in

Each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.



His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits.

J. Insolvent Creditors

Resident;

L. Appeal Taken From a Decision of the Court Concerning the Claim    

I. Insolvent Non-Resident

Foreign

1. Foreign claims proven in another country 2. E/A in the Philippines had knowledge of the presentation of such claims in such country 3. E/A had opportunity to contest such allowance

Before the expiration of the time limited for the payment of the debts  The court shall order the payment thereof, and the distribution of the assets received by the e/a for that purpose among the creditors,  As the circumstances of the estate require and in accordance with the provisions of this rule

Court may suspend the order for the payment And may order the distribution among creditors whose claims are definitely allowed Leaving in the hands of e/a sufficient assets to pay the claim disputed and appealed . When a disputed claim is finally settled  court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors.

M. Time to Time Further Orders of Distribution   

Whole of the debts not paid on first distribution And if the whole assets not distributed Or other assets afterwards come to the hands of e/a.

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2. Liability of heirs and distributes  Heirs are not required to respond with their own property for the debts of their deceased ancestors.  But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate

The court shall: Receive a certified list of such claims, when perfected in such country, And add the same to the list of claims proved against the deceased person in the Philippines So that a just distribution of the whole estate may be made equally among all its creditors; But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to their respective claims.


N. Creditors to Be Paid in Accordance With Terms of Order 

Creditors to be paid in accordance with terms of order, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order.


XVII. SALES, MORTGAGES, OTHER ENCUMBRANCES PROPERTY OF DECEDENT A. B. C. D.

1. Period:  x < 1 year  Court may extend the time to x < 6 months per extension Whole period to the original e/a MUST be only x < 2 years

F.

2. Requisites  E/A must apply  Notice must be given as to time and place of hearing  Court must hear it

I.

P. Ground for Extension  



Original e/a dies New administrator appointed The court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original e/a x < 6 months Not exceeding 6 months at a time and not exceeding 6 months beyond the time which the court might have allowed to such original e/a Notice shall be given of the time and place for hearing such application, as required in the last preceding section.

E.

G. H.

SALE OF PERSONAL ESTATE; REQUIREMENTS SALE, MORTGAGE, OR ENCUMBRANCE (S/M/E) OF REAL PROPERTY REQUISITES FOR DISALLOWING S/M/E REAL OR PERSONAL SALE OF WHOLE OR PART OF PERSONAL OR REAL ESTATE PERSONAL/REAL S/M/E IS NOT NECESSARY TO PAY DEBTS, EXPENSES OF ADMINISTRATION OR LEGACIES IN THE PHILIPPINES COURT AUTHORIZE S/M/E OF REALTY ACQUIRED ON EXECUTION OR FORECLOSURE REGULATIONS FOR AUTHORIZING S/M/E: WHEN COURT MAY AUTHORIZE CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY WHERE THE DECEASED IN HIS LIFETIME HELD REAL PROPERTY IN TRUST FOR ANOTHER PERSON

A. Sale of Personal Requirements    

Estate;

Application of e/a Written notice to heirs and persons interested Court may order the sale of the whole or part of personal estate.

other

1. When:  If necessary for the purpose of paying debts, expenses of administration or legacies or  Preservation of property

B. Sale, Mortgage, or Encumbrance (S/M/E) of Real Property Proper When:   

When personal estate not sufficient to pay debts, expenses of administration and legacies When sale of personal property may injure the estate Where the testator has not made sufficient provision for payment

1. Requisites  E/A to apply with court  Written notice to the heirs, devisees and legatees residing in the Philippines  Authorize so much as may be necessary of the real estate, in lieu of personal estate  For the purpose of paying such Page 170 of 370

SPECIAL PROCEEDINGS

O. Court Shall Allow Executor or Administrator a Time for Disposing the Estate Any Paying Debts and Legacies

AND OF


Provided, if it clearly appears that such sale, mortgage or encumbrance is beneficial to the persons interested 2. If part cannot be s/m/e, without injury to those interested in the remainder – 3. Authority for s/m/e of the whole, or so much necessary or beneficial under the circumstances




C. Requisites for Disallowing S/M/E Real or Personal

  

Any person interested in the estate gives a bond in fixed by the court Conditioned to pay the debts, expenses of administration and legacies Within such time the court directs Bond shall be for the security of the creditors and e/a, which may be prosecuted for the benefit of either.

D. Sale of Whole or Part of Personal or Real Estate    

When sale will be beneficial to heirs, devisees, legatees and other interested persons E/A application Notice to heirs, devisees, legatees, interested persons Court may authorize e/a to sell the whole or part of estate Although not necessary to pay debts, expenses of administration, legacies

1. Will not be granted - If inconsistent with the provisions of a will.  In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions. 2. Requisites are mandatory  The requirements of written notice of the application as well as the time and place of hearing to be served upon the heirs, devisees and legatees residing in the Philippines is mandatory. Without such notice, the sale, mortgage or encumbrance made is void.  Notice to parents of minor is not sufficient.  Notice to counsel or guardian ad litem is sufficient. 3. Reason for mandatory requirements  The heirs are the presumptive owners. Since they succeed to all the rights and obligations of the deceased from the moment of the latter’s death, they are

E. Personal/Real S/M/E Is Not Necessary to Pay Debts, Expenses of Administration or Legacies in the Philippines   

But if it appears from records and proceedings of a probate court in foreign country The estate of deceased in foreign country is not sufficient Court here may authorize the e/a to s/m/e In same manner as for payment of debts or legacies in the Philippines

F. Court Authorize S/M/E of Realty Acquired on Execution or Foreclosure 

Same circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate

G. Regulations S/M/E:

for

Authorizing

1. Executor/administrator file a written petition setting forth: a. Debts due from deceased, expenses of administration, legacies; b. Value of personal estate; c. Situation of the estate to be s/m/e; d. Such other facts that show s/m/e is necessary or beneficial. 2. Court to—  Fix a time and place for hearing such petition, and  Cause notice stating the nature of the petition, the reasons for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper. 3. E/A gives additional bond, conditioned that such e/a will account for the proceeds of the s/m/e. 4. Court a. If 1 – 3 complied with

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

the persons directly affected by the sale or mortgage and therefore cannot be deprived of the property except in the manner provided by law


b. Authorize s/m/e such part of estate as is deemed necessary c. Sale - either public or private whichever most beneficial d. E/A shall be furnished with a certified copy of such order 5. Sale through public auction –  The mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale

7. Regulations are mandatory  The regulations provided in this section apply to both testate and intestate proceeding and are mandatory. An order of sale not issued in accordance with such regulations is void and the sale made is also void 8. Estoppel to question regularity of sale  But where a party did not object to the order of the court decreeing the sale of property belonging to the estate by sealed bids and even participated therein by submitting his own bid, party is estopped from subsequently questioning the regularity of the sale to highest bidder. 9. Need for approval of sale by court  A sale of land under judicial administration is not effective until approved by the court, and although leave of court to sell the property has been obtained, a purported sale which has not been approved and which varies materially from the authority granted cannot be made on the basis of an action by the purchaser for specific performance. 10. Power of probate court to nullify unauthorized sale  The probate court can declare null and void the disposition of property under administration, made by administrator, the same having been effected without authority from said court.

11. Authority of court to approve sale of property by prospective heir  The intestate court has the power to execute its order with regard to the nullity of an unauthorized sale of estate property, otherwise its power to annul the unauthorized or fraudulent disposition of estate property would be meaningless  The sale of an immovable property belonging to an estate of a decedent in a special proceeding needs court approval.  But the court has no jurisdiction to make pronouncement regarding the existence or non-existence of encumbrances or to cancel a mortgage on real property in its order approving the sale of the estate under administration 12. Right of heirs to dispose of ideal share  The sale made by an heir of his share in an inheritance, subject to the result of the pending administration is valid and in no way stands in the way of such administration.  There is no provision of law which prohibits a co-heir from selling to a stranger his share of an estate held in common before the partition of the property is approved by the court.

H. When Court May Authorize Conveyance of Realty Which Deceased Contracted to Convey   

 

Deceased in his lifetime under valid contract to deed real property, or an interest therein, On application The court will authorize the e/a to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; If the contract is to convey real property to the e/a, the clerk of court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime;

1. Not authorized  But no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further

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6. Recording –  In the registry of deeds of the province in which the real estate s/m/e together with a certified copy of the order of the court, together with the deed of the e/a for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime






notice has been given, by publication or otherwise, as the court deems proper; Nor if the assets in the hands of the e/a will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

   

I. Where the Deceased in His Lifetime Held Real Property in Trust for Another Person  

1. Effect of sales executed by heirs  A contract of sale is not invalidated by the fact that it is subject to probate court approval. 2. Legal personality of special administrator to seek review  Not being a party in the proceedings below, the special administratrix does not have any legal personality to seek a review by the Supreme Court of the decisions of the SEC and the CA.

XVIII. DISTRIBUTION AND PARTITION OF THE ESTATE A. WHEN ORDER FOR DISTRIBUTION OF RESIDUE MADE B. QUESTIONS AS TO ADVANCEMENT MADE, OR ALLEGED TO HAVE BEEN MADE, BY THE DECEASED TO ANY HEIR C. EXPENSES OF PARTITION D. RECORDING OF THE ORDER OF PARTITION OF ESTATE E. EFFECT OF FINAL DECREE OF DISTRIBUTION

A. When Order for Distribution of Residue Made 



General Rule: The following must be paid before distribution:  Debts;  Funeral charges;  Expenses of administration;  Allowance to the widow;  Inheritance tax. Exception: The distributees give a bond conditioned on the payment of above obligations

1. Duty of the court  On application of e/a interested in the estate  Notice

or

person



2. The approval of a project of partition does not necessarily terminate administration.  Before a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special proceeding instituted for the purpose.  Trial courts trying an ordinary action cannot resolve to perform acts pertaining to a special proceeding because it is subject to specific prescribed rules. 3. Proceedings for the settlement of estate is deemed ready for final closure when: a. There should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but b. Such order shall not be issued until it is shown that the “debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate” have been paid, which is but logical and proper, c. Besides, such an order is usually proper and specific application for the purpose of the interested party or parties, and not of the court. 4. Before there could be a distribution of estate, the following stages must be followed: a. Payment of obligations (liquidation of estate) b. Declaration of heirs  to determine to whom the residue of the estate should be distributed. Afterwards, the residue may be distributed and delivered to the heirs. o Determination the right of a natural child o Determination of proportionate shares of distributes.

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

Same notice requirement Court may authorize the e/a to deed such property to the person or HIS e/a Court may order the execution of such trust, whether created by deed or law

Hearing Court shall assign the residue of the estate to the persons entitled to the same, Naming them and the proportions, or parts, to which each is entitled, Such persons may demand and recover their respective shares from the e/a, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares  heard and decided as in ordinary cases.



5. Project of partition –  the e/a has no duty to prepare and present the same under the Rules.  The court may, however, require him to present such project to better inform itself of the condition of the estate.  A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject.  It is the court that makes that distribution of the estate and determine the persons entitled thereto

B. Questions as to Advancement Made, or Alleged to Have Been Made, by the Deceased to Any Heir 

There must be a hearing and final order of the court thereon shall be binding on the person raising the questions and on the heir.

C. Expenses of Partition 



Paid by e/a when he has retained sufficient effects in his hands Will be paid when it appears equitable to the court And not inconsistent with the intention of the testator Otherwise, paid by the parties in proportion to their respective shares or interest The apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the e/a against the party not paying the sum assessed.

D. Recording of the Partition of Estate 

Order

of

Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

Decree

of

1. Nature of proceedings –  In rem, which is binding against the whole world.  All persons having interest in the subject matter involved, whether they are notified or not, are equally bound.  The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them.  The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence.  Even then, the better practice to secure relief is reopening of the same case by proper motion within reglamentary period, instead of an independent action, the effect of which, if successful, would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. 2. Prohibition against interference by other courts  General Rule: a court should not interfere with probate proceedings pending in a co-equal court.  A separate action (example: to allow a spurious child to present evidence on his filiation and to claim his share in the decedent’s estate) is not allowed. It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. 3. Order is appealable  An order which determines the distributive shares of the heirs of a deceased person is appealable. If not appealed within the reglamentary period, it becomes final. 4. Writ of execution  The probate court generally cannot issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the e/a may satisfy without the necessity of resorting to a writ of execution.

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6. When may proceedings be closed  It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties

E. Effect of Final Distribution:


5. Instances when probate court may issue writ of execution: a. To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent’s assets b. To enforce payment of expenses of partition c. To satisfy the costs when a person is cited for examination in probate proceedings

XIX. TRUSTEES

A. Where Trustee Appointed 

A trustee necessary to carry into effect the provisions of a will on written instrument shall be appointed by the RTC in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the RTC of the province in which the property, or some portion thereof, affected by the trust is situated.

1. Procedure a. Allowance of the instrument creating the trust b. Petition by the e/a or the person appointed as trustee in the instrument c. Appointment of trustee by the court d. Notice to all interested parties e. Filling of bond by the trustee 2. Discretion of the Court in the appointment of a trustee  The power to appoint a trustee is discretionary with the court before whom application is made, and the appellate court will decline to interfere except in cases of clear abuse.

B. Appointment and Powers of Trustee Under Will. Executor of Former Trustee Need Not Administer Trust   1.   

Testator has omitted in his will to appoint a trustee A trustee is necessary to carry into effect the provisions of the will Duty of court Notice to persons interested Appoint a trustee No person succeeding to a trust as e/a of a former trustee shall be required to accept such trust.

2. Notice and consent of beneficiary are not essential for the creation of trust  This is because the acceptance by the beneficiary is presumed 3. Creation of trust through an inoperative will  A written instrument though inoperative as a will from want of compliance with statutory requisitions, may yet operate as a declaration of trust.  But such writing must state the fiduciary relation and the terms and conditions of the trust with sufficient certainty and it must be of such nature that the party must have intended it as a declaration of a trust

C. New Trustee    

Original trustee under a written instrument declines, resigns, dies or removed Before the objects of the trust are accomplish And no adequate provision is made in the instrument for supplying vacancy Court - notice to all persons interested, appoint a new one to act alone or jointly

1. Power of new trustee –  Have and exercise the same powers, right, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either or jointly with the others

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A. WHERE TRUSTEE APPOINTED B. APPOINTMENT AND POWERS OF TRUSTEE UNDER WILL. EXECUTOR OF FORMER TRUSTEE NEED NOT ADMINISTER TRUST C. NEW TRUSTEE D. TRUSTEE APPOINTED ABROAD E. TRUSTEE MUST FILE BOND BEFORE PERFORMING DUTIES F. CONDITIONS OF THE BOND G. APPRAISAL AND COMPENSATION OF TRUSTEE H. REMOVAL OR RESIGNATION OF TRUSTEE I. IF SALE OR ENCUMBRANCE OF TRUST ESTATE NECESSARY OR EXPEDIENT




2. Non-acceptance by trustee not sufficient for failure of trust  A trust will never fail for want of a trustee and a court will always appoint a trustee where necessary to the administration of a trust or to prevent failure of the trust, where the necessity arises from failure of appointment, from non-acceptance or disqualification of a trustee or from other cause; or the court will execute the trust by its officers or otherwise effect its accomplishment.

1. Requisites  Land in the Philippines held in trust  In favor of persons resident Philippines  A trustee appointed abroad

of

2. Procedure: a. Philippine land is held in trust for Philippine residents, by a trustee who derives authority from outside the Philippines b. Petition filed in the RTC of the province where the land is situated c. Notice to all interested parties d. Trustee is ordered by the court to apply for appointment. 3. Duty of such trustee  Petition the CFI of province where land is situated  Notify all persons interested  Apply to the court for appointment as such 4. Failure to do these –  Court will declare such trust vacant and shall appoint new trustee. 5. Territoriality of authority of trustee  The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic.  This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed.

E. Trustee Must File Bond Before Performing Duties    

Filed in the clerk of court Amount fixed by the judge Payable to the government Philippines Sufficient and available for protection of any party in interest

of

2. Exemption by court from filing of bond  When testator has directed such exemption  All persons beneficially interested in the trust, request also such exemption  Exemption may be cancelled at any time 3. Effect of failure to file a bond  If the trustee fails to furnish a bond as required by the court, he fails to qualify as such. Nonetheless the trust is not defeated by such a failure to give bond

F. Conditions of the Bond 1. Inventory –  That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 2. Faithful management –  That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; 3. Accounting –  That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order; 4. Settlement of account and deliver estate –  That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto. 5. Exemption of inventory  When trustee is not the original trustee appointed  Court’s discretion  If an inventory has already been filed

the

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D. Trustee Appointed Abroad

1. Failure to give bond - Considered to have declined or resigned the trust.



6. Duties of trustee vis-à-vis executor or administrator  A trustee, like an e/a, holds an office of trust, particularly when the trustee acts as such under judicial authority.  The duties of e/a rare however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract.  Besides, the duties of trustees may cover a wider range than those of e/a of the estate of deceased persons (Araneta v. Perez (1962))

H. Removal Trustee

7. Nature of possession by trustee  The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same.  A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust (Salinas v. Tuazon).

2. Resignation –  He may resign; court will determine if proper

1. Appraisal –  When inventory is necessary and court may require inheritance tax appraisers to assist. 2. Compensation of trustee –  According to the trust instrument; if none it shall be fixed by the court 3. Factors affecting trustee’s compensation a. The character and powers of the trusteeship b. The risk and responsibility c. Time d. Labor and skill required in the administrator of the trust, as well as the care and management of the estate.

 

Resignation

Petition by parties interested Due notice to the trustee Hearing

of

beneficially

1. Grounds for removal  Removal appears essential in the interest of petitioner  Trustee is insane or  otherwise incapable of discharging his trust or  evidently unsuitable

I. If Sale or Encumbrance of Trust Estate Necessary or Expedient      

Petition Notice Hearing Court may order such to be made And the re-investment and application of the proceeds thereof in such manner as will best effect the objects of the trust The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards

1. Requirement of judicial order for sale or encumbrance of trust estate  it is of a perishable or transitory nature and then only to convert it into substantial, enduring and revenueproducing investment.  If a change be deemed necessary, or for the interest of the beneficiary, the permission or sanction of the court should be obtained

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G. Appraisal and Compensation of Trustee



or


Chapter 3: Escheats

Chapter 3: Escheats (Asked in the 2002 Bar Examinations) I. WHEN ALLOWED II. DUTY OF COURT; WHEN PETITION SUFFICIENT III. COURT SHALL ADJUDGE THAT THE ESTATE SHALL ESCHEAT IV. PERIOD TO APPEAL AND CLAIM THE ESTATE V. OTHER ACTIONS FOR ESCHEAT

I. WHEN ALLOWED Person dies intestate Seized of real property in the Philippines Leaves no heir or person by law entitled to the same

1. Procedure a. Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition b. In the RTC of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines c. If petition is sufficient in form and substance, the court shall fix a date and place for the hearing o Which date shall not be more than 6 months after the entry of the order d. The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best e. The court shall hear the case and judge whether or not the estate shall escheat f. If the court rules in favor of the Republic, o It shall assign the personal estate to the municipality or city where the deceased last resided, and the real estate to the municipalities or cities, respectively, in which the same is situated. o If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. o Such estate shall be for the benefit of public schools, and public charitable institutions

2. Who may file:  Solicitor General or his representative 3. Where to file:  CFI of the province where deceased last resided OR which he had estate 4. Nature of escheat  Is not an ordinary civil action but a special proceeding that should be commenced not by complaint but by petition.  It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction.  It is a substantial right of the state and is not a claim based on charity, gratuity or unearned benefit. 5. Parties  It must be initiated by the Government through the Solicitor General.  All interested parties, especially the actual occupants and adjacent lot owners shall be personally notified of the proceeding and given the opportunity to present their valid claims  Any person alleging to have a direct right or interest in the property sought to be escheated, likewise an interested and necessary party, may properly oppose the petition for escheat or file claim thereto with the court within the period provided in the Rule. 6. Requisites for filing: a. A person died intestate b. He left no heirs or persons by law entitled to the same c. Deceased left properties 7. Proceedings in escheat cannot be converted into settlement of the estate.  Proceedings in escheat cannot be converted into settlement of the estate.  The escheat court does not have the power to order or proceed with, the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to the oppositors

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SPECIAL PROCEEDINGS

  

o

and centers in said municipalities or cities. It may also order the establishment of a permanent trust, so that only the income from the property shall be used.


II. DUTY OF COURT; PETITION SUFFICIENT  

Chapter 3: Escheats

WHEN

Fix a date and place for hearing Date - x < 6 months after the entry of the order Direct a copy of the order be published before the hearing At least once a week for 6 successive weeks Newspaper of general circulation in the province



IV. PERIOD TO APPEAL AND CLAIM THE ESTATE 

  

Date and time published Right of government proven in court Payment of just debts and charges

1. Personal estate  goes to the municipality or city of last residence 2. Real estate  goes to the municipality or city where same is situated  If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located.  Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.  The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that the only income from the property shall be used

Within 5 years from date of judgment; otherwise, barred forever

1. By whom:  Devisee, legatee, heir, widow, widower, or other person entitled to such estate appears  Such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate 2. Period for filing claim –  5 years from date the property was delivered to the state.

V. OTHER ACTIONS FOR ESCHEAT 



Until otherwise provided by law, actions reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part.

3. Conclusiveness of judgment of escheat  Conclusive upon persons notified by advertisement to all persons interested. 4. Evidence required  Escheats and forfeitures are not favored by law, and the modern rule under statutes regulating escheat proceedings is that the burden of proof rests on the state to prove that the property in question is in all respects liable to escheat. 5. Waiver  The right to escheat may be waived, either expressly or impliedly.

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III.COURT SHALL ADJUDGE THAT THE ESTATE SHALL ESCHEAT

Thus where the right to escheat claimed by municipality has existed long prior to the registration proceedings instituted by the Roman Catholic Archbishop of Manila and the same has not been asserted in said proceedings, it is deemed to have been completely waived.


CHAPTER 4: Special Rules Implementing the Family Courts I. GUARDIANSHIP II. ADOPTION III. RULES ON CUSTODY OF CHILDREN (RULE 99, SECS. 6 AND 7) IV. CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-0404-SC) V. COMMITMENT OF CHILDREN (A.M. NO. 02-1-19-SC)

A. Guardianship In General 1. Guardianship – the power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself (Herrera).

2. Guardian – 



a person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs (Herrera).

A trust relation of the most sacred character (Herrera).

4. Purpose 

To safeguard the right and interests of minors and incompetent persons.

5. Basis: Parens Patriae 

GUARDIANSHIP

A. GUARDIANSHIP IN GENERAL B. GUARDIANSHIP OF MINORS 1. PARENTS AS LEGAL GUARDIANS (ART. 225, FC) 2. RULE ON GUARDIANSHIP OF MINORS (A.M. NO. 03-02-05-SC) a. SCOPE & APPLICABILITY b. PETITION FOR APPOINTMENT OF GUARDIAN c. THE GUARDIAN d. SELLING & ENCUMBERING THE PROPERTY OF THE WARD e. REMOVAL, RESIGNATION, & TERMINATION OF GUARDIANSHIP C. GUARDIANSHIP OF INCOMPETENTS (RULES 92-98) a. SCOPE & APPLICABILITY b. PETITION FOR APPOINTMENT OF GUARDIAN c. THE GUARDIAN d. SELLING & ENCUMBERING THE PROPERTY OF THE WARD (RULE 95) e. TERMINATION OF GUARDIANSHIP (RULE 97)



3. Nature

1. 2.

3.

It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavourable position vis-à-vis other parties (Nery v. Lorenzo, 1972). Kinds of Guardians (Regalado) Legal Guardian – deemed as guardian by provision of law, without need of court appointment (Art. 320, CC; Art. 225, FC) Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action. Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. a. Guardian over the person. b. Guardian of the property. c. General Guardian – has custody and care of the ward’s person and property.

6. Ancillary Guardianship – 

guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the latter.

B. Guardianship of Minors 1. Parents as Legal Guardians (Art. 225, FC) 



The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. 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 amount as the court may determine, but not less than 10% of the value of the property or annual income. A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides, or if the child resides in a

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SPECIAL PROCEEDINGS

I.

Chapter 4: Special Rules Implementing the Family Courts





foreign country, in the proper court of the place where the property or any part thereof is situated. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

Bautista vs. Bautista: A father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward’s property and only with court’s approval.

2. Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) a. Scope and Applicability 



The Rule on Guardianship of Minors applies to petitions for guardianship over the person or property, or both, of a minor. The Rules on Guardianship (Rules 92-98, RoC) apply only to guardianship of incompetents other than a minor.

b. Petition for Guardian 







Appointment

of

Who may file: Resident minor 1. Any relative or other person on behalf of a minor; 2. The minor himself, if 14 years of age or over; 3. The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized. Non-resident minor 1. Any relative or friend of such minor; 2. Anyone interested in his property, in expectancy or otherwise. Where to file: Resident minor Family Court of the province or city where the minor actually resides. Non-resident minor

Grounds for filing: 1. Death, continued absence, or incapacity of his parents; 2. Suspension, deprivation or termination of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; 4. When the best interests of the minor so require. Contents of petition: 1. Jurisdictional facts; 2. Name, age and residence of the prospective ward; 3. Ground rendering the appointment necessary or convenient; 4. Death of the parents of the minor or the termination, deprivation or suspension of their parental authority; 5. Remarriage of the minor’s surviving parent; 6. Names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody; 7. Probable value, character and location of the property of the minor; 8. Name, age and residence of the person for whom letters of guardianship are prayed.  



 

The petition shall be verified and accompanied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. Opposition Who may file: 1. Any interested person; 2. The social worker ordered to make the case study report, if he finds that the petition for guardianship should be denied (Sec. 9). How: By filing a written opposition. Grounds for filing: 1. Majority of the minor; 2. Unsuitability of the person for whom letters are prayed.

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SPECIAL PROCEEDINGS

Valencia vs. Lagdameo: The remedy of vendees prejudiced by the illegal transactions of a natural guardian involving the property of the minor child lies only against the natural guardian, not however to recover ownership and possession of the properties sold but only to recover damages.

Family Court of the province or city where his property or any part thereof is situated.


c. The Guardian Order of Preference of Appointment (in default of parents or a courtapproved guardian) 1. The surviving grandparent. In case several grandparents survive, the court shall select any of them taking into account all relevant considerations.

2. The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified. 3. The actual custodian of the minor over 21 years of age, unless unfit or disqualified. 4. Any other person, who in the sound discretion of the court, would serve the best interests of the minor. 





Qualifications The court shall consider the guardian’s: 1. Moral character; 2. Physical, mental and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6. Lack of conflict of interest with the minor; 7. Ability to manage the property of the minor. Powers and Duties In general Guardian of resident minor: Care and custody of the person of his ward and the management of his property, or only the management of his property. Guardian of non-resident minor: Management of all his property within the Philippines. Specific duties 1. To pay the just debts of the ward out of: a. Personal property and the income of the real property of the ward, if the same is sufficient; b. Real property of the ward upon obtaining an order for its sale or encumbrance. 2. To settle all accounts of his ward; 3. To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; 4. To appear for and represent the ward in all actions and special proceedings, unless another

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SPECIAL PROCEEDINGS

Procedure 1. Filing of petition. 2. Court shall fix a time and place for hearing. 3. Notice Requirement Court shall cause reasonable notice to be given to: a. The persons mentioned in the petition; b. The minor if he is fourteen years of age or over. For non-resident minors, notice shall be given to the minor by publication or any other means as the court may deem proper. Court may also direct other general or special notice to be given. 4. Case Study Report – Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. 5. Hearing  Compliance with notice requirement must be shown.  The prospective ward shall be presented to the court. If the minor is non-resident, the court may dispense with his presence.  At the discretion of the court, the hearing on guardianship may be closed to the public.  The records of the case shall not be released without court approval. 6. Issuance or denial of letters of guardianship. 7. Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order.



5.

7.

8.

9.



 

Bonds of Guardians When filed: Before a guardian enters upon the execution of his trust, or letters of guardianship issue. Amount: As determined by the Court. Conditions: The guardian is: 1. To make and return to the court, within three months after the issuance of his letters of guardianship, a true and

complete inventory of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; 2. To faithfully execute the duties of his trust, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; 3. To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule 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 property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; 4. To perform all orders of the court and such other duties as may be required by law. 





Posting of new bond Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond. Requirements: 1. Due notice to interested persons; 2. No injury must result to those interested in the property. Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Reimbursement of Reasonable Expenses and Payment of Compensation



The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust.

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6.

person is appointed for that purpose; To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so; To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: a. Authority granted by the court after hearing; b. Notice to relatives of the ward, and; c. A careful investigation as to the necessity and propriety of the proposed action. To submit to the court a verified inventory of the property of the ward:  Within three months after his appointment;  Annually, and;  Whenever required upon the application of an interested person. To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition; To render to the court for its approval an accounting of the property:  One year from his appointment;  Every year thereafter, and;  As often as may be required.






The court may allow payment of compensation for his services as the court may deem just, not exceeding 10% of the net income of the ward, if any; otherwise, in such amount the court determines to be a reasonable compensation for his services.

d. Selling and Encumbering Property of the Ward 



Order for Sale or Encumbrance Contents: a. Grounds for the sale or encumbrance; b. Manner of sale (public or private); c. Time and manner of payment; d. Security, if payment deferred; e. Additional bond from guardian, if required. Duration: Not more than 1 year, unless renewed.



Investment of Proceeds and Management of Property The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.

the

Grounds When the income of a property under guardianship is insufficient to maintain and educate the ward When it is for the benefit of the ward that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property.



How: Verified petition filed by the guardian.



Order to Show Cause a. The court shall order the ward’s next of kin and all persons interested in the property to appear at a reasonable time and place and show cause why the petition should not be granted. b. At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with

e. Removal, Resignation, Termination of Guardianship

and



Removal How: Upon reasonable notice to the guardian. Grounds: The guardian: 1. Becomes insane or otherwise incapable of discharging his trust; 2. Is found to be unsuitable; 3. Wasted or mismanaged the property of the ward; 4. Failed to render an account or make a return for thirty days after it is due.



Resignation Ground: Any justifiable cause. Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the

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SPECIAL PROCEEDINGS

Embezzlement, Concealment, or Conveyance of Ward’s Properties  The court may require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance, upon complaint of:  The guardian or ward, or;  Any person having actual or prospective interest in the property of the ward.

their witnesses, and grant or deny the petition as the best interests of the ward may require.


proper accounting of the property of the ward and the court has approved the same. 

becoming thereby an easy prey for deceit and exploitation.

2. Petition Guardian



Where to file: For resident incompetents: RTC of the province or MTC of the municipality or chartered city where the incompetent resides. For non-resident incompetents: RTC of the province where the property of the incompetent or part thereof is situated. Transfer of Venue - The court taking cognizance of a guardianship proceeding may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence.



Contents 1. Jurisdictional facts; 2. Incompetency rendering the appointment necessary or convenient; 3. Names, ages, and residence of the relatives of the incompetent, and of the person having him in their care; 4. Probable value and character of his estate; 5. Name of the person for whom letters of guardianship are prayed.

1. Scope and Applicability



 Incompetents a. Persons suffering the penalty of civil interdiction; b. Hospitalized lepers; c. Prodigals; d. Deaf and dumb who are unable to read and write; e. Those who are of unsound mind, even though they have lucid intervals; f. Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property,

of

Who may file: For resident incompetents 1. Any relative, friend, or other person on behalf of the incompetent who has no parent or lawful guardian; 2. Health secretary, in favor of: a. An insane person who should be hospitalized; b. An isolated leper. For non-resident incompetents 1. Any relative or friend; 2. Anyone interested in the incompetent’s estate.

(RULES 92-98)

The Rules on Guardianship (Rules 9298, RoC) apply to guardianship over the person or property, or both, of incompetents other than a minor. The Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) governs guardianship of minors.

Appointment



C. Guardianship of Incompetents



for

The petition shall be verified. No defect in the petition or verification shall render void the issuance of letters of guardianship. 

Opposition Who may file: Any interested person. How: By filing a written opposition.

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SPECIAL PROCEEDINGS

Termination Grounds: 1. The ward has come of age; 2. The ward has died. How: 1. Court motu propio terminates guardianship; 2. Upon verified motion of any person allowed to file a petition for guardianship. The guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices.





Yangco vs. CFI: Notice to the ward’s relatives is a jurisdictional requirement.

3. The Guardian 

Considerations in the Choice of the Guardian

Francisco vs. CA (1984): The court may consider the financial situation, the physical condition and sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective appointee, as well as the probability of his being able to exercise the powers and duties of a guardian for the full period during which guardianship will be necessary. Guerrero vs. Tan: The courts should not appoint as a guardian any person who is not personally subject to their jurisdiction. Garchitorena vs. Sotelo: If the interested person is a creditor and mortgagee of the ward’s estate, he cannot be appointed guardian of the ward’s person and property.

 



Powers and Duties (Rule 96) In general 1. Guardian of resident incompetent: Care and custody of the person of his ward, and the management of his estate, or the management of the estate only 2. Guardian of non-resident incompetent: Management of all the estate of the ward within the Philippines. Specific duties 1. To pay the just debts of the ward out of: a. Personal property and the income of the real property of the ward, if the same is sufficient. b. Real property of the ward upon obtaining an order for its sale or encumbrance. 2. To settle all accounts of his ward; 3. To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; 4. To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose; 5. To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court; 6. To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: a. Authority granted by the court after hearing; b. Notice to relatives of the ward, and; c. A careful investigation as to the necessity and propriety of the proposed action. 7. To submit to the court: a. An inventory of the estate of the ward, sworn to by the guardian; i. Within three months after his appointment;

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SPECIAL PROCEEDINGS

Grounds: 1. Competency of the alleged incompetent; 2. Unsuitability of the person for whom letters are prayed. Procedure 1. Filing of petition for appointment of guardian for an incompetent. 2. Court shall fix a time and place for hearing the petition. 3. Court shall cause reasonable notice of hearing to be given to the persons mentioned in the petition residing in the province, including the incompetent himself, and may direct other general or special notice to be given. o If incompetent is a non-resident, notice shall be given to him in such manner as the court deems proper, by publication or otherwise (Rule 93, Sec. 6). 4. Hearing o The incompetent must be present, if able to attend. o Fulfilment of notice requirement must be shown. 5. Issuance of letters of appointment of a guardian. 6. The final order or judgment shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated (Rule 93, Sec. 8).




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 from them, and of the management and disposition of the same, at the time designated and such other times as the courts 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 hands, or due from him on such settlement, to the person lawfully entitled thereto; 4. To perform all orders of the court by him to be performed.

Gorostiaga vs. Sarte: Jurisdiction over an incompetent’s person cannot be had unless a guardian was appointed upon whom summons and notice of the proceedings may be served.

Liability for breach: In case of the breach of a condition of the bond, the guardian may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

Zafra-Sarte vs. CA (1970): The guardian’s appointment is good until set aside. Despite an appeal, the guardian can do what is necessary (under court’s direction) for the protection of the ward and his estate.



Bonds of Guardians (Rule 94) When filed: Before a guardian enters upon the execution of his trust, or letters of guardianship issue. Where filed: In the office of the Clerk of Court. Amount: As determined by the Court. Conditions - The guardian is: 1. To make and return to the court, within 3 months, a true and complete inventory of all the real and personal estate of his ward which shall come to his 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 for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

Posting of new bond o Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability. Requirements: 1. Due notice to interested persons; 2. No injury must result to those interested in the property.

Guerrero vs. Teran: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that the guardian was removed does not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. Zubaldia vs. Hermanos: If the guardian delegates his duties to another, he shall be responsible for the other’s actions in the premises and for any resulting loss. Exception: If the guardian shows that he used reasonable care and discretion in the manner of selecting those whom he employs. Doronilla vs. Lopez: A guardian may be imprisoned for failure to render his account and to deliver the estate upon order to his successor

 

Reimbursement of Reasonable Expenses and Payment of Consideration (Rule 96, Sec. 8) The guardian, other than a parent, shall be allowed the amount of his reasonable

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SPECIAL PROCEEDINGS

1. The estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. ii. Annually after his appointment. and; iii. Whenever required upon the application of an interested person. a. An account of the estate of the ward, sworn to by the guardian: i. Annually after his appointment, and; ii. Whenever required upon the application of an interested person. 8. To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition.





expenses incurred in the execution of his trust. The guardian, other than a parent, shall also be allowed such compensation for his services as the court deems just, not exceeding 15% of the net income of the ward.

Ramos vs. PNB (1957): Extra allowance may be made in each case as the importance and difficulty of the management of the estate may require.



4. Selling and Encumbering Property of the Ward (Rule 95) 

 

the

Grounds a. When the income of a property under guardianship is insufficient to maintain the ward and his family; b. When it is for the benefit of the ward that his real estate or some part thereof be sold, mortgaged or otherwise encumbered, and the proceeds thereof put out at an interest, or invested in some productive security, or in the improvement or security of other real estate. How: Verified petition filed by the guardian to the Court which appointed him. Order to Show Cause The court shall order the ward’s next of kin and all persons interested in the estate to appear at a reasonable time and place and show cause why the petition should not be granted.



Investment of proceeds and Management of Property The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real estate or otherwise, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may warrant.

Inton vs. Quintana: The grounds for the sale and encumbrance of ward’s property are exclusive. No order will be issued for another purpose not found in the Rules. Sale of the ward’s realty without court order is void. Singco vs. Longa: Notice to the next of kin is a jurisdictional requirement which may not be dispensed with. Lopez vs. Teodoro (1950): The next of kin are those relatives whose relationships are such as to entitle them to shares in the estate as distributes. Appeal is the proper remedy against a court authorizing the sale of the ward’s property. Margate vs. Rabacal (1963): Generally, in order that the sale of the ward’s property be valid, it is essential that the sale first be confirmed by the Court. However, where the authority to sell did not impose the condition that the deed of sale executed by the guardian should be approved by

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SPECIAL PROCEEDINGS

Embezzlement, Concealment or Conveyance of Ward’s Properties (Rule 96, Sec. 6) The court may require any person suspected of having embezzled, concealed, or conveyed away any money, goods or interest, or a written instrument belonging to the ward or his estate to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance, upon complaint of: a. The guardian or ward, or; b. Any person having actual or prospective interest in the property of the ward as creditor, heir, or otherwise.



At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require. Order for Sale or Encumbrance Contents f. Grounds for the sale or encumbrance; g. Manner of sale (public or private); h. Time and manner of payment; i. Security, if payment deferred; j. Additional bond from guardian, if required. Duration of Effect: Not more than 1 year, unless renewed. The guardian cannot acquire by purchase, even at a public or judicial auction, the property of his ward (Art. 1491, CC).


the court, the approval of the sale by the court would be merely pro forma, where the sale was already fait accompli and within the authority given by the court.




Soriano vs. Latono: Confirmation may not be necessary where the court’s order expressly authorized the guardian to execute and deliver to the purchaser definitely named a deed of conveyance to a parcel of land specifically described at a price already fixed, and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and the buyer, and the sale had been made without departure from the terms of the order.

Newly-acquired or Discovered Properties (Rule 96, Sec. 7) Whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within 3 months after such discovery, succession, or acquisition

Crisostomo vs. Endencia: The court which appointed the guardian is also the court competent to decide the petition for restoration of capacity. In Re Guardianship of the Incompetent Jose De Encaustic: The required notice of hearing upon the ward and guardian is not intended as a personal service. The manner in which the court procured service of the notice is of no importance. It is sufficient that the notice was given.



Grounds for Removal of Guardian a. When the guardian becomes insane; b. When the guardian becomes incapable of discharging his trust or unsuitable; c. When the guardian has wasted or mismanaged the estate; d. When the guardian failed for 30 days after it is due to render an account or make a return.



Ground for Resignation of Guardian: When it appears proper to allow it. Upon the guardian’s resignation or removal the court may appoint another in his place.

5. Termination of Guardianship (Rule 97) 

Grounds for Termination of Guardianship a. Death of the guardian or the ward; b. Marriage or voluntary emancipation; o Note: Voluntary emancipation is rendered obsolete by RA 6809, making emancipation attainable only by reaching the age of majority. c. Adjudgment of competency.

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SPECIAL PROCEEDINGS

There being a presumption that the sale of the ward’s estate is valid, the same cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale should be filed



of

Who may file: o The person declared incompetent; o His guardian; o His relative; o His friend; How: Petition verified by oath and stating that the person is competent. Procedure: o Filing of petition. o Court shall fix a time for hearing. o Court shall cause reasonable notice of hearing to be given to the guardian of the person declared incompetent, and to the ward. o Trial. The guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. o Adjudgment of competency.

The cancellation of the authority of the guardian to sell the property of the ward did not and could not affect the rights of the buyer, where at the time that the order cancelling the authority to sell was entered, the guardian had already acted in accordance with the authority and sold the property. The authority has already been exhausted and there was nothing to cancel.

Mendoza vs. Labrador: If the authority to sell was obtained under suspicious circumstances indicative of fraud or collusion, the guardian’s sale may subsequently be annulled by the court.

Petition for Adjudgment Competency (Rule 97, Sec. 1)





Service of Judgment Final orders or judgments terminating or replacing a guardian shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part of it is situated.

Olarte vs. Enriquez (1960): An order removing a guardian is an order constituting a final determination of his rights. Hence, the guardian may appeal.

II. ADOPTION A. DOMESTIC ADOPTION 1. SCOPE & APPLICABILITY 2. THE ADOPTER & THE ADOPTEE 3. PETITION FOR ADOPTION 4. RESCISSION OF ADOPTION OF THE ADOPTEE B. INTER-COUNTRY ADOPTION (RA 8043) 1. SCOPE & APPLICABILITY 2. INTER-COUNTRY ADOPTION AS THE LAST RESORT 3. PETITION FOR ADOPTION



Adoption –

A juridical act which creates between two persons a relation similar to that which results from filiation (Prasnick vs. Republic).



Lahum vs. Sibulo (2003): Adoption is a privilege governed by the state’s determination of what is for the best welfare of the child.

A. Domestic Adoption 1. Scope and Applicability 

RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children.

2. The Adopter and the Adoptee 

Qualified Adopters a. Any Filipino citizen;  Of legal age;  In possession of full civil capacity and legal rights;  Of good moral character;  Has not been convicted of any crime involving moral turpitude;  At least 16 years older than the adoptee;  This requirement may be waived when the adopter is the biological parent of the



  

The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: a. A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; b. One who seeks to adopt the legitimate child of his Filipino spouse; c. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities Joint Adoption of Spouses General Rule: Husband and wife shall jointly adopt. Exceptions: a. If one spouse seeks to adopt the legitimate child of one spouse by the other spouse;

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adoptee or is the spouse of the adoptee’s parent.  Emotionally and psychologically capable of caring for children, and;  Is in a position to support and care for his children in keeping with the means of the family. b. Any alien;  Possessing the same qualifications as above-stated for Filipino nationals;  His country has diplomatic relations with the Republic of the Philippines;  Has been living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered;  Has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and;  His government allows the adoptee to enter his country as his adopted child.








Qualified Adoptees a. Any person below 18 years of age who has been voluntarily committed to the DSWD under Articles 154, 155 and 156 of PD No. 603 or judicially declared available for adoption; b. The legitimate child of one spouse, by the other spouse; c. An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; d. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; e. A child whose adoption has been previously rescinded; f. A child whose biological or adoptive parents have died, provided that no proceedings shall be initiated within 6 months from the time of death of said parents;. g. A child not otherwise disqualified by law or these rules. Child – one who is not more than 18 years old at the time of the filing of the petition for adoption. Child legally available for adoption voluntarily or involuntarily committed to DSWD or to a duly licensed and accredited child-placing or childcaring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter/s. [Note (though might not be a part of the Bar): RA 9523, signed into law as of March 2009, amended the Domestic and Inter-country Adoption act to the effect that the authority to declare a child abandoned and free for adoption has been transferred to the DSWD



from the courts. Only a DSWD certification is required to declare the child legally available for adoption.] Voluntarily committed child – one whose parents knowingly and willingly relinquish parental authority over him in favor of the DWSD.

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Involuntarily committed child – one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to: o Abandonment; o Substantial, continuous or repeated neglect and abuse; o Incompetence to discharge parental responsibilities.

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Foundling Deserted or abandoned infant or child whose parents, guardian or relatives are unknown. A child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a “foundling.”

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Abandoned child One who has no proper parental care or guardianship. One whose parents have deserted him for a period of at least 6 continuous months and has been judicially declared as such.

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Dependent child One who is without a parent, guardian or custodian. One whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support.

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Neglected child – one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian.  Physical neglect - when the child is malnourished, ill-clad and without proper shelter.  Emotional neglect - when a child is raped, seduced, maltreated, exploited, overworked or made to

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b. If one spouse seeks to adopt his own illegitimate child, provided that the other spouse has signified his consent; c. If the spouses are legally separated from each other. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.



work under conditions not conducive to good health or made to beg in the streets or public places, or placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices.

3. Petition for Adoption Where to file: Family Court of the province or city where the prospective adoptive parents reside.



Contents Allegations common to all petitions a. First name, surname or names, age and residence of the adoptee, as shown by his record of birth, baptismal or foundling certificate and school records; b. That the adoptee is not disqualified by law to be adopted; c. Probable value and character of the estate of the adoptee; d. First name, surname or names by which the adoptee is to be known and registered in the Civil Registry; e. Certification of non-forum shopping. o The petition shall be verified. At the heading of the initiatory pleading, whether the petition contains: a. Application for change of name; b. Rectification of simulated birth; c. Voluntary or involuntary commitment of children; d. Declaration of child as abandoned, dependent or neglected. Additional allegations a. If the adopter is a Filipino citizen:  Jurisdictional facts;  Adopter’s qualifications;  That the adopter has undergone pre-adoption services. b. If the adopter is an alien:  Jurisdictional facts;  Alien adopter’s qualifications;  That the adopter has undergone pre-adoption services. c. If the adopter is the legal guardian of the adoptee, that the

guardianship had been terminated and the guardian had cleared his financial accountabilities. d. If the adoptee is a foundling:  The entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known;  Sex, name and citizenship of adoptive mother and father, and the date and place of their marriage. e. If the petition prays for a change of name:  The cause or reason for the change of name;  The registered name of the child;  Aliases or other names by which the child has been known;  Full name by which the child is to be known. f. If petition seeks rectification of simulated birth:  That petitioner is applying for rectification of a simulated birth;  That the simulation of birth was made prior to the date of effectivity of RA 8552 (August 22, 2002) and the application for rectification of the birth registration and the petition for adoption were filed within 5 years from said date;  That the petitioner made the simulation of birth for the best interests of the adoptee;  That the adoptee has been consistently considered and treated by petitioner as his own child. g. If the adoptee is a foundling, an abandoned, dependent or neglected child:  Facts showing that the child is a foundling, abandoned, dependent or neglected;  Names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any;  Name of the duly licensed child-placement agency or

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

individual under whose care the child is in custody; That the DSWD, childplacement or child-caring agency is authorized to give its consent.

Pre-adoption Services - Psycho-social services provided by professionallytrained social workers of DSWD, the social services units of local governments, private and government health facilities, Family Courts, licensed and accredited child-caring and childplacement agencies and other individuals or entities involved in adoption as authorized by the DSWD.

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Annexes to the Petition 1. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; 2. Affidavit of consent of: a. The adoptee, if 10 years of age or over; b. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; c. The legitimate and adopted children of the adopter and of the adoptee, if any, who are 10 years of age or over; d. The illegitimate children of the adopter living with him who are 10 years of age or over; e. The spouse, if any, of the adopter or adoptee. 3. Child study report on the adoptee and his biological parents; 4. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child, unless exempted; 5. Home study report on the adopters;  If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board (ICAB).

6. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. 

Consent Requirement

Cang vs. CA (1998): General Rule: The written consent of the natural parent is indispensable for the validity of the decree of adoption. Exception: The requirement can be dispensed with if the parent:  Has abandoned the child;  Is insane or hopelessly intemperate. Abandonment means neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment.

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Procedure 1. Filing of petition for adoption. 2. Order of Hearing by the Court Issued if the petition and attachments are sufficient in form and substance Contents: a. 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; b. Purpose of the petition; c. Complete name which the adoptee will use if the petition is granted; d. Date and place of hearing which shall be set within 6 months from the date of the issuance of the order; e. A directive for the publication of a copy of the order before the date of hearing at least once a week for 3 successive weeks in a newspaper of general circulation in the province or city where the court is situated; o In case of application for change of name, the date set for hearing shall not be within 4 months after the last publication of the notice or within 30 days prior to an election. o The newspaper shall be selected by raffle under the supervision of the Executive Judge. Page 193 of 370

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f.

3. Child and home study reports by the social worker The social worker shall: a. Verify with the Civil Registry the real identity and registered name of the adoptee; b. If the birth of the adoptee was not registered with the Civil Registry, register the adoptee and secure a certificate of foundling or late registration, as the case may be; c. Establish that the child is legally available for adoption and the supporting documents are valid and authentic; d. Establish that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child; e. If there are grounds to deny the petition, make the proper recommendation to the court, furnishing a copy thereof to the petitioner. o If the adopter is an alien, the home study report must show:

 

His legal capacity to adopt; That his government allows the adoptee to enter his country as his adopted child.

4. Hearing Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with. The petitioner and the adoptee must personally appear and the former must testify before the court on the date set for hearing. The court shall: a. Verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; b. Ensure that all measures to strengthen the family have been exhausted; c. Ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. 5. Supervised trial custody Trial custody given the adopter before issuance of the decree of adoption for a period of at least 6 months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. Monitored by the social worker of the court, the DSWD, or the social service of the local government unit, or the childplacement or child-caring agency which submitted and prepared the case studies. Temporary parental authority is vested in the adopter. o The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds that the same shall be for the best interests of the adoptee. o General Rule: An alien adopter must complete the 6-month trial custody.

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A directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the DSWD 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 filing; g. 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; h. At the discretion of the court, copies of the order of hearing shall be furnished the OSG through the provincial or city prosecutor, the DSWD and the biological parents of the adoptee, if known. o If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory.




Exceptions: a. A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; b. One who seeks to adopt the legitimate child of his Filipino spouse; c. One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latter’s relative within the 4th degree of consanguinity or affinity. If the child is below 7 years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the DSWD, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. The social worker shall submit to the court a report on the result of the trial custody within 2 weeks after its termination.

In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. d. An order to the Civil Registrar of the place where the adoptee was registered to: o Annotate on the adoptee’s original certificate of birth the decree of adoption within 30 days from receipt of the certificate of finality; o Issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show, among others, the following: a. Registry number; b. Date of registration; c. Name of child; d. Sex; e. Date of birth; f. Place of birth; g. Name; h. Citizenship of adoptive mother and father; i. Date and place of their marriage. o Seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption; o Submit to the court issuing the decree of adoption proof of compliance within 30 days from receipt of the decree; o If the adoptee is a foundling, annotate the decree of adoption on the foundling certificate and prepare a new birth certificate.

o

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Book of Adoptions The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with the court’s order, and all incidents arising after the issuance of the decree.

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Confidentiality of Adoption Proceedings All hearings in adoption cases, after compliance with the jurisdictional

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6. Issuance of decree of adoption If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee. Effectivity: As of the date the original petition was filed even if the petitioners die before its issuance Contents: a. Name by which the child is to be known and registered; b. An order to the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary period within which to appeal; c. An order to the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within 30 days from receipt of the certificate of finality;

o





requirements shall be confidential and shall not be open to the public. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.

of

Adoption

of

the



Who may file: Adoptee who is over 18 years of age; If the adoptee is a minor, with the assistance of the DSWD; If the adoptee is over 18 years of age but incapacitated, by his guardian or counsel.

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Grounds: Committed by the adopter 1. Repeated physical and verbal maltreatment despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; 4. Abandonment or failure to comply with parental obligations. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

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Where to file: Family Court of the city or province where the adoptee resides.

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When to file: 1. Within 5 years after reaching age of majority; 2. If he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency.

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Procedure: 1. Filing of petition to rescind the adoption. 2. Court shall issue an order requiring the adverse party to answer the petition within 15 days from receipt of a copy thereof. 3. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct.

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4. Rescission Adoptee

4. Judgment. o If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires. o The court shall: a. Order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of DSWD be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other be extinguished; b. Declare that successional rights revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected; c. Order the adoptee to use the name stated in his original birth or foundling certificate; d. Order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate. 5. Service of judgment o A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of the Court which rendered the decision shall be served by the petitioner upon the Civil Registrar concerned within 30 days from receipt of the certificate of finality. o The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the Clerk of Court within 30 days from receipt of the decree.



B. Inter-Country Adoption (RA 8043) 1. Scope and Applicability 

RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: 1. Foreign nationals, and; 2. Filipino citizens permanently residing abroad.

2. Inter-country Adoption as the Last Resort 

Objectives of Inter-country Adoption 1. To consider inter-country adoption as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines; 2. Ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption; 3. Take all measures to ensure that the placement arising from it does not result in improper financial gain for those involved.

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The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that inter-country adoption is in the best interest of the child (Sec. 7, RA 8043).

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Where to file: a. Family Court having jurisdiction over the place where the child resides or may be found; b. Directly with the ICAB; c. To the ICAB, through an intermediate agency, whether governmental or an accredited agency, in the country of the prospective adopters.

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Contents of petition a. The adopter’s age and the age of the child to be adopted, showing that he is at least 27 years of age and at least 16 years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent; b. If married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse; c. That he has the capacity to act and assume all rights and responsibilities of parental authority

3. Petition for Adoption    

Who may be adopted: Only a child legally available for domestic adoption. Child - A person below 15 years of age unless sooner emancipated by law. Legally-free child - A child who has been voluntarily or involuntarily committed to the DSWD. Who may adopt: An alien or a Filipino citizen permanently residing abroad if he: a. Is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; b. If married, his spouse must jointly file for the adoption;

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c. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counselling from an accredited counselor in his country; d. Has not been convicted of a crime involving moral turpitude; e. Is eligible to adopt under his national law; f. Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN Convention on the Rights of the Child, and to abide by the rules and regulations; h. Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his national laws; i. Possesses all the qualifications and none of the disqualifications provided in the applicable Philippine laws.


d. e. f.

h.

i.

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Annexes to the petition (written and officially translated in English) a. Birth certificate of petitioner; b. Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c. Sworn statement of consent of petitioner’s biological or adopted children above 10 years of age; d. Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e. Income tax returns or any authentic document showing the current financial capability of the petitioner; f. Police clearance of petitioner issued within 6 months before the filing of the petition; g. Character reference from the local church/minister, the petitioner’s employer and a member of the immediate community who have known the petitioner for at least 5 years; h. Full body postcard-size pictures of the petitioner and his immediate family taken at least 6 months before the filing of the petition.



III.

Procedure (when petition filed before the Family Court) a. Filing of petition. b. Court shall determine whether or not petition is sufficient in form and substance and a proper case for inter-country adoption. c. Transmit the petition to the ICAB for appropriate action.

RULES ON CUSTODY OF CHILDREN (RULE 99, SECS. 6 AND 7)

A.

PROCEEDINGS AS TO THE CHILD WHOSE PARENTS ARE SEPARATED (RULE 99, SEC. 6) B. PROCEEDINGS AS TO VAGRANT OR ABUSED CHILD (RULE 99, SEC. 7)

A. Proceedings as to the Child Whose Parents Are Separated (RULE 99, SEC. 6) 



When applicable: When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a RTC by petition or as an incident to any other proceeding. The court, upon hearing the pertinent testimony, shall award the care, custody, and control of each such child as will be for its best interest. If the child is over 10 years of age, the court shall permit him to choose which parent it prefers to live, unless the parent so chosen be unfit to take charge of the child by the reason of: 1. Moral depravity; 2. Habitual drunkenness; 3. Incapacity; 4. Poverty. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons to do otherwise. If both parents are improper persons to have the care, custody, and control of the child, the court may either: 1. Designate to take charge of the child: a. The paternal or maternal grandparent of the child; b. His oldest brother or sister;

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g.

under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country; That he has not been convicted of a crime involving moral turpitude; That he is eligible to adopt under his national law; That he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted; That he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the U N Convention on the Rights of the Child, and to abide by the rules and regulations’ That he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; That he possesses all the qualifications and none of the disqualifications provided in the applicable Philippine laws.



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

IV. CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) 

Applicability Applies to petitions for custody of minors and writs of habeas corpus in relation thereto. Rules of Court shall apply suppletorily.



Petition for Rightful Custody Verified petition for the rightful custody of a minor may be filed by any person claiming such right. Party against whom it may be filed shall be designated as the respondent. Filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.



Contents: a. The personal circumstances of the petitioner and of the respondent; b. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; c. The material operative facts constituting deprivation of custody; d. Such other matters which are relevant to the custody of the minor Verified and accompanied with a certificate against forum shopping signed by the petitioner personally. If court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent.



Answer to the Petition Motion to dismiss the petition is not allowed. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. Exception: On the ground of lack of jurisdiction over the subject matter or over the parties. Personally verified by him filed within 5 days after service of summons. Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pre-trial.

B. Proceedings as to Vagrant or Abused Child (RULE 99, SEC. 7) 



When applicable: When the parents of any minor child: a. Are dead; b. Have abandoned the child by reason of long absence or legal or physical disability; c. Cannot support the child through vagrancy, negligence, or misconduct, or neglect; d. Refuse to support it; e. Treat it with excessive harshness or give it corrupting orders, counsels, or examples, or; f. Cause or allow it to engage in begging or to commit offenses against the law. How: Upon petition filed by some reputable resident of the province. RTC may issue an order requiring such parents to show cause at a time and place fixed in the order why the child should not be taken from its parents. o If the parents are dead or cannot be found, the RTC shall require the fiscal of the province to show cause. If upon the hearing it appears that the allegations of the petition are true, and it is for the best interest of the child, the court may make an order taking the child from its parents, if living, and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for it by such asylum, children's home, society, or person.

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c. Some reputable and discreet person. 2. Commit the child to any suitable asylum, children's home, or benevolent society. The court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The court may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody over him. Either parent may appeal from the order of the court.





If the issue is not settled through mediation, the court shall proceed with the pre-trial. After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor to: a. Both parents jointly; b. Either parent; c. The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment; d. The eldest brother or sister over 21 years of age; e. The actual custodian of the minor over 21 years of age; f. Any other person or institution the court may deem suitable. o



Interim Reliefs 1. Temporary visitation rights court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. Unless the court finds said parent or parents unfit or disqualified. The temporary custodian shall give the court and non custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days 2. Hold Departure Order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending. Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission. The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance. The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing. Page 200 of 370

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Mandatory pre-trial Notice - 15 days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: a. Fixing a date for the pre-trial conference; b. Directing the parties to file and serve their respective pre-trial briefs; c. Requiring the respondent to present the minor before the court. o The notice of its order shall be served separately on both the parties and their respective counsels. Pre-trial brief contains the following: a. A statement of the willingness of the parties to enter indicating its terms; b. A concise statement of their respective claims; c. Admitted facts and proposed stipulations of facts; d. The disputed factual and legal issues; e. All the evidence to be presented; f. The number and names of the witnesses and their respective affidavits; g. Such other matters as the court may require to be included. o Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial. o If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed. o Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the nonappearance of the petitioner. If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. o Court shall then render judgment on the basis of the pleadings and the evidence thus presented. At the pre-trial, the parties may agree on the custody of the minor. o If the parties fail to agree, the court may refer the matter to a mediator who shall have 5 days to effect an agreement between the parties.





Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship.

The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. 

 



 



Appeal Appeal from the decision shall be allowed. o Unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties. Petition for Writ of Habeas Corpus A verified petition for a writ of habeas corpus involving custody of minors filed with the Family Court.  The writ shall be enforceable within the judicial region the Family Court belongs. However, the petition may be filed with a regular court in the absence of the presiding judge of the Family Court provided that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. Petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may be filed with the SC, CA, or with any of its members and shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors.

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3. Protection Order (PO)- court may issue a PO requiring any person: a. To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place; b. To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded; c. To refrain from acts or omission that create an unreasonable risk to minor; d. To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods; e. To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; f. To comply with such other orders as are necessary for the protection of the minor.



Rights involved

Situations applicable Party authorized to file

Contents of the petition

Party for whose relief it is intended or by some person in his behalf May or may not be an officer 1. RTC or any judge thereof 2. CA or any member thereof in instances authorized by law 3. SC or any member thereof 4. Special jurisdiction given to first level courts in the absence of RTC judges in a province or city (SECTION 35, BP 129) 5. In aid of appellate jurisdiction of the Sandiganbayan ( RA 8249 further expanding its jurisdiction)

Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (PDIC) (a) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.

A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The verified petition shall allege the following: (PRMO) (a) The personal circumstances of the petitioner and of the respondent; (b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; (c) The material operative facts constituting deprivation of custody; and (d) Such other matters which are relevant to the custody of the minor. The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.

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Respondents Before which court or judicial authority filed


COMPARATIVE TABLE ON HABEAS CORPUS HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR MINORS (A.M. 03-04-04) Petition for the rightful custody of  Right to liberty a minor  Rightful custody of the aggrieved party Actual violation of the aggrieved Deprivation of rightful custody party’s right


V. COMMITMENT OF (A.M. NO. 02-1-19-SC)


CHILDREN

A. INVOLUNTARY COMMITMENT OF A DEPENDENT, ABANDONED, OR NEGLECTED CHILD B. VOLUNTARY COMMITMENT OF A DEPENDENT, ABANDONED, OR NEGLECTED CHILD C. COMMITMENT OF A DISABLED CHILD

4. The name, address and written consent of DSWD or duly licensed childplacement or child-caring agency or individual to whose care the commitment of the child is sought to be entrusted. 

A. Involuntary Commitment of a Dependent, Abandoned, or Neglected Child



 1.

2.

1. 2.

Guardian Ad Litem of Child When appointed If neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice; If the court finds the parents or the guardian of the child incompetent to protect the best interests of the child. In making the appointment, the court shall consider: The background of the guardian ad litem, and; His familiarity with the judicial process, social service programs and child development. o A member of the Philippine Bar may be appointed guardian ad litem.

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Child - a person below 18 years of age. Dependent child - one who is without a parent, guardian or custodian, or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody, and is dependent upon the public for support.  Abandoned child - one who has no proper parental care or guardianship, or whose parents or guardian has deserted him for a period of at least 6 continuous months.  Neglected child - one whose basic needs have been deliberately unattended to or inadequately attended to, physically or emotionally, by his parents or guardian.  Who may file: 1. The Secretary of DSWD; 2. His authorized representative; 3. Any duly licensed child-placement or child-caring agency having knowledge of a child who appears to be dependent, abandoned or neglected.  Where to file: Family Court of the province or city in which the parent or guardian resides or where the child is found.  Contents of Verified Petition 1. The names of the parents or guardian and their place of residence; If the child's parents are unknown, petitioner must allege that diligent efforts have been exerted to locate them. If said parents are deceased, petitioner shall attach a certified true copy of their death certificate 2. The facts showing that the child is dependent, abandoned, or neglected; 3. The facts showing who has custody of the child at the time of the filing of the petition;  

Summons If the court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to immediately issue summons which shall be served together with a copy of the petition and a notice of hearing, not less than 5 days before the date of the hearing, upon: 1. The parents or guardian of the child; 2. Office of the public prosecutor.  The office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the Family Court concerned. If it appears from the petition that both parents of the child are dead or that neither parent can be found in the province or city where the court is located and the child has no guardian residing therein, summons may not be issued and the court shall thereupon appoint a guardian ad litem and proceed with the hearing of the case with due notice to the provincial or city prosecutor.




Case Study Report The Court shall direct the social worker to submit, before the hearing, a case study report of the child to aid it in evaluating whether said child should be committed to the care of DSWD or any duly licensed childplacement or child-caring agency or individual. The report shall bear the signature of the social worker on every page. Appointment of Counsel The court, upon request of the child capable of forming his own views or upon request of his guardian ad litem, shall appoint a lawyer to represent him in the proceedings.



Hearing The provincial or city prosecutor shall: o Appear for the State; o Ascertain if there has been due notice to all parties concerned and that there is justification for the declaration of dependency, abandonment or neglect. The court shall: o Direct the person or agency which has custody of the child to bring the latter to the court on the date of the hearing of the petition; o Ascertain the facts and determine whether the child is dependent, abandoned, or neglected, and if so, the-cause and circumstances of such condition.



Judgment. If, after the hearing, the court shall find the child to be dependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of DSWD or any duly licensed child-placement or child-caring agency or individual until he reaches the age of 18. If the child is committed to DSWD, it shall notify the court within 30 days from the order of commitment, the name and address of the duly licensed and accredited childplacement or child-caring agency or individual where the child shall be placed. The judgment shall likewise make proper provisions for the custody of

the property or money belonging to the committed child. If the court finds that the abandonment or neglect of the child may be remedied, the child may be allowed to stay in his own home under the care and control of his parents or guardian, subject to supervision and direction of DSWD.  





Visitation or Inspection Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be subject to visitation or inspection by a representative of the court or of the DSWD, as the case may be or of both, to determine whether the welfare and interests of the child are being served. Report of Person or Institution. Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by judicial order may at any time be required by the court to submit a report, containing all necessary information for determining whether the welfare of the child is being served. Temporary Custody of Child. The duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person, upon the latter's request, for a period not exceeding 1 month at a time. The court may order the social worker to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. The period of temporary custody of the child may be extended by the court for a period not exceeding 1 month at a time upon motion of the duly licensed child-placement or childcaring agency or individual to which the child has been committed. The court, mote propriety, or upon request of the child assisted by his guardian ad litem, or at the instance of the agency or person to whom the child was committed, after due notice and hearing, shall

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 




discontinue the temporary custody of the child if it appears that he is not being given proper care. After 1 month from the date temporary custody of the child was given to another suitable person, the agency or individual shall submit to the court a verified report on whether the temporary custody of the child has promoted his best interests. 



Removal of Custody A motion to remove custody of a child may be filed by an authorized representative of the DSWD with knowledge of the facts against a child-placement or child-caring agency or individual to whose custody a child has been committed by the court on the ground of neglect of such child. Neglect Physical neglect occurs when the child is malnourished, ill-clad and without proper shelter. Emotional neglect occurs when a child is raped, seduced, mal-treated, exploited, overworked or made to work under conditions not conducive to good health; made to beg in the streets or public places, or when placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices. The court shall set the motion for hearing with notice to the public prosecutor and the court-designated social worker.

Restoration of Parental Authority After Involuntary Commitment 

Who may file petition; The parents or guardian of a child committed to the care of a person, agency or institution by judicial order.



Where and how filed: By a verified motion for the restoration of his rights over the child with the court which granted the involuntary commitment.



Ground: The parent or guardian is now able to take proper care and custody of said child, provided that the child has not yet been adopted.



Notice of Hearing. The court shall: o Fix the time and date for the hearing of the motion, which shall not be earlier than 30 days nor later than 60 days from the date of the filing of said motion; o Cause notice of the hearing to be sent at least 5 days before the date of hearing to: 1. The person, agency or institution to which the child has been committed; 2. The public prosecutor; 3. The court-designated social worker.



Hearing Any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court motu proprio.

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

Change of Custody If the child is committed to the DSWD, it shall have the authority to change the custody of a child it had placed with any duly licensed childplacement or child-caring agency or individual if it appears that such change is for the best interests of the child. The DSWD shall notify the court of any change in custody of the child. When conflicting interests arise among child-placement or child-caring agencies, the court which granted the involuntary commitment of the child, upon motion of the DSWD or any of the agencies concerned, shall order the change of commitment of the child.

If the court finds after hearing that the allegations of the motion have been established and that it is for the best interests and welfare of the child: The court shall issue an order removing him from the custody of the person or agency and committing him to the custody of another duly licensed child-placement or child-caring agency or individual. The court may suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense.






Resolution If it is found that the cause for the commitment of the child no longer exists and that the movant is already able to take proper care and custody of the child. Effects: Terminates the parental authority of the person, agency or institution to whom the child was committed by judicial order; Restores parental authority to the movant.





The parent or guardian of a dependent, abandoned or neglected child may voluntarily commit him to the DSWD or any duly licensed child-placement or child-caring agency or individual. No child shall be committed unless he is surrendered in writing by his parents or guardian stating such voluntary commitment and specifically naming the office, agency, or individual to whose custody the child is to be committed. Such written instrument should be notarized and signed in the presence of an authorized representative of the DSWD after counselling and other services have been made available to encourage the child's parents to keep the child.

Verified Petition for Removal of Custody Who may file 1. The parents or guardian who voluntarily committed the child; 2. In the absence or failure of the parents or guardian, any person with knowledge of the facts. Grounds 1. Neglect of the child; 2. Voluntary commitment of the child was unjustified. Venue: Family Court of the province or city where: 1. The child-placement or child-caring agency to which the child has been voluntarily committed is located ; 2. The child may be found.

1. Name and address of the childplacement or child-caring agency or individual to whose custody the child has been voluntarily committed; 2. Facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was unjustified, that the parents of the child are actually capable of taking care and custody of the child; 3. Name, address and written consent of the duly licensed child-placement or child-caring agency or individual to whose care the child may be transferred; 4. Facts showing that petitioner has exhausted the administrative remedies available to him. 



Notice of Hearing If the petition is sufficient in form and substance, the court shall set the same for hearing with notice to: 1. DSWD; 2. The public prosecutor; 3. The court-designated social worker; 4. The agency or individual to whom the child has been committed; 5. In appropriate cases, the parents of the child. Judgment If after hearing the court finds that the allegations of the petition have been established and that it is for the best interests and welfare of the child, it shall issue an order: Removing the child from the custody of the person or agency concerned; Committing him to the custody of another duly licensed childplacement or child-caring agency or individual; If proper, suspending or revoking the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense.

Restoration of Parental Authority After Voluntary Commitment  The restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the DSWD, Provided that the petition for restoration is filed within 6 months from the date of voluntary commitment.

Contents of Verified Petition

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B. Voluntary Commitment of a Dependent, Abandoned, or Neglected Child





In case the DSWD refuses to grant legal custody and parental authority to the parent or guardian over the child who has been voluntarily committed to an agency or individual, the parent or guardian may file a petition in court for restoration of parental authority (as in involuntary commitment).

C. Commitment of a Disabled Child 

Mentally retarded child - one who is: 1. Socially incompetent, that is, socially inadequate, occupationally incompetent and unable to manage his own affairs; 2. Mentally subnormal; 3. Intellectually retarded from birth or early age; 4. Retarded at maturity; 5. Mentally deficient as a result of constitutional origin through heredity or diseases; 6. Essentially incurable. Physically handicapped child – one who is crippled, deaf-mute, blind, or otherwise suffers from a defect which restricts his means of action or communication with others. Emotionally disturbed child - one who, although not afflicted with insanity or mental defect, is unable to maintain normal social relations with others and the community in general due to emotional problems or complexes.



Venue: Family Court of the place where: 1. The parent or guardian resides, or; 2. The child is found. Contents of Verified Petition 1. The facts showing that the child appears to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs institutional care; 2. The name of the parents and their residence, if known, or if the child has no living parent, the name and residence of the guardian; 3. The fact that the parents or guardian or any duly licensed disabled childplacement or child-caring agency has opposed the commitment of such child; 4. The name and written conformity of the institution where the child is to be committed; 5. An estimate of the costs and other expenses of maintaining the child in the institution. The verified petition shall be sufficient if based upon the personal knowledge of the petitioner.   

Mentally ill child - one with any behavioral disorder, whether functional or organic, which is of such a degree of severity as to require professional help or hospitalization. 

Who may file and when: Where a child appears to be mentally retarded physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs institutional care but his parents or guardians are opposed thereto, by: 1. The DSWD;

2. Any duly licensed child-placement or child-caring agency or individual. In case no immediate placement can be arranged for the disabled child when his welfare and interests are at stake, by the parents or guardian of the child.



Order of Hearing If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix the date of the hearing A copy of such order shall be served on: 1. The child alleged to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions; 2. The person having charge of him or any of his relatives residing in the province or city as the court may deem proper. The order shall also direct the sheriff or any other officer of the court to produce, if necessary, the alleged disabled child on the date of the hearing.

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Disabled child – includes mentally retarded, physically handicapped, emotionally disturbed and mentally ill children, children with cerebral palsy and those with similar afflictions.



Discharge of Judicially Committed Disabled Child  Upon motion of the parent, guardian or institution to which the child has been judicially committed.  If it is established and certified by the DSWD that: 1. He is no longer a danger to himself and the community; 2. He has been sufficiently rehabilitated from his physical handicap or if of working age, is already fit to engage in gainful occupation; 3. He has been sufficiently relieved of his psychological, mental and emotional problems and is ready to assume normal social relations.

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Hearing and Judgment  The court shall: 1. Order his commitment to the proper institution for disabled children; The expense of maintaining a disabled child in the institution to which he has been committed shall be borne primarily by the parents or guardian and secondarily, by such disabled child, if he has property of his own. In all cases where the expenses for the maintenance of the disabled child cannot be paid in accordance with above, the DSWD shall bear the expenses, or such part thereof as may remain unpaid. 2. Make proper provisions for the custody of the property or money belonging to the committed child; 3. Furnish the institution to which the child has been committed with a copy of its judgment, together with all the reports and other data pertinent to the case.



CHAPTER 5: Other Special Proceedings I.

II.

III.

V.

 Procedure 1. Filing of petition. 2. If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing. 3. A copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. 4. The court shall order the sheriff to produce the alleged insane person, if possible, on the date of the hearing. 5. Hearing. The provincial or city fiscal shall prepare the petition for the Director of Health and represent him in court in the proceedings. The burden of proving insanity is on the person who alleges it (Director of Health). 6. Order of commitment. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.

B. Petition for Discharge of Insane  

I. HOSPITALIZATION OF INSANE PERSONS (Rule 101) Insanity – Condition of the mind where it is so impaired in function or so deranged as to induce deviation from normal conduct in the person so afflicted.

A. Petition for Commitment 



 

When filed: When the hospitalization of the person, who in the judgment of the Director of Health is insane, is for the public welfare or for the welfare of said person. Requisite: The person allegedly insane or the one having charge of him is opposed to his being taken to a hospital or other place for the insane. Who may file: Director of Health Where to file: RTC of the province where the person alleged to be insane is found.

Who may file: Director of Health. When filed: When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane: 1. Is temporarily or permanently cured; 2. May be released without danger.

Chin Ah Foo vs. Concepcion: The Health Secretary cannot order release without the approval of the RTC.

II. DECLARATION OF ABSENCE (Rule 107) AND OF PRESUMPTIVE DEATH (Arts. 390-392, CC) 

Scope and Applicability Rule 107 is applicable only when the absentee has properties to be administered.

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IV.

HOSPITALIZATION OF INSANE PERSONS (RULE 101) A. PETITION FOR COMMITMENT B. PETITION FOR DISCHARGE OF INSANE DECLARATION OF ABSENCE (RULE 107) AND OF PRESUMPTIVE DEATH (ARTS. 390-392, CC) A. ABSENCE B. PRESUMPTION OF DEATH CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. CHANGE OF NAME (RULE 103) B. CHANGE OF FIRST NAME OR NICKNAME AND CORRECTION OF CLERICAL OR TYPOGRAPHICAL ERRORS IN ENTRIES IN THE CIVIL REGISTRY (RA 9048) 4. SCOPE AND APPLICATION 5. RA 9048 AND RULE 103 COMPARED 6. THE PETITION C. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (RULE 108) VOLUNTARY DISSOLUTION OF CORPORATIONS A. WHEN NO CREDITORS AFFECTED (SEC. 118, CORPORATION CODE) B. WHEN CREDITORS ARE AFFECTED (SEC. 119, CORPORATION CODE) NATURALIZATION

Chapter 5: Other Special Proceedings



A. Absence 



Petition for Declaration of Absence and Appointment of Trustee or Administrator When filed: 1. After 2 years: a. From the disappearance of and without any news from the absentee, or; b. Since the receipt of the last news about him. 2. After 5 years, if the absentee left an administrator of his property.  Who may file: 1. Spouse present; 2. Heirs instituted in a will; 3. Relatives who will succeed by intestacy; 4. Those who have over the property of the absentee some right subordinated to the condition of his death.



Contents of Petitions 1. Jurisdictional facts; 2. Names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; 3. Names and residences of creditors and others who may have any adverse interest over the property of the absentee; 4. Probable value, location and character of the property belonging to the absentee.



Opposition Anyone appearing petition shall:

to

contest



Procedure 1. Filing of petition for appointment of representative or petition for declaration of absence. 2. Court shall fix a date and place for the hearing of the petition where all concerned may appear to contest the petition. 3. Copies of the notice of the time and place fixed for the hearing shall be: a. Served upon the known heirs, legatees, devisees, creditors and other interested persons, at least 10 days before the day of the hearing; b. Published once a week for 3 consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. 4. Hearing.  Compliance with the notice and publication requirements must be shown. 5. Issuance of order granting or denying the petition.  The judge shall :  Take the necessary measures to safeguard the rights and interests of the absentee;  Specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians. 6. In case of declaration of absence, the same shall not take effect until 6 months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette.

Reyes vs. Alejandro: It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration.

the

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Petition for Appointment of a Representative When filed: When a person: 1. Disappears from his domicile, his whereabouts being unknown; 2. Has not left an agent to administer his property or the power conferred upon the agent has expired. Who may file: 1. Any interested party; 2. Relative; 3. Friend; Where to file: RTC of the place where the absentee resided before his disappearance.

1. State in writing his grounds therefor; 2. Serve a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.






Who may be appointed Representative, Administrator, or Trustee 1. The spouse present, who shall be preferred when there is no legal separation; 2. Any competent person: a. If the absentee left no spouse; b. If the spouse present is a minor or otherwise incompetent.

III.CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (Asked in the Examinations)





Periods For all purposes, except for succession – 7 years. For the purpose of opening of succession – 10 years. o If disappeared after the age of 75 years – 5 years. Cases where there is danger of death, for all purposes, including succession: o A person on board a vessel lost during a sea voyage, or an aeroplane which is missing - 4 years since the loss of the vessel or aeroplane. o A person in the armed forces who has taken part in war - 4 years. o A person who has been in danger of death under other circumstances - 4 years. For the purpose of remarriage – 4 years. In cases where there is danger of death – 2 years. Petition for Declaration of Presumptive Death No independent action is necessary for the declaration of presumption of death, except for purposes of remarriage, where the present spouse must first file a summary proceeding for the declaration of presumptive death of the absent spouse before contracting a second marriage (Art. 41, FC).

and

2007

Bar

Applicable Rules Substantial changes in name: Rule 103 Substantial changes in entries in the civil registry (other than name): Rule 108 Non-substantial changes in entries in the civil registry (i.e., changes in first name or nickname and correction of clerical or typographical errors) : RA 9048

A. Change of Name (RULE 103) 

Who may file: 1. The person desiring to change his name; 2. Some other person on his behalf.



Where to file: RTC of the province in which he resides.

B. Presumption of Death 

2005

Ong Huan Tin vs. Republic (1967): An alien may petition for a change of name but he must be domiciled in the Philippines. No Yao Siong vs. Republic (1966): The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that by which the person is known in the community.



Contents of Petition 1. That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing; 2. The cause for which the change of the petitioner's name is sought; 3. The name asked for; 4. All names by which the petitioner is known (Secan Kok vs. Republic (1973); Go Chiu Beng vs. Republic (1972)). The petition shall be signed and verified.

Go Chiung Beng vs. Republic (1972): All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if said aliases are contained in the body of the petition. Oshito vs. Republic (1967): Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition

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Termination of Administration 1. When the absentee appears personally or by means of an agent; 2. When the death of the absentee is proved and his testate or intestate heirs appear; 3. When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title.



for hearing, the court should have required the petitioner to have the petition verified.



Laperal vs. Republic (1962): Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103...

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Opposition Who may file: Any interested person. Procedure 1. Filing of petition for change of name. 2. Court shall promulgate an order fixing a date and place for hearing the petition. The date set for the hearing shall not be:  Within 30 days prior to an election, and;  Within 4 months after the last publication of the notice. 3. Court shall direct a copy of the order to be published before the hearing at least once a week for 3 successive weeks in some newspaper of general circulation published in the province. 4. Hearing. o The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. 5. Judgment granting or denying the change of name. 6. Copy of judgments shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

Secan Kok vs. Republic (1973): A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children.

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Publication requirement A change in name is a proceeding in rem. As such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction (Regalado).

Jacobo vs. Republic: A discrepancy in the name sought to be adopted as stated in the petition and in the published order constitutes a substantial defect because it did not correctly identify the parties to the proceedings. It renders the entire proceedings null and void since the court has not acquired jurisdiction

.

B. Change of First Name or Nickname and Correction of Clerical Or Typographical Errors In Entries In The Civil Registry (RA 9048) 1. Scope and Application 

RA 9048 governs non-substantial changes in entries in the civil registry, such as: 1. Clerical or typographical errors, and; 2. Changes of first name or nickname.

2. RA 9048 AND Rule 103 Compared Nature of Proceeding

Scope

  

RA 9048 Administrative: Petition is filed before the local civil registrar or, for non-resident citizens, the consul general Correction of clerical or typographical errors and changes in first name or nickname

RULE 103 Judicial

Substantial changes in name, including surname

General Rule: No person can change his name or surname without judicial authority (Art. 376, CC). Exception: Changes of first name or nickname under RA 9048. Clerical or Typographical Error – A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that: 1. Is harmless and innocuous;

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Valid grounds for filing 1. When the name is ridiculous, dishonourable, or extremely difficult to write or pronounce; 2. Consequence of a change in status; 3. To avoid confusion (Alfon vs. Republic, 1980); 4. Having continuously used and been known since childhood by a Filipino name, unaware of his alien parentage (Ang Chay vs. Republic, 1970); 5. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anyone (Uy vs. Republic, 1965).




2. Is visible to the eyes or obvious to the understanding; 3. Can be corrected or changed only by reference to other existing record or records; 4. Does not involve the change of nationality, age, status or sex of the petitioner.

3. The Petition Who may file: A natural person having direct and personal interest in the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil register.

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Where to file: General Rule: The local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. If the petitioner has already migrated to another place in the country and it would not be practical for him, in terms of transportation expenses, time and effort, to appear in person before the local civil registrar keeping the documents to be corrected or changed: The local civil registrar of the place where the interested party is presently residing or domiciled. o The two local civil registrars concerned will communicate to facilitate the processing of the petition. If the petitioner is a Filipino citizen presently residing or domiciled in foreign countries: The nearest Philippine Consulate.

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Grounds 1. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; 3. The change will avoid confusion. Number of changes of name allowed Petition for change of name correction of clerical

of

error

can

only

be

Silverio vs. Republic (2007): A person’s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Rather than avoiding confusion, changing petitioner’s first name may only create grave complications in the civil registry and the public interest. No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. People vs. Cagandahan (2008): Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed. Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court.

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Form of petition 1. In the form of an affidavit; 2. Verified, and; 3. Subscribed and sworn to before any person authorized by law to administer oaths.

or or

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typographical availed once.


Contents of petition 1. Facts necessary to establish the merits of the petition; 2. A showing that the petitioner is competent to testify to the matters stated; 3. Particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made.

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Supporting documents In correction of clerical or typographical errors: 1. A certified true machine copy of the certificate or of the page or of the registry book containing the entry or entries sought to be corrected or changed; 2. At least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based; 3. Other documents which the petitioner or the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition. In changes of first name or nickname: 1. A certified true machine copy of the certificate or of the page or of the registry book containing the entry or entries sought to be corrected or changed; 2. At least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based; 3. Other documents which the petitioner or the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition; 4. Certification from the appropriate law enforcement agencies that the petitioner has no pending case or no criminal record.

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Procedure 1. Filing of petition. The petition and its supporting papers shall be filed in 3 copies to be distributed to: a. The concerned city or municipal civil registrar or the consul general; b. The Office of the Civil Registrar General;

c. The petitioner; 2. The City or Municipal Registrar or the Consul General shall post the petition in a conspicuous place for ten 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance. 3. In case of change of first name or nickname, the petition shall be published at least once a week for 2 consecutive weeks in a newspaper of general circulation. 4. The City or Municipal Registrar or the Consul General shall render a decision not later than 5 working days after the completion of the posting and/or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision.  Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. 5. The Civil Registrar General shall, within 10 working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection. 

Grounds for objection: a. The error is not clerical or typographical; b. The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; c. The basis used in changing the first name or nickname of a person does not fall under one of the valid grounds.  If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period, such decision shall become final and executory. 6. The civil registrar general shall immediately notify the city or municipal civil registrar or the

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consul general of the action taken on the decision. 7. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. 8. Appeal. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court.

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Correction of Civil Registry

Nature of Proceeding

Scope

Scope

Rule 108 governs substantial changes in entries in the civil registry, excluding name which is governed by Rule 103. Substantial Change – change that affects the civil status, citizenship, or nationality of a party. Entries Subject to Cancellation or Correction 1. Births; 2. Marriage; 3. Deaths; 4. Legal separations; 5. Judgments of annulments of marriage; 6. Judgments declaring marriages void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Election, loss or recovery of citizenship; 12. Civil interdiction; 13. Judicial determination of filiation; 14. Voluntary emancipation of a minor; 15. Changes of name;

Nature of Proceeding Scope

Who may File

Where and How Filed

Standing of Local Civil Register

Notice requirement

Rule 108 Judicial

Substantial changes in entries in the civil registry, other than name

RA 9048 Administrative: Petition is filed with the local civil registrar or, for nonresident citizens, the consul general Correction of clerical or typographical errors and changes in first name or nickname

Rule 108 Judicial

RULE 103 Judicial

Substantial changes in entries in the civil registry, other than name Any person interested in any act, event, order, or decree concerning the civil status of persons. Verified petition filed in the RTC where the corresponding civil registry is located Civil register concerned is made party to the proceeding as a respondent. The court shall cause reasonable notice to be given to persons named in the petition.

Substantial changes in name, including surname Person desiring to change his name or some other person on his behalf Petition filed in the RTC where the petitioner resides Civil register is not a party to the proceeding. No mention of cause of notice to be sent.

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C. Cancellation or Entries in the (RULE 108)

Rule 108 Compared with Rule 103 and RA 9048



Republic vs. Valencia: The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with.

Who may file: Any person interested in any act, event, order, or decree concerning the civil status of persons which has been recorded in the civil registry.

IV.

VOLUNTARY DISSOLUTION OF CORPORATIONS (please refer to the COMMERCIAL LAW REVIEWER, p.116)

V.

NATURALIZATION Naturalization – process that confers to an alien a nationality after birth by any of the means provided by law.

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Governing law- Commonwealth Act No. 473, as amended by Republic Act No. 530.



Qualifications 1. The petitioner must not be less than 21 years of age on the date of hearing the petition; 2. He must have resided in the Philippines for a continuous period of not less than 10 years; Period may be reduced to 5 years if the applicant: a. Honorably held office under the Government of the Philippines or under any of its provinces, cities, municipalities, or political subdivisions; b. Established a new industry or introduced a useful invention in the Philippines; c. Is married to a Filipino woman; d. Had been engaged as a teacher in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race in any of the branches of education or industry for a period of 2 years; e. Was born in the Philippines. 3. He must be of good moral character, and believe in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relations with the constituted government as well as the community in which he is living;

How: Verified petition. Where to file: RTC of the province where corresponding civil registry is located.

the

Who are made parties: 1. The civil registrar; 2. All persons who have or claim any interest which could be affected. 



Opposition Who may file: 1. The civil registrar; 2. Any person having or claiming any interest under the entry whose cancellation or correction is sought When filed: within 15 days from notice of the petition or from the last date of publication of the notice.

Procedure 1. Filing of the petition. 2. The court shall, by an order, fix the time and place for the hearing of the petition. 3. The court shall cause reasonable notice of the hearing to be given to the persons named in the petition. 4. The court shall cause the order to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province. 5. Hearing.  The court may make orders expediting the proceedings.  The court may grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. 6. Judgment.  A certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

Dy Lam Go v. Republic (5 SCRA 915 (1962)): Proper and irreproachable conduct imposes a higher standard of

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4. He must own real estate in the Philippines worth not less than P5,000, Philippine currency, or have some lucrative trade, profession, or lawful occupation; Lucrative trade, profession, or lawful occupation means substantial gainful employment or the obtaining of tangible receipts; an appreciable margin of income over expenses in order to provide for adequate support for himself and his family in case of sickness, unemployment, or disability to work. 5. He must be able to speak and write English or Spanish, and any one of the principal Philippine languages; 6. He must have enrolled his minor children of school age in any of the public schools or private schools recognized by the Bureau of Private Schools where Philippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of his petition. 

Disqualifications 1. Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; 2. Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; 3. Polygamists or believers in the practice of polygamy; 4. Persons convicted of crimes involving moral turpitude; 5. Persons suffering from mental alienation or incurable contagious diseases; 6. Persons who, during the period of their residence in the Philippines, have not mingled socially with the



Procedure 1. Filing of declaration of intention to become a citizen; When: 1 year before petition is filed. Where: Office of the Solicitor General. How: Declaration under oath. Exemptions: a. Persons born in the Philippines and who have received their primary and secondary education in public or private schools recognized by the Government, and not limited to any race or nationality; b. Those who have resided continuously in the Philippines for a period of thirty years or more before filing their application; c. The widow and minor children of an alien who declared his intention to become a citizen of the Philippines and dies before he is actually naturalized. 2. Filing of petition for naturalization; Where: RTC of the province in which the petitioner has resided at least one year immediately preceding the filing of the petition How: Petition in triplicate, signed by the applicant in his own handwriting

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Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; 7. Citizens or subjects of nations with whom the United States and the Philippines are at war, during the period of such war; 8. Citizens or subjects of a foreign country other than the United States whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. General Rule: Burden of proving disqualification is upon the state. Caveat: SC has held that applicant must prove he has none of disqualifications. The law must be strictly construed against the applicant because naturalization is a privilege and not a right.

morality than the term good moral character. It requires moral character of the highest degree. Merely being a lawabiding citizen is inadequate. Proper and irreproachable conduct must be proven by competent evidence such as testimony of 2 character witnesses who must be well known in the community and enjoy a high reputation for probity.


3. Publication at the petitioner’s expense once a week for three consecutive weeks in the Official Gazette or newspaper of general publication in the province where the petitioner resides of the petition; 4. Posting of copies of the petition and a general notice of the hearing in a public and conspicuous place; 5. Forwarding of copies of the petition, the sentence, the naturalization certificate, and other pertinent data to the DILG, DOJ, the Provincial Inspector of the Philippine Constabulary of the province and the MTC judge of the municipality wherein the petitioner resides; 6. Hearing of petition; No petition shall be heard within the thirty days preceding any election until after six months from the publication of the application. The hearing shall be public. The Solicitor-General shall appear on behalf of the Republic. 7. Approval or denial of petition and issuance of the Certificate of Naturalization; 8. Rehearing of petition 2 years after the promulgation of the judgment ; The decision shall not become executory until the court finds that during the intervening time the applicant has: a. Not left the Philippines; b. Dedicated himself continuously to a lawful calling or profession; c. Not been convicted of any offense or violation of Government promulgated rules; d. Not committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. 9. Taking of the oath of allegiance to support and defend the Constitution and the laws of the Philippines. 

Appeal Final decision appealable to SC, at the instance of either of the parties.

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Contents: a. Petitioner’s name and surname; b. His present and former places of residence; c. His occupation; d. Place and date of his birth; e. His civil status; f. Names, ages, birthplaces and residence of his wife and children; g. Approximate date of his arrival in the Philippines, the name of the port of debarkation, and, the name of the ship on which he came; h. Declaration that he has the qualifications and none of the disqualifications for naturalization; i. Declaration of compliance with the declaration of intention requirement; j. Declaration that he will reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship; k. Affidavit of at least two credible persons, stating that they are citizens of the Philippines and personally know the petitioner to be a resident of the Philippines for the required period of time and a person of good repute and morally irreproachable, and that said petitioner has in their opinion all the qualifications necessary and is not in any way disqualified to become a citizen of the Philippines; l. Names and post-office addresses of witnesses the petitioner may desire to introduce at the hearing of the case; m. Certificate of arrival and the declaration of intention; n. 2 photographs of the petitioner.



CHAPTER 6: Appeals in Special Proceedings 

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Advance Distributions Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the controversy/appeal be distributed, upon compliance with Rule 90

SPECIAL PROCEEDINGS

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Appealable Orders and Judgments 1. If it dis/allows a will 2. If it wholly determines who are the lawful heirs or the distributive shares 3. If it wholly or partially dis/allows a claim against a decedent’s estate, or any claim presented on the decedent’s estate, or any claim presented on the estate’s behalf on offset to claim against it 4. If it settles the account of an executor/administrator/trustee/gua rdian 5. If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian Exception: Appointment of a special administrator is not appealable Remedy: Petition for certiorari under Rule 65, if there is grave abuse of discretion. If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing Exception: Orders granting/ denying a MFR/MNT

Chapter 6: Appeals in Special Proceedings

While some of the items in Rule 109. Sec. 1 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Rule 41, Sec. 2 Since multiple appeals are contemplated under this provision, appeals in special proceedings necessitate a record on appeal as the original record should remain in the trial court In a special proceeding, the period of appeal is 30 days a notice of appeal and a record on appeal being required. The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final

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Chapter 7: The Writs

CHAPTER 7: The Writs 

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I. WRIT OF HABEAS CORPUS (Asked in the 1993, 1998, and 2003 Bar Examinations)

A. To What Habeas Corpus Extends Sec. 1 Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

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Vital purposes: To obtain relief from illegal confinement To liberate those who may be imprisoned without sufficient cause To deliver them from unlawful custody Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restrain is illegal Can only be suspended in cases if in cases or rebellion or invasion and when



In Moncupa v. Enrile (1986), it was held that (a) where a person continues to be unlawfully denied one or more of his constitutional freedoms, (b) where there is present denial of due process, (c) where the restraints not merely involuntary but appear to be unnecessary, and (d) where a deprivation of freedom originally valid has, in light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privileges of the writ

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WRIT OF HABEAS CORPUS A. To What Habeas Corpus Extends B. Who May Grant the Writ C. Requisites of Application D. When Writ not Allowed or Discharge Authorized E. When Writ Must be Granted and Issued F. Aspects of the Return G. When person Lawfully Imprisoned Recommitted, and When let to Bail H. When Prisoner Discharged if no Appeal I. Penalties J. Record of Writ, Fees and Costs II. WRIT OF AMPARO A. General principles B. Aspects of Filing C. Issuance and Service of the Writ D. Aspects of the Return E. Hearing on the Writ F. Allowable Reliefs G. Penalties H. Burden of Proof I. Judgment and Appeal J. Effect of Other Actions K. Other Matters III. WRIT OF HABEAS DATA A. General Principles B. Aspects of Filing C. Issuance and Service D. Aspects of Return E. Hearing on the Writ F. Penalties G. Judgment and Appeal H. Return of Judgment, Hearing thereon I. Effects of Other Actions J. Other Matters IV. WRIT MATRIX I.

public interest requires it (Art. III Sec. 15) Extends to all cases of illegal confinement or detention by which any person any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto Prime specification of the application for a writ of habeas corpus is restraint of liberty Not an inquisition between private parties, but an inquisition by the government proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring Ex parte Bollman: the question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts In the case if People v. Valte (1922), it was stated that the writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from illegal restraint Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraint


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for violations of Dangerous Drugs Law the penalty for which was later on reduced after the maximum of the applicable penalties newly prescribed by the Indeterminate Sentence Law. All courts of competent jurisdiction may entertain petitions for HC for this purpose, and although deficient in form, may be entertained so long as they are sufficient in substance (de Guzman v. Vinario, 1994) 

The WHC is the proper legal remedy : To enable parents to regain custody of a minor daughter, even though the latter be in the custody of a third person of her own free will To resolve questions of custody of a minor o The underlying rationale is not the illegality if the restraint but the right of custody

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Requisites: 1. Petitioner has the right to the custody of the minor 2. The rightful custody of the minor is being withheld by the respondent 3. That it is the best interest of the minor concerned to be in the custody of petitioner and not that of respondent While a writ of right, WHC it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition Judicial discretion is exercised, and whether or not the petition is sufficient in form and substance, writ should issue if the petition complies with the legal requirements and its averments make a prima facie case for relief WHC may be used with writ of certiorari for purposes of review The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts WHC reaches the body of the jurisdictional matters, but not the record. Writ of certiorari reaches the record but not the body While generally, the WHC will not be granted when there is and adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases

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General Rule: the release, whether permanent or temporary, of a detained person renders the petition for HC moot and academic Exceptions: Unless there are restraints attached to his release which precludes freedom of action in which case the Court can still inquire into the nature of his involuntary restraints E.g. In the aforementioned Moncupa case, the restrictions imposed by the military on the temporary release of the petitioner constitute restraints which limit the freedom of movement on said petitioner (not travel outside Manila, regular reporting to the military, no press interviews). It is not physical restraint alone which is inquired into by the WHC In contrast, Villavicencio v. Lukban (1919), the women who had been illegally seized and transported against their will were no longer in any restraint because, unlike in Moncupa, they were free to change their domicile without asking for official permission For denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction to conduct further proceedings, and HC may lie to obtain release of the accused Void judgment of conviction due to disregard of constitutional rights may be challenged by collateral attack, which is the precise function of WHC Failure by the accused to perfect his appeal before the Court of Appeals does not preclude recourse to the writ However, it is only where: 1. there is no proof whatever to sustain the order, or 2. where no fair hearing was granted, or 3. where there was an arbitrary disregard of the conceded or undisputed facts, that a WHC will issue While an excessive sentence or penalty imposed by final judgment may be corrected by HC, the cases where such ruling was applied involved penalties that could not be imposed under any circumstances for the crime for which the prisoner was convicted Correlatively, WHC may be applied to persons sentenced to life imprisonment



B. Who May Grant the Writ Sec. 2 The WHC may be granted by the SC, or any member thereof, on any day at any time, or by the CA or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a RTC, or any judge thereof for hearing and decision on the merits. It may also be granted by a RTC, or a judge thereof, on any day and at any time, and returnable before himself enforceable only within his judicial district.

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The SC,CA, and RTC have concurrent jurisdiction to issue WHC In the absence of all RTC judges in a province or city, municipal trial court judges may hear and decide petitions for a WHC (BP 129 Sec.9) It is only when the writ is issued by the SC or CA that it is enforceable anywhere in the Philippines Under the Family Court’s Act, family courts have jurisdiction to hear petitions for custody of minors and the issuance of the WHC in relation to custody of minors Petitions may still be filed with regular courts in the absence of the presiding judge of the family court, provided that regular courts shall refer the case to the family court a soon as its presiding judge returns to duty Petition may also be filed with appropriate regular courts in place where there are no family courts Matters pertaining to the guardianship of an infant must be determined in courts established for such matters; however, this does not preclude the

rendition of an order awarding temporary custody of a child in habeas corpus proceedings. Such continues in force until a court with jurisdiction over the guardianship appoints a guardian of his person

C. Requisites of Application Sec. 3 Application for the writ shall be by petition signed and verified by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or retrained; or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear.

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A common law spouse has the personality to institute on behalf of her common law husband the HC aspect of the petition, as she falls under the purview of the term “some person” Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shoes some authorization to make the application Where an application is made in a person’s behalf, and the person for whose behalf it is taken repudiates, the writ will be denied

D. To When Writ Not Allowed or Discharge Authorized Sec. 4 If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment; or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

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Generally, WHC is not the proper remedy for the correction of errors of fact or law o Exception: Error affects court’s jurisdiction (making the judgment void) WHC does not lie where the petitioner has the remedy of appeal or certiorari WHC is not proper: o To assert or vindicate denial of right to bail o For correcting errors in appreciation of fact or law HC and not prohibition is the proper remedy for reviewing proceedings for deportation of aliens



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E. When Writ Must Be Granted and Issued Sec. 5. A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in the case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

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The operative act is detention or restraint (whether or not physical). If there is none, no WHC will issue despite the possibility of respondent being liable to civil, criminal, or administrative action

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Judicial discretion is exercised in issuance of the writ, and will not issue as a matter of course

F. Aspects of the Return Sec. 6. To whom writ directed, and what to require. - In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. Sec. 7. How prisoner designated and writ served. - The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return or service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. Sec. 8. How writ executed and returned. The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be bought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. Sec. 9. Defect of form. - No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be bought.

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Preliminary citation – requires the respondent to appear and show cause why the peremptory writ should not be granted

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General Rule: WHC will not issue where the person alleged to be restrained of his liberty is in custody of an officer under a process issued by the court which has jurisdiction to do so Even if the arrest of a person is illegal, supervening events may bar his release or discharge form custody The legality of the detention is inquired into at the earliest, the application for a WHC Among the supervening events is the issuance of a judicial process (defined as a writ, warrant, subpoena, or other formal writing issued by authority of law) Another supervening event is the filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail (Velasco v. CA,1995) Filing of an information for the offense for which the accused is detained bars the availability of WHC Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC Proper remedy is a motion to quash warrant of arrest and/or information before the trial court Posting of a bail is not a waiver of the right to challenge the validity of the arrest, and therefore the right to resort to WHC (Revised Rules of Crim Pro Sec. 26) A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC



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Peremptory writ – unconditionally commands the respondent to gave the body of the detained person before the court at a time and place therein specified

Sec. 12. Hearing on return. Adjournments. When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.

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Failure of petitioners to file a reply to the return of the writ warrants dismissal of the petition In consonance with the rule that unless the allegations in the return are controverted, they are deemed true or admitted

G. When Person Lawfully Imprisoned Recommitted, and When Let to Bail Sec. 14. If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order of judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.

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WHC would not lie after the Warrant of Commitment was issued by the court on the basis of the Information filed against the accused

H. When Prisoner Discharged If No Appeal Sec. 15. When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

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Sec. 10. Contents of return. - When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:  (a) Whether he has or has not the party in his custody or power, or under restraint;  (b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held;  (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge;  (d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.  Sec. 11. Return to be signed and sworn to. - The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.


Sec. 13. When the return evidence, and when only a plea. - If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.


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I. Penalties Sec. 16. A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recorded in a proper action, and may also be punished by the court or judge as for contempt. Sec. 17. Person discharged not to be again imprisoned. - A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt.

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The state cannot reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense.

Sec. 18. When prisoner may be removed from one custody to another. - A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the

J. Record of Writ, Fees and Costs Sec. 19. The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.

II. WRIT OF AMPARO A. General Principles  

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Literally means to protect Came originally from Mexico and evolved into may forms Amparo libertad – for protection of personal freedom Amparo contra leyes – for judicial review of the constitutionality of statutes Amaparo casacion – judicial review of constitutionality and legality of judicial decisions Amparo agrario – for protection of peasants’ rights In the Philippines, the Constitution does not explicitly provide for the writ of amparo but some protection are available therein (e.g. grave abuse clause, judicial review) AM No 7-9-12-SC (Rules on the Writ of Amparo) was promulgated by the Supreme Court by virtue of the 1987 Constitution stating that the SC has the power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights…” (Art VIII Sec. 5). Interpreted as the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land.

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BP 129 Sec. 39 states that appeals in habeas corpus cases shall be 48 hours from notice of the judgment appealed from Sec. 15 of Rule 102 provides the order for the discharge of a prisoner shall be effective only if the office detaining the prisoner does not appeal in the case of Saulo v. Brig Gen Cruz (2001), it was held that the 48 hours for appeal is not only mandatory but also jurisdictional – therefore the court has no alternative but to dismiss appeal filed out of time appeal to the SC if pure questions of law while to the CA if it involves factual questions (Medina v. Yan, 1974)


proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes signs, or counter-signs any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action.


Sec. 1 The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

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In Sec. of Justice v. Manalo (supra), it was held that even if the respondents have escaped from captivity and are physically free, there is a continuing violation of their right to security because there is a violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts:  Threat of killing their families if they tried to escape  Failure of the military to protect them from abduction  Failure of the military to conduct effective investigation

B. Aspects of Filing Sec. 2 Who may File. The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (a) Any member of the immediate family namely: the spouse, children and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.

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This provides for the order which must be followed by those who can sue for the writ Necessary for the prevention of indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party Untimely resort to the writ by a nonmember of the family may endanger the life of the aggrieved party If authorized by (a) or (b), (c) may file

Sec. 3 Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat act or omission was committed or any of its element s occurred, or with the Sandiganbayan, the CA, the SC, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. When issued by a RTC or any judge thereof the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the CA or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the SC or any of its justices, it may be returnable before such Court or a justice thereof, or before the Sandiganbayan or the C or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred.

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Enumerates the constitutional rights protected by the writ, which is only the right to life, liberty and security of persons  Limits the coverage because other constitutional rights are already protected through different remedies However, the coverage is still broader compared to other jurisdictions Philippine writ covers both actual and threatened violations of constitutional rights Covers not only the public but also private individual and entities Covers extralegal killings (killings committed without due process of law) and enforced disappearances (Sec. of National Defense v. Manalo 2008), the elements of which are: An arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law “right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person.



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May be filed o any day, including Saturdays, Sundays, and holidays; from morning until evening Includes Sandiganbayan, unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions

Section 4 No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice, or judge shall docket the petition and act upon it immediately.

C. Issuance and Service Sec. 6. Issuance of the Writ. – Upon the filing of the petition, the court justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ in his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

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Writ is issued as a matter of course when on the face of the petition it ought to issue

D. Aspects of Return Sec. 9 Return; Contents. – Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: (a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission; (c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and (d) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken[...]. The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed.

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No general denials are allowed, unlike the writ of habeas corpus Sec.3 points out the institutions where the writ are returnable

Section 10 Defenses not pleaded deemed waived. – All defenses shall be raised in the return, otherwise, they shall be deemed waived. Section 12 Effect of failure to file return. – In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

E. Hearing on the Writ Section 11 Prohibited pleadings and motions. – The following pleadings and motions are prohibited: a. Motion to dismiss; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; c. Dilatory motion for postponement; d. Motion for a bill of particulars; e. Counterclaim or cross-claim; f. Third-party complaint;

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Section 5 Contents of the Petition. – The petition shall be signed and verified and shall allege the following: (a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, actor omission or if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, the personal circumstances and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (f) The relief prayed for. The petition may include a general prayer for other just and equitable reliefs.


Sec. 8 How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules in substituted service shall apply.


g. h. i. j. k. l.

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Reply; Motion to declare respondent in default; Intervention; Memorandum’ Motion for reconsideration of interlocutory orders or interim relief orders; and Petition for certiorari, mandamus or prohibition against any interlocutory order.

Allows motion for new trial and petition for relief from judgment

Section 13 Summary Hearing. – The heating on the petition shall be summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

F. Allowable Reliefs Section 14 Interim Reliefs. – Upon filing of the petition or at any time before final judgment, the court, justice, or judge may grant any of the following reliefs: (a) Temporary Protection Order. – The court, justice or judge, upon motion or motu propio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may ne extended to the officers concerned. The SC shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or aggrieved party and any member of the immediate family, in accordance to the guidelines which it shall issue. The accredited persons and private persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

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Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte

(b) Inspection Order. – The court, justice or judge upon verified motion and after due hearing may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place

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Requires hearing, may be availed of both the petitioner and the respondent If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the Supreme Court

(c) Production Order. – The court, justice or judge, upon verified motion and after due hearing may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

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Only granted upon motion and hearing Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents

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or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearances or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons.


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More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure

Section 15 Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due heating, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

G. Penalties Sec. 7 Panalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

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Amparo proceedings enjoy priority and cannot be delayed

Sec. 16 Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court, to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

H. Burden of Proof

The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

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I. Judgment and Appeal Sec. 18 Judgment. – The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

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The respondent who is a public official or employee must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was

Short period is demanded by extraordinary nature of the writ.

the

Sec. 19 Appeal. – Any party may appeal from the final judgment or order to the SC under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as habeas corpus cases.

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Sec. 17 Burden of and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

Sec. of Justice v. Manalo (supra) states that with the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained.

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Rule 45 appeal herein is different because it allows questions not only of law but also of fact to be raised Amparo proceedings essentially involves a determination of facts considering that its subject is extralegal killings or enforced disappearances, therefore a review of errors of fact should be allowed Disposition of appeals shall be prioritized like habeas corpus cases

Section 20 Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall

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(d) Witness Protection Order. – The court, justice or judge, upon motion or motu propio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.


observed in the performance of duty.



be made by the amparo court that shall, motu propio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice, upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule, not later than the first week of January every year.

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Section 25 Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

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J. Effects of Other Actions Section 21 Institution of Separate Actions. – This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

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The writ of amparo does not suspend the filing of criminal, civil or administrative actions Claim for damages should instead file in a claim in a proper civil action If evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent.

Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in a criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. Section 23 Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition.

K. Other Matters Section 24 Substantive Rights. – This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.

Section 26 Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings enforced disappearances or threats thereof pending in the trial and appellate courts.

III.WRIT OF HABEAS DATA A. General Principles Sec. 1 Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity or information regarding the person, family, home and correspondence of the aggrieved party.

B. Aspects of Filing Sec. 2 Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearance, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and patents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein Sec. 3 Where to File. – The petition may be filed with the RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or

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This is a liberalized rule on dismissal due to failure to prosecute If the petitioner cannot proceed to prove their allegations for justifiable reason, the court will not dismiss the petition but will archive it Parties will be notified before the archiving, as the reason has to be justified by a good reason, to be determined after hearing Two years is reckoned from the date of notice

This Rule shall continue to govern the disposition of the reliefs for amparo after consolidation.


information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the SC or CA or the Sandiganbayan when the action concerns public data files of the government offices.

C. Issuance and Service Sec. 7 Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. Sec. 9 How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules substituted service shall apply.

D. Aspects of Return Sec. 4 Where Returnable; Enforceable. – When the writ is issued by a RTC or any judge

Sec. 10 Return; Contents. – The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case if respondent in charge, in possession or in control of the data or information sunject of the petition; (i) A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) The currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceedings. A general denial of the allegations in the petition shall not be allowed.

E. Hearing on the Writ Sec. 12 When Defenses May be Heard in Chambers. – A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. Sec. 13 Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return, opposition affidavit, position paper and other pleadings;

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Sec. 5 Docket Fees. – No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. Sec. 6 Petition. – A certified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, register or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed form which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable.


thereof, it shall be returnable before such court or judge. When issued by the CA or the SB or any of its justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or before the CA or the SB or any of its justices, or to any RTC of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines.


(c) (d) (e) (f) (g) (h) (i) (j) (k) (l)

Dilatory motion for a bill of particulars; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; Motion to declare respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim relief orders; and Petition for certiorari, mandamus or prohibition against any interlocutory order.

F. Penalties Sec. 8 Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to the writ after its allowance , or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. Sec. 11 Contempt. – The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. Sec. 14 Return; Filing. – In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.

G. Judgment and Appeal Sec, 16 Judgment. – The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. Sec. 19 Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working

Sec. 15 Return of Service. – The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a fill statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ.

H. Return of Thereon

Judgment,

Hearing

Sec. 18 Hearing on Officer’s Return. - The court shall set the return for hearing with due notice to the parties and act accordingly.

I. Effects of Other Actions Sec. 20 Institution of Separate Actions. – The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. Sec. 21 Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. Sec. 22 Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in a criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data.

J. Other Matters Sec. 24 Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

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Sec. 14 Summary Hearing. – The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.


days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases.



IV. WRIT MATRIX WHC – Writ of Habeas Corpus WD – Writ of Habeas Data RWD – Rules on Habeas Data CA - Court of Appeals RTC – Regional Trial Court

Nature, scope, function

Who may file

Where filed

Habeas Corpus All cases of illegal confinement and detention which any person is deprived of his liberty; or rightful custody of any person is withheld from the person entitled (102.1)  Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint May be suspended in cases of invasion or rebellion when public safety requires it (Consti. Art. III Sec. 15) By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf (102.3)

Amparo Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity It covers extralegal killings and enforced disappearances or threats thereof.

Habeas Data Involves the right to privacy in life, liberty or security of the aggrieved party and covers extralegal killings and enforced disappearances

Shall not diminish, increase or modify substantive rights (RWA Sec. 23) Petition filed by the aggrieved party or by any qualified person or entity in the following order: a) Any member of the immediate family b) Any ascendant, descendant or collateral relative of the aggrieved within the 4th civil degree of consanguinity or affinity c) Any concerned citizen, organization, association or institution Filing by the aggrieved suspends the right of all others (RWA Sec. 2 )

Granted by:  SC or any member thereof, on any day and at any time  CA or any member thereof in instances authorized by law  RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district (102.2)  MTC OR FIRST LEVEL COURTS in the absence of RTC judges in a judicial region (section 35 BP 129)

Filed on any day and at any time:  SB, CA, SC, or any justice of such courts  RTC of place where the threat, act, or omission was committed or any element occurred (RWA Sec. 4)

Shall not diminish, increase or modify substantive rights (RWD Sec. 23) Any aggrieved party may file a petition for the WHD - However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): a) Any member of the immediate family of the aggrieved b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, (RWD Sec. 2) Petition may be filed with RTC where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of petitioner If public data files of government offices, petition shall be filed with the SC, CA, or SB (RWD Sec. 3)

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Limitations

WA – Writ of Amparo RWA - Rules on the Writ of Amparo SC – Supreme Court SB – Sandiganbayan CoC – Clerk of Court


Where enforceable

Where returnable

If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region (Section 21, BP 129 which modified the term judicial district in Section 2, Rule 102 into judicial region) where the judge sits If the one that granted the writ: Is the SC or CA, or a member thereof, returnable before such court or any member thereof or an RTC An RTC, or a judge thereof, returnable before himself (102.2)

upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires (102.19)


Amparo Writ shall be enforceable anywhere in the Philippines (RWA Sec. 4)

Habeas Data Writ shall be enforceable anywhere in the Philippines (RWD Sec. 3)

If the one that granted the writ: - Is the SC or any of its justices, before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred - The SB or CA or any of their justices, before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred (RWA Sec. 3)

If issued by: - The SC or any of its justices, before such Court or any justice thereof, or CA or SB or any of its justices, or the RTC of the place where the petitioner or respondent resides / has jurisdiction over the place where the data or information is gathered, stored or collected - The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC) - RTC, returnable before such court or judge (RWD Sec. 4) None for indigent petitioner Petition shall be docketed and acted upon immediately, w/o prejudice to subsequent submission of proof of indigency not later than 15 days from filing (RWD Sec. 5)

Petitioner shall be exempted from the payment of the docket and other lawful fees - Court, justice or judge shall docket the petition and act upon it immediately (RWA Sec 4)

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Docket Fees

Habeas Corpus If SC or CA issued, anywhere in the Philippines


Essential allegations/ Contents of petition

How and who serves

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then:  the clerk of court (CoC) shall issue the writ under the seal of the court; or  in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it (102.5) Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned (102.5) Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) or person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service  If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody (102.7)


Amparo Signed and verified and shall allege: a) The personal circumstances of the petitioner b) Name or appellation and circumstances of the respondent c) The right to life, liberty, and security violated or threatened with violation, d) The investigation conducted, if any, plus circumstances of each e) The actions and recourses taken by the petitioner f) Relief prayed for

Habeas Data Verified and written petition shall contain: a) Personal circumstances of petitioner and respondent b) Manner the right to privacy is violated or threatened and its effects c) Actions and recourses taken by the petitioner to secure the data or information d) The location of the files, registers, or databases, the government office, and the person in charge or control e) The reliefs prayed for

May include a general prayer for other just and equitable reliefs (RWA Sec. 5)

Such other relevant reliefs as are just and equitable (RWD Sec. 6)

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue  CoC shall issue the writ under the seal of the court; or  In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it

Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue.  CIC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance; or  In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it (RWD Sec. 7)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service  In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (RWA Sec. 8)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (RWD Sec. 9)

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When proper

Habeas Corpus Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth: a) The person in whose behalf whose the application is made is imprisoned or restrained of his liberty b) Name of the person detaining another or assumed appellation c) Place where he is imprisoned or restrained of his liberty d) Cause of detention (102.3)


Respondent

How executed and returned


Amparo Respondent is a public official or employee or private individual or entity

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: - the judge allowing the writ, - or, in his absence or disability, before some other judge of the same court

Respondent files the return

Habeas Data A public official or employee or a private individual or entity engaged in gathering, collecting or storing data Respondent files the return

SPECIAL PROCEEDINGS

Habeas Corpus May or may not be an officer

on the day specified in the writ,  unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein

When to file return

officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof (102.8) On the day specified on the writ

Within 5 working days after service of the writ

Same with WA

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Contents return

Return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced,  Unless the return is made and signed by a sworn public officer in his official capacity (102.11)


Amparo Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, , contain: a) Lawful defenses b) The steps or actions taken to determine the fate or whereabouts of the aggrieved party c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party d) If the respondent is a public official or employee, the return shall further state acts: i. To verify identity of aggrieved party ii. To recover and preserve evidence iii. To identify and collect witness statements iv. To determine cause, manner, location, and time of death or disappearance v. To identify and apprehend persons involved vi. Bring suspected offenders before a competent court (RWA Sec.9) … the respondent shall file a verified written return together with supporting affidavits… (RWA Sec. 9)

Habeas Data a) Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media etc. b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: i. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection ii. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information iii. The currency and accuracy of the data or information held Other allegations relevant to the resolution of the proceeding (RWD Sec.10)

Respondent shall file a verified written return together with supporting … (RWD Sec. 10)

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Formalities of return

of

Habeas Corpus When the person to be produced is imprisoned or restrained by an officer the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: a) Truth of custody/power over the aggrieved b) If has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held; c) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity d) If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (102.10)


Penalties For refusing to issue or serve

For faulty return


shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be punished for contempt (102.16) Is period of return extendable? Is a general denial allowed? Defenses not pleaded

Yes. Rule.

No

prohibition in

of

Date time hearing

and of

shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions (RWA Sec. 7)  The court, justice, or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resist a lawful process or order of the court to be punished for contempt  Contemnor may be imprisoned or imposed a fine (RWA Sec. 16) No, not even on highly meritorious grounds. No, by virtue if A.M. No. 07-9-12-SC If not raised in return deemed waived (RWA Sec 10) Court or justice shall proceed to hear the petition ex parte (RWA Sec. 12)

Effect of failure to file return

Nature Hearing

Amparo  CoC who refuses to issue the writ after its allowance, or  a deputized person who refuses to serve the same,

As specified in the writ

Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties.  Hearing shall be from day to day until completed; same priority as petitions for WHC Not later than 7 days from the issuance of the writ

Habeas Data  COC who refuses to issue the writ after its allowance, or  a deputized person who refuses to serve the same, shall be punished by the court, justice, or judge for contempt without prejudice to other disciplinary actions (RWD Sec. 8) The court, justice, or judge may punish with imprisonment or fine a respondent who commits contempt by:  Making a false return or  Refusing to make a return; or  Any person who otherwise disobeys or resists a lawful process or order of the court (RWD Sec. 11) Yes, by the court, for justifiable reasons (RWD Sec. 10) No, by virtue of RWD Sec. 10, last sentence.

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence (RWD Sec. 14) Summary. With possibility of preliminary conference similar to the writ of amparo (RWD Sec. 14) Hearing on chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of public or privileged character (RWD Sec. 12)

Not later than 10 working days from the date of issuance writ

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Habeas Corpus  CoC who refuses to issue the writ after allowance and demand,  Or a person to whom a writ is directed, who:  neglects/refuses to obey or make return of the same according to the command thereof,  or makes false return,  or upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours a true copy of the warrant or order of commitment,


Habeas Corpus Prohibited pleadings

of

Presumption of Official duty

Preponderance of evidence

Yes. Consonant wit 102.13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Judgment

Appeals

Within 48 hours from notice of the judgment of final order appealed

Consolidation of actions Effect filing criminal action

of

Habeas Data Same as writ of amparo (RWD Sec. 13)

The court shall render judgment within 10 days from the time the petition is submitted for decision (RWA Sec. 18) 5 working days from the date of notice of adverse judgment; Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWA Sec. 23) No more separate petition shall be filed. Reliefs available by motion in the criminal case (RWA Sec. 22)

Within 10 days from the time the petition is submitted for decision (RWD Sec. 16)

Substantial evidence required to prove the allegations in the petition (RWD Sec. 16)

5 working days from the date of notice of adverse judgment; Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWD Sec. 21) Same as WA

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Burden Proof


Amparo Motion to dismiss, Motion for extension of time to file opposition, affidavit, position paper and other pleadings, Dilatory motion for postponement, Motion for bill of particulars, Counterclaims or crossclaims, Third-party complaint, Reply, Motion to declare respondent in default, Intervention, Memorandum, Motion for reconsideration of interlocutory orders or interim relief orders, petition for certiorari, mandamus, or prohibition (RWA Sec.11) Establish claims by substantial evidence  if respondent is a private individual or entity, ordinary diligence  if public official or employee, extraordinary diligence Public official or employee cannot invoke the presumption that official duty has been regularly performed (RWA Sec. 17)


CHAPTER 8: Corporate Rehabilitation

Chapter 8: Corporate Rehabilitation

Effect on pending rehabilitation proceedings General Rule: any pending petition for rehabilitation that has not undergone the initial hearing prescribed under the Interim Rules of Procedure for Corporate Rehabilitation (which are the rules superseded by the current AM) at the time of the effectivity (16 January 2009) of this Rule shall be governed by these Rules (Rule 9, Sec. 2) Exception: Unless the court orders otherwise to prevent manifest injustice.



Procedure 1. Petition for rehabilitation with rehabilitation plan and pertinent annexes included therein 2. Court issues Stay Order and appoints receiver (within 5 working days from filing) 3. Publication (once a week for 2 weeks) and service of copy to creditors 4. Creditors pass opposition (15 days before the date of initial hearing) 5. Initial Hearing (within 45-60 days from the filing of the petition) 6. Approval of Rehabilitation plan (within 120 days of passing) and termination of stay order 7. Appeals / Termination of rehabilitation proceedings

I. II. III. IV.

PETITION FOR REHABILITATION STAY ORDER HEARING CORPORATION PLAN OF REHABILITATION V. FINAL ORDERS AND APPEALS THEREFOM

*this part covers only the general rules of corpo rehab under AM No. 00-8-10 SC. There are more specific requirements for each of the three types based on the party filing it, covered by Rules 4-6 of the said AM.

Corporate rehabilitation is distinct and separate from insolvency  Rehabilitation shall mean the restoration of the debtor to a position of successful operation and solvency, if it is shown that its continuance of operation is economically feasible and its creditors can recover by way of the present value of payments projected in the plan, more if the corporation continues as a going concern than if it is immediately liquidated. It is intended to enable a distressed corporation to gain a new lease on life and to continue its businesses as a going concern Thrust the continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency Insolvency, on the other hand, is intended to close and liquidate an insolvent corporation 

Corpo Rehab To enable a distressed corporation to gain a new lease on life and continue business Only available to corporations, partnerships or associations



Insolvency To close and liquidate insolvent corporation Intended to close corporations but also available to individuals and natural persons

Jurisdiction over corporate rehabilitation was vested in the SEC under PD 902-A, as amended RA 8799 transferred this to regular courts, and new Rules direct filing in the RTCs, depending on the operative venue Proceedings under this Rule shall be in rem and summary and nonadversarial.

I. PETITION FOR REHABILITATION 

Venue New Rules now explicitly provides (Rule 3, Sec. 2): 1. It should be the office specified in its articles of incorporation or partnership. 2. Where the principal office of the corporation, partnership or association is registered in the SEC as “Metro Manila”, the action must be filed in the RTC of the city or municipality where the head office is located. 3. A joint petition by a group of companies shall be filed in the RTC which has jurisdiction over the principal office of the parent company, as specified in its Articles of Incorporation.  The Interim Rules only cover rehabilitations that are: (1) Debtor-Rehabilitation (Rule 4) (2) Creditor-Initiated (Rule 5)

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


(3)





Receiver must post bond before entering his duties, and shall be entitled to reasonable professional fees and reimbursement of expenses for such performance of duty Submits reports every 3 months or as often as the court requires Rehabilitation receiver shall be considered as an officer of the court. He shall be primarily tasked to study the best way to rehabilitate the debtor and to ensure that the value of the debtor's property is reasonably maintained pending the determination of whether or not the debtor should be rehabilitated, as well as implement the rehabilitation plan after its approval Receiver may be removed upon motion if he (a) fails to perform any of his functions or on (b) any grounds for removing a trustee 

The additions to the required contents of the Stay Order: New Rules have a proviso that states that “the stay order shall not cover claims against letters of credit and similar security arrangements issued by a third party to secure the payment of the debtor’s obligations; provided, further, that the stay order shall not cover foreclosure by a creditor of property not belonging to a debtor under corporate rehabilitation; provided, however, that where the owner of such property sought to be foreclosed is also a guarantor or one who is not solidarily liable, said owner shall be entitled to the benefit of excussion as such guarantor”. Rules simply provide that the order shall prohibit the debtor from making any payment of its liabilities “except as provided in items (e), (f) and (g) of this Section or when ordered by the court pursuant to Section 10 of Rule 3.” “directing the payment of new loans or other forms of credit accommodations obtained for the rehabilitation of the debtor with prior court approval”



Stay order also directs publish the Order in general circulation in once a week for two weeks.

II. STAY ORDER 







If the petition is sufficient in form and substance, it will issue a Stay Order, which shall include, among other things, the appointment of a Receiver and the suspension of all pending claims against the corporation under rehabilitation Issued 5 days from petition, generally containing: (a) appointing a rehabilitation receiver and fixing his bond (b) staying enforcement of all claims The new Rules (Rule 3, Sec. 7) expressly provide that the “issuance of a stay order does not affect the right to commence actions or proceedings insofar as it is necessary to preserve a claim against the debtor.” Management will keep control of the insolvent company but the receiver will closely monitor its operations Consideration of moral character, knowledge, expertise, lack of conflict of interest, ability to file bond, independence, and integrity in the appointment of a receiver Upon receipt of stay order, receiver accepts/declines within 10 days

the petitioner to a newspaper of the Philippines (2) consecutive

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Pre-Negotiated Rehabilitation (Rule 6) The General Provisions (Rule 3, and what is covered by this part) applies to all types. Also, certain provisions on Debtor-Initiated Rehabilitation (Sections 5-12 of Rule 4) are expressly made applicable to Creditor-Initiated Rehabilitation (Rule 5). Recognition of foreign proceedings: The provisions on Recognition of Foreign Proceedings (Rule 7) are not expressly provided in the Interim Rules. Such recognition in new Rules is a new. Previously, the absence of express provisions gave rise to many issues that only delayed the speedy resolution of the proceedings New rules on the recognition of foreign rehabilitation proceedings – covers cases where assistance is sought in Philippine court by a foreign court in connection with a foreign state rehabilitation proceeding, or assistance in both foreign and domestic proceedings taking place at the same time







III.  

HEARING Hearing (initial) shall then be conducted not earlier than 45 days but not later than 60 days from filing thereof Prohibited pleadings. a. Motion to dismiss; b. Motion for a bill of particulars; c. Petition for relief; d. Motion for extension; e. Motion for postponement; f. Third-party complaint;

g. Intervention; h. Motion to hear affirmative defenses; and i. Any pleading or motion which is similar to or of like effect as any of the foregoing. 



IV.  

  



The following prohibited pleadings are added under Rule 3, Sec. 1 of the new Rules: 1. Motion to hear affirmative defenses; and 2. Any pleading or motion which is similar to or of like effect as any of the foregoing. On the other hand, the following grounds were removed from the list of prohibited pleadings: 1. Petition for Relief 2. Memorandum 3. Reply or Rejoinder 4. Motion for New Trial or Reconsideration. A party may file a motion for reconsideration of any order issued by the court prior to the approval of the rehabilitation plan. (Rule 8, Sec. 1)

CORPORATION PLAN REHABILITATION

OF

Rehab plan must include the desired business targets and the duration and coverage of its proposed implementation Must also lay down material financial commitments to support the rehabilitation and the means for their execution The court may revoke such plan within 90 days from approval if it was procured through fraud Court is given 120 days from the filing of the petition to approve or reject the rehabilitation plan An approved rehab plan may, upon motion, be altered or modified if such is necessary to achieve the desired targets set forth therein Effects of rehab plan: a. The plan and its provisions shall be binding upon the debtor and all persons who may be affected thereby, including the creditors, whether or not such persons have participated in the proceedings or opposed the plan or whether or not their claims have been scheduled; b. The debtor shall comply with the provisions of the plan and shall take

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Petitioner (also directed in stay order) shall the furnish a copy of the petition and its annexes, as well as the stay order, to the creditors named in the petition and the appropriate regulatory agencies such as the Securities and Exchange Commission, the Bangko Sentral ng Pilipinas, the Insurance Commission, the National Telecommunications Commission, the Housing and Land Use Regulatory Board and the Energy Regulatory Commission The time to file a verified comment by the creditors was increased to 15 days before the date of the first initial hearing, from 10 days under the Interim Rules. Stay order does not affect the right to commence actions or proceedings insofar as it is necessary to preserve a claim against a debtor Relief from, modification, or termination of Stay Order. 1. any of the allegations in the petition, or any of the contents of any attachment, or the verification thereof has ceased to be true; 2. a creditor does not have adequate protection over property securing its claim; 3. the debtor's secured obligation is more than the fair market value of the property subject of the stay and such property is not necessary for the rehabilitation of the debtor; or 4. the property covered by the stay order is not essential or necessary to the rehabilitation and the creditor’s failure to enforce its claim will cause more damage to the creditor than to the debtor. 5. The “stay order shall be effective from the date of its issuance until the approval of the rehabilitation plan or the dismissal of the petition” (Rule 3, Sec. 9)



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all actions necessary to carry out the plan; c. Payments shall be made to the creditors in accordance with the provisions of the plan; d. Contracts and other arrangements between the debtor and its creditors shall be interpreted as continuing to apply to the extent that they do not conflict with the provisions of the plan; and e. Any compromises on amounts or rescheduling of timing of payments by the debtor shall be binding on creditors regardless of whether or not the plan is successfully implemented. Rehabilitation plan itself may be extended, provided the period should not extend beyond 15 years from the expiration of the stipulated term existing at the time of filing the petition, as expressly stated in the Rules (Rule 3, Sec. 19) The court shall, upon motion or upon recommendation of the rehabilitation receiver, terminate the proceeding in any of the following cases: a. Dismissal of the petition; b. Failure of the debtor to submit the rehabilitation plan; c. Disapproval of the rehabilitation plan by the court; d. Failure to achieve the desired targets or goals as set forth in the rehabilitation plan; e. Failure of the debtor to perform its obligations under the plan; f. Determination that the rehabilitation plan may no longer be implemented in accordance with its terms, conditions, restrictions or assumptions; or g. Successful implementation of the rehabilitation plan. Under the Interim Rules, the court may, motu propio or on its own initiative, terminate the proceedings. New rules now requires motion/recommendation of receiver. Deleted under the new Rules. (Rule 3, Sec. 23) Also, the same provision expressly adds the “dismissal of the petition” in the enumeration of grounds for termination of the proceedings.

V. FINAL ORDERS THEREFROM 

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AND

APPEALS

Orders issued by the court under Rule shall be immediately executory Petition for review of the order shall not stay the execution of such unless restrained or enjoined by the appellate court Appeals shall be in accordance with the Rules of Court No relief can be extended to the party aggrieved by the court’s order on the motion through a special civil action for certiorari under Rule 65 of the Rules of Court. Such order can only be elevated to the Court of Appeals (CA) as an assigned error in the petition for review of the decision or order approving or disapproving the rehabilitation plan. An order issued after the approval of the rehabilitation plan can be reviewed only through a special civil action for certiorari under Rule 65 of the Rules of Court. (Rule 8, Sec. 1) Review of decision on Rehabilitation Plan. The new Rules now expressly provide that an order approving or disapproving a rehabilitation plan can only be reviewed through a petition for review to the CA under Rule 43 of the Rules of Court within 15 days from notice of the decision or order. (Rule 8, Sec. 2) Receiver then submits his final report after termination of the rehabilitation proceedings Reports - The new Rules now indicate that the report “shall include, at the minimum, interim financial statements of the debtor.” (Rule 3, Sec. 16)

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UP 2009 Remedial Law (Special Proceedings).pdf

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