Special Proceedings Bar Review Guide June 2012

SPECIAL PROCEEDINGS Bar Review Guide Justice Magdangal M. de Leon 1.

Distinction between civil action and special proceedings a.

Civil action – action by which a party sues another for enforcement or protection of a right, or prevention or redress of a wrong. b. Special proceeding – remedy by which a party seeks to establish a status, right or a particular fact.

2.

Nature of special proceedings – initially non-adversarial in nature; in the course of proceedings, there may be oppositors.

GENERAL PROVISION Rule 72 Subject matter and Applicability of General Rules Sec. 1.

Subject matter of special proceedings.

1. Rules 73-75 ) 2. Rules 76-81 ) 3. Rules 82-86 ) 4. Rules 87-90 ) 5. A.M. No. 03-02-05-SC 6. Rules 92-97 7. A.M. No. 02-06-02-SC 8. Rule 98 9. Rule 101 10. Rule 102 11. Rule 103 12. Rule 104

13. Rule 105 14. Rule 106 15. Rule 107 16. Rule 108 17. Rule 109 •

Settlement of Estate of Deceased Persons Guardianship of Minors Guardianship of Incompetents Adoption and Custody of Minors Trustees Hospitalization of Insane Persons Habeas Corpus Change of Name Voluntary Dissolution of Corporations (Deemed repealed by the Corporation Code, Title XIV, Secs. 117-122) Judicial Approval of Voluntary Recognition of Minor Natural Children Constitution of Family Home (Deemed repealed by the Family Code, Arts. 252-253) Absentees Cancellation or Correction of Entries Appeals in Special Proceedings

Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code

2 2. Actions mentioned in the Family Courts Act of 1997 (RA 8369) - declaration of absolute nullity of void marriages and annulment of voidable marriages - legal separation - provisional orders on support, custody of minor children and administration of common property - violence against women and their children and protection orders 3. Proceedings under: -

Child & Youth Welfare Code (PD 1083) Child Abuse Act (RA 7610) Child Employment Act (RA 7658) declaration of status as abandoned, dependent or neglected children voluntary or involuntary commitment of children suspension, termination or restoration of parental authority

4. 5. 6. 7. 8.

Domestic and Inter-country adoption Petition for corporate rehabilitation Petition for writ of amparo Petition for writ of habeas data Arbitration

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Rules in civil actions applicable to special proceedings Sec. 2. Applicability of rules of civil actions. In the absence of special rules, the rules provided for in ordinary actions shall be, as far as practicable, applicable to special proceedings. 1. Rule 17 governing dismissal of actions by plaintiff in civil actions (Ventura vs. Ventura, Sept. 24, 1969) 2. Rules regarding: - preparation, filing and service of applications, motions, and other papers - omnibus motions - subpoena - computation of time - motion for new trial - discovery - trial before commissioners - procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589 [1964]) 3. Rule 33 regarding judgment on demurrer to evidence (Matute vs. CA, 26 SCRA 768 [1969])

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Recent jurisprudence

In the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring a certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person. (Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)

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A. Settlement of Estate of Deceased Persons, Venue and Process •

Art. 777, Civil Code – rights to succession are transmitted from the moment of death of the decedent.

This is only from the substantive aspect. From the PROCEDURAL aspect, there are certain procedures that must be observed before actual transmission of the property, but rights of the heirs retroact from the moment of death. •

Recent jurisprudence

The right of respondent’s predecessors over the subject property is more than sufficient to uphold respondent’s right to possession over the same. Respondent’s right to the property was vested in her along with her siblings from the moment of their father’s death. As heir, respondent had the right to the possession of the property, which is one of the attributes of ownership. Such rights are enforced and protected from encroachments made or attempted before the judicial declaration since respondent acquired hereditary rights even before judicial declaration in testate or intestate proceedings.(Bunyi versus Factor. G.R. No. 172547, June 30, 2009)

1. Which court has jurisdiction • Settlement of estate The determination of which court exercises jurisdiction over matters of probate depends upon the GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as amended by RA 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000, 323 SCRA 102]), Hence, the court may be the MTC or RTC. Kinds of settlement based on the FORM of settlement: 1. Extrajudicial settlement (Rule 74, Sec. 1) 2. Summary settlement of estates of small value (Rule 74, Sec. 2) 3. Judicial settlement through letters testamentary or letters of administration with or without the will annexed (Rules 73, 75-90)

2. Venue in judicial settlement of estates Rule 73 VENUE AND PROCESS Sec. 1. Where estate of deceased persons settled. 1.

If residing in Philippines at time of death, whether citizen or not, court of PLACE OF RESIDENCE.

2.

If residing in a foreign country – court of ANY PLACE WHERE HE HAD ESTATE.

3.

Court first taking cognizance of settlement of estate of a decedent shall exercise jurisdiction TO THE EXCLUSION of all other courts. - subject to preferential jurisdiction of court where TESTATE proceedings are filed.

4. Jurisdiction assumed by a court depending on - place of residence of decedent, or

4 - location of estate shall NOT BE CONTESTED in a suit or proceeding, • except in an appeal from that court, or • when want of jurisdiction appears in the record •

NOTES:

1. Term “resides” refers to “actual or physical” residence, as distinguished from “legal residence” or “domicile.” There is a distinction between “residence” for purposes of election laws and “residence” for purposes of fixing the venue of actions. In election cases, “residence” and “domicile” are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. However, for purposes of fixing venue under the Rules of Court, the “residence” of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. Hence, it is possible that a person may have his residence in one place and domicile in another. (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007) 2. Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of residence or (b) where his estate is located, relates to VENUE and not jurisdiction. 3.

Where two proceedings filed, one intestate, the other testate – illustrative cases on which courts should have “jurisdiction”:  ROBERTS VS. LEONIDAS (129 SCRA 33) – intestate in CFI Manila Branch 20, testate (reprobate) in CFI Manila, Branch 38. Ruling: priority to second branch of same court (CFI Manila). a. Probate of will MANDATORY- anomalous that estate of person who died testate should be settled in intestate proceedings. b. Intestate case should be CONSOLIDATED with testate proceeding - Judge assigned to testate proceeding should continue hearing the two cases.  URIARTE VS. CFI OF NEGROS OCC. (33 SCRA 252) – intestate in Negros court, testate in Manila court. Ruling: priority to first court. Petitioner in Manila court should have submitted will for probate to Negros court, either in separate special proceeding or motion. Testate proceeding takes precedence over intestate proceeding. If in the course of intestate proceeding, it is found that decedent left a will, proceeding for probate of will should REPLACE intestate proceeding.  CUENCO VS. CA (53 SCRA 360 [1973]) – intestate in Cebu court, testate in QC court. Ruling: priority to second court. First court, upon learning that petition for probate has been presented in another court, may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE petition before it, and instead DEFER to second court. If the will is admitted to probate, it will definitely DECLINE to take cognizance.

Explain difference between Uriarte and Cuenco rulings – In Uriarte, there was showing that petitioner in probate proceeding knew before filing of petition in Manila that there was already intestate proceeding in Negros. Sec. 2. Where estate settled upon dissolution of marriage A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of money chargeable against the conjugal property. Proper remedy – file a claim in the settlement of estate of the decedent. Reason: upon death of one spouse, powers

5 of administration of surviving spouse ceases and is passed to administrator appointed by probate court in the settlement proceedings. (Alipio vs. CA, 341 SCRA 441 [2000])

3. Extent of jurisdiction of probate court •

Probate court is of limited jurisdiction

1. Probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and equally claimed as belonging to outside parties. 2. It can only determine whether or not they should be included in the inventory or list of properties to be administered by the administrator. 3. Probate court can only pass upon questions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory. 4. Parties have to resort to an ordinary action for final determination of conflicting claims of title. CASES: Vda. de Rodriguez vs. CA, 91 SCRA 540; Pastor vs. CA, 122 SCRA 885; Pereira vs. CA, 174 SCRA 154 . • Separate civil action for quieting of title - where issue or ownership of properties excluded from the inventory is finally determined (Pobre vs. Gonong, 148 SCRA 553 [1987]). EXCEPTION: Where interested parties are all heirs and rights of third parties are not impaired, probate court can decide question of ownership (Coca vs. Pangilinan, 81 SCRA 278 [1987]). With consent of all the parties, without prejudice to third persons (Trinidad vs. CA, 202 SCRA 106 [1991]).

4. Powers and duties of probate court •

However, probate court has jurisdiction to (a) determine heirs – separate action for declaration of heirs not proper (Solivio vs. CA, 182 SCRA 119 [1990]) and (b) distribute estate.

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In the exercise of probate jurisdiction. the court may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted to them by law (Rule 73, Sec. 3). .

B. Summary Settlement of Estates 1. Extrajudicial settlement by agreement between heirs, when allowed Rule 74, Sec. 1. Extrajudicial settlement by agreement between the heirs •

REQUISITES OF EXTRAJUDICIAL SETTLEMENT

6 1. Decedent dies intestate 2. No outstanding debts at time of settlement* 3. Heirs all of legal age or minors represented by judicial guardians or legal representatives 4. Settlement made in public instrument duly filed with Register of Deeds 5. Publication in newspaper of general circulation in the province once a week for 3 consecutive weeks 6. Bond equivalent to value of personal property posted with Register of Deeds** * Presumed that decedent left no debts if no creditor filed petition for letters of administration within 2 years after death of decedent. ** Bond required only when personality is involved in the extrajudicial settlement. Real estate is subject to lien in favor of creditors, heirs or other persons for 2 years from distribution of estate, notwithstanding any transfers of real estate that may have been made (Sec. 4, Rule 74). • RATIONALE for Sec. 1, Rule 74 – when person dies without having obligations to be paid, his heirs are not bound to submit property for judicial administration, which is always long and costly (Utulo vs. Pasion, 66 Phil. 302). •

IF HEIRS DISAGREE – ordinary action for partition.

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IF ONLY ONE HEIR – affidavit of self-adjudication.  FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS REQUIRED – whether by public instrument, affidavit, stipulation in pending action for partition.  Lack of registration of extrajudicial settlement does not affect its validity when there are no creditors or rights of creditors are not involved (Vda. de Reyes vs. CA, 199 SCRA 646 (1991).  DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any person who has not participated therein or who had no notice thereof (Sec. 1, last par., Rule 74; Sampilo vs. CA, 101 Phil. 71 [1958]).

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Extrajudicial settlement – on whom binding

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. (Cua vs. Vargas, G.R. No. 156536, October 31, 2006) The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate. (Spouses Tiro vs. Heirs of Cuyos, G.R. No. 161220, July 30, 2008)

2. Two-year prescriptive period • Action to annul deed of extrajudicial settlement – Sec. 4, Rule 74 provides a two year prescriptive period (1) to persons who participated or taken part or had notice of the extrajudicial partition, and (2) when the provisions of Sec. 1 of Rule 74 have been strictly complied with – that all persons or heirs of the decedent have taken part in

7 the extrajudicial settlement or are represented by themselves or through guardians (Pedrosa vs. CA, 353 SCRA 620 [2001]).

3. Affidavit of self-adjudication by sole heir Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate (Delgado vda. de De la Rosa vs. Heirs of Marciana Rustia vda. de Damian, 480 SCRA 334 [2006]). Respondent, believing rightly or wrongly that she was the sole heir to Portugal’s estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. (Portugal vs. Portugal-Beltran, G.R.No. 155555, August 16, 2005) Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate. (In the Matter of the Intestate Estate of Delgado, G.R. No. 155733, January 27, 2006

4. Summary settlement of estates of small value, when allowed Distinction between extrajudicial settlement (ES) and summary settlement of estates of small value (SS): 1. ES-no court intervention SS-judicial adjudication although summary 2. ES-value of estate immaterial SS-applies only where gross value not more than P10,000.00 3. ES-allowed only in intestate succession SS-both testate and intestate 4. ES-no outstanding debts of estate at time of settlement SS-even if there are debts

5. Remedies of aggrieved parties after extrajudicial settlement of estate The remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial partition is to file an action for reconveyance. Prescriptive period for non-participants – 10 years, because an action for reconveyance based on implied or constructive trust, being an obligation created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code) The period starts from issuance of title over the property (Marquez vs. CA, 300 SCRA 653 [1998]). Constructive trusts under Art. 1456 are established to prevent unjust enrichment. In Marquez, husband executed affidavit of self-adjudication without including the children

8 The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs. CA,, that prescriptive period for non-participants is 4 years from discovery of fraud, i.e., when deed was filed with Register of Deeds and new title issued, is not applicable, because the same was based on the old Code of Civil Procedure (Sec. 43, which governed prescription). The Gerona doctrine was abandoned in Amerol vs. Bagumbaran, 154 SCRA 396 (1987) and reiterated in Caro vs. CA, 180 SCRA 401 (1989) and Marquez vs. CA. • Exception to prescription of actions – when plaintiff, the legal owner, and not the defendant registered owner, is in possession of the land to be reconveyed. Said action, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value (Heirs of Saludares vs. CA, 420 SCRA 54).

C. Production and Probate of Will Rule 75 Production of will, Allowance of will necessary 1. Allowance of will is conclusive as to its due execution. • Art. 783, Civil Code defines a will as: an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate to take effect after his death. Petitioner should realize that the allowance of her husband’s will is conclusive only as to its due execution. The authority of the probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. Thus, petitioner’s claim of title to the properties forming part of her husband’s estate should be settled in an ordinary action before the regular courts. (Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007) 2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY. a. The law enjoins probate of the will and public policy requires it. Unless will is probated and notice given to the whole world, right of a person to dispose of his property by will may be rendered nugatory (Maninang vs. CA, 114 SCRA 478 [1982]). The Deed of Donation which is one of mortis causa, not having followed the formalities of a will, is void and transmitted no right to petitioners’ mother. But even assuming that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria. (Aluad vs. Aluad, G.R. No. 176943, October 17, 2008 b. In intestate succession, no valid partition among heirs until after will has been probated (Ralla vs. Judge Untalan, 172 SCRA 858 [1989]). c. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy requires that a will should be probated (Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).

1. Nature of probate proceeding •

PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY

9 GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the will, i.e.: a. due execution – voluntariness b. testator’s testamentary capacity – sound mind c. compliance with formal requisites or solemnities 1. Intrinsic validity of the will normally comes after court declares that will has been duly authenticated. 2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will (Nuguid vs. Nuguid, 17 SCRA 449 [1966]; Maninang vs. CA, supra). EXCEPTIONS: 1. In exceptional instances, courts not powerless to pass upon certain provisions of will which it may declare invalid even as it upholds extrinsic validity of will (Ajero vs. Ca, 236 SCRA 488 [1994]). 2. Probate court may only disregard passing on extrinsic validity of will where intrinsic validity apparent on face of will (Maninang vs. CA, supra) 3. Probate of will might become idle ceremony if on its face it appears intrinsically void. 4. In Nuguid, court ruled that will was intrinsically invalid as it completely preterited parents of the testator. a. Preterition – annuls institution of heirs b. Disinheritance – annuls institution of heirs as to portion of estate which disinherited heirs have been illegally deprived

2. Who may petition for probate; persons entitled to notice Rule 76 Allowance or Disallowance of Will Sec. 1. Who may petition for allowance of will. •

WHO

1. 2. 3. 4. 5.

Executor Legatee – need not be a relative of decedent Devisee – need not be a relative of decedent Other interested person - heir; creditor Testator – during his lifetime

• WHEN – at any time after death of testator – not subject to bar by statute of limitations and does not prescribe, since it is required by public policy. •

WHERE – court having jurisdiction

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WHAT – petition to have will allowed whether: a. b. c.

will in possession of petitioner or not will lost will destroyed

10 JURISDICTION HOW ACQUIRED a. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not jurisdictional requirement. b. Delivery of will sufficient even if no petition filed – under Sec. 3, Rule 76, “when a will is delivered to the court,” court could motu proprio take steps to fix time and place for proving the will, issue corresponding notices. •

Only known heirs, legatees and devisees entitled to personal notice

Rule 76, Sec. 4. Heirs, devisees, legatees and executor to be notified by mail or personally. 1. Notice of time and place of hearing should be addressed to a. designated or known heirs, legatees and devisees b. person named as executor (if he is not petitioner) c. person named as co-executor not petitioning 2. residing in the Philippines 3. at their places of residence, if known 4. Personal service – at least 10 days before hearing 5. Mailed service – at least 20 days before hearing 6. IF TESTATOR asks for allowance of his own will – notice shall be sent only to his COMPULSORY HEIRS. •

Notice to Designated Heirs, Legatees and Devisees Jurisdictional – when they are known AND their places of residence are known (De Arranz vs. Galing, 161 SCRA 628).

Notice is required to be personally given to known heirs, legatees, and devisees of the testator. [Sec. 4, Rule 76, Rules of Court]. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same. (Alaban vs. CA, G.R. No. 156021, September 23, 2005).

D. Allowance or Disalllowance of will 1. Contents of petition for allowance of will Rule 76, Sec. 2. Contents of petition. a. Jurisdictional facts: 1. that a person has died leaving a will; and 2. the testator at the time of death is a resident within the territorial jurisdiction of the court; or 3. the testator is a non-resident at the time of death but left property within the territorial jurisdiction of the court 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 thereof

11 Rule 76, Sec. 3. published.

Court to appoint time for proving the will. Notice thereof to be

Notice and Hearing; Publication 1. After will delivered to, or petition for allowance of will filed in court having jurisdiction, court – a. shall fix time and place for proving will – when all concerned may appear to contest allowance thereof. b. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of general circulation in the province. 2. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR himself. Probate of Will is In Rem • Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the whole world. • When probate is granted, the judgment is binding upon everybody, even against the state. Probate JURISDICTIONAL Without publication of petition, proceedings for settlement of estate is VOID and should be ANNULLED. Rule 76, Sec. 5. Proof of hearing. What sufficient in absence of contest. •

EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication 2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence known 3. Testimony of subscribing witnesses a. Uncontested – one witness sufficient b. Contested – all subscribing witnesses and notary (wills executed under Civil Code) other witnesses (under certain conditions) 4. Holographic will a. Uncontested – at least one witness who knows handwriting and signature of testator; expert testimony (in the absence of competent witness) b. Contested – at least 3 witnesses who know handwriting of testator; expert testimony (in the absence of competent witness) 5. Holographic will – testator himself as petitioner a. Contested – contestant has burden of disproving genuineness and due execution b. Uncontested – testator must affirm that will and signature are in his own handwriting •

Substantial Compliance Rule

If will executed in substantial compliance with formalities of law, and possibility of bad faith obviated – it should be admitted to probate (De Jesus vs. De Jesus, 134 SCRA 245).

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2. Grounds for disallowing will Rule 76, Sec. 9. Grounds for disallowing will. 1. Legal formalities a. not executed and attested as required by law 2. Testamentary capacity b. testator insane or otherwise mentally incapable to make will at time of execution 3. Due execution c. executed under duress, or the influence of fear, or threats d. procured by undue and improper pressure and influence on the part of the beneficiary, or some other person, for his benefit. e. signature of testator procured by fraud or trick and he did not intend that the instrument be his will at time of fixing his signature f. testator acted by mistake or did not intend that instrument be signed or should be his will at the time of affixing his signature (Art. 389, Civil Code) •

Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND can serve to disallow a will. Example: If testator fails to sign and date some dispositions in holographic will, it affects only the validity of the dispositions, but not the whole will. Exc. If unauthenticated alterations, cancellations or insertions are made on the DATE of will of on testator’s SIGNATURE (Ajero vs. CA, supra). •

Separate wills may be probated jointly (Vda. de Perez vs. Tolete, 232 SCRA 722 [1994]).

3. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate Rule 77 Allowance of will proved outside of philippines and administration of estate thereunder Sec. 1. Will proved outside of the Philippines may be allowed here. •

EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the Philippines: 1. due execution of will in accordance with foreign laws 2. testator has domicile in foreign country and not Philippines 3. will has been admitted to probate in such country 4. fact that foreign court is a probate court 5. law of the foreign country on procedure and allowance of wills (Vda. de Perez vs. Tolete, supra)

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Reprobate of will While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them; however, petitioner, as ancillary administrator of

13 Audrey’s estate, was duty-bound to introduce in evidence the pertinent law of the State of Maryland. (Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006) PUBLICATION AND NOTICE REQUIRED Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally to known heirs, legatees and devisees of testator resident in the Philippines and to executor, if he is not the petitioner, required also in wills for reprobate (Vda. de Perez vs. Tolete). EFFECT OF PROBATE When the will is allowed, it shall have the same effect as if originally proved and allowed in such court (Rule 77, Sec. 3). The letters testamentary or of administration granted shall extend to all of the estate of the testator in the Philippines. After payment of just debts and expenses of administration, the estate shall be disposed of according to such will, so far as such will may operate upon it (Rule 77, Sec. 4).

E. Letters Testamentary and of Administration Rule 78 Letters testamentary and of administration, when and to whom issued Sec. 1. Who are incompetent to serve as executors or administrators • • •

EXECUTOR – person named in the will to administer decedent’s estate to carry out provisions thereof ADMINISTRATOR – person appointed by the court to administer the estate Administrator need not be an heir – can be a stranger to the deceased, such as a creditor.

GROUNDS FOR INCOMPETENCE 1. Minority 2. Non-residence 3. Unfitness a. drunkenness b. incompetence c. want of understanding d. want of integrity e. conviction of offense involving moral turpitude (anything done contrary to justice, honesty, good morals) •

Courts may refuse to appoint a person as executor or administrator on ground of UNSUITABLENESS – adverse interest or hostile to those immediately interested in the estate (Lim vs. Diaz-Maillares, 18 SCRA 371 [1966]).

Failure to file an income tax return” is not a crime involving moral turpitude because the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. (Republic vs. Marcos, G.R. No. 130371, August 4, 2009) LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78, Sec. 4) When the will is proved and allowed, the court shall issue LETTERS TESTAMENTARY thereon to the person named as EXECUTOR therein, if he is -a. competent b. accepts the trust and c. gives bond

14 1. When and to whom letters of administration granted Rule 78, Sec. 6. When and to whom letters of administration granted •

When administration granted

1. No executor named in will 2. Executor/s (is/are): a. Incompetent - Minor - Non-resident - Unfit b. Refuse the trust c. Fail to give bond 3. Person dies intestate 4. Will void and not allowed

)

)

) letters of administration with will annexed

letters of administration )

2. Order of preference Order of preference in appointment of administrator (Rule 78, Sec. 6) 1. surviving spouse – partner in conjugal partnership and heir of deceased 2. next of kin •

Meaning of next of kin

On the matter of appointment osf administrator of the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent. When the law speaks of “next of kin”, the reference is to those who are entitled, under the statute of distribution, to the decedent’s property; one whose relationship is such that he is entitled to share in the estate as distributed, or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of suits. (Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005) 2. person requested by spouse or next of kin 3. principal creditors a. if spouse or next of kin is incompetent or unwilling or b. neglects for 30 days after death of decedent to apply for administration, or to request that administration be granted to some other person 3.

other person selected by court – if no creditor competent or willing

The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 of the Rules of Court for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as the appointment of the latter lies entirely in the discretion of the court, and is not appealable. Not being appealable, the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008) •

Court may reject order of preference

15 While surviving spouse is entitled to preference in the appointment, circumstances might warrant his rejection and appointment of someone else, at the discretion of the court. •

Interest in estate as principal consideration

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. Those who will reap benefit of a wise, speedy and economical administration or will suffer consequences of waste, improvidence or mismanagement – have the HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to administer estate correctly (Gonzales vs. Aguinaldo, 190 SCRA 112 [1990]). The order of preference does not rule out the appointment of co-administrators, especially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estate.

3. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration Rule 79 Opposing issuance of letters testamentary, petition and contest for letters of administration •

LETTERS TESTAMENTARY – issued to executor

•

LETTERS OF ADMINISTRATION WITH WILL ANNEXED – issued to administrator when there is no executor named in will, or executor is incompetent, refuses trust or fails to give bond.

•

LETTERS OF ADMINISTRATION – issued to administrator in intestate proceedings.

Sec. 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration Any person interested in a will may oppose in writing the issuance of letters testamentary to persons named as executors, and at the same time file petition for letters of administration with will annexed. Meaning of “interested person” – one who would be benefited by the estate (heir), or one who has a claim against the estate (creditor). Interest must be MATERIAL and DIRECT, not merely indirect or contingent (Sagunsin vs. Lindayag, 6 SCRA 874). An “interested person” has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent (San Luis vs. San Luis, G.R. No. 133743, February 6, 2007) Where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse, can no longer be established, such contingent interest does not make her an interested party. (Tayag ve. Tayag-Gallor, G.R. No. 174680, March 24, 2008) PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79) Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional.

16 Also, notice to “known heirs and creditors of the decedent, and to any other person believed to have an interest in the estate” (per Sec. 4, Rule 76) if names and addresses are known (De Arranz vs. Galing).

4. Powers and duties of executors and administrators; restrictions on their powers Powers: a. Possess and manage estate of the deceased to pay debts and expenses of administration. (Rule 84, Sec. 2) b. (Executor or administrator of estate of a deceased partner) Have access to, examine and take copies of, books and papers relating to the partnership business, and examine and make invoices of the property belonging to such partnership (Ibid., Sec. 1). c. With the approval of the court, to compound or compromise with a debtor of the deceased (Rule 87, Sec. 4) Duties a. Maintain the estate in tenantable repair, and. b. Deliver the same to the heirs or devisees when directed by the court. (Rule 84, Sec. 3) The administrator may only deliver properties of the estate to the heirs after payment of the debts, funeral charges and other expenses against the estate, except when authorized by the court (Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)

5. Appointment of special administrator Rule 80 Special administrator •

WHEN IS SPECIAL ADMINISTRATOR APPOINTED 1. When there is delay in granting letters testamentary or of administration by any cause - including appeal from allowance or disallowance of will 2. court may appoint special administrator to take possession and charge of the estate of the deceased 3. until a. questions causing delay decided or b. executors or administrators appointed

The appointment of a special administrator is justified only when there is delay in granting letters, testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no will, as in the Petition at bar) occasioned by any cause. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008) •PUBLICATION AND NOTICE REQUIRED Even in the appointment of a special administrator, same jurisdictional requirements under Sec. 3, Rule 79. •

ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE

17 Order appointing special administrator interlocutory in nature and mere incident in the judicial proceedings, hence not appealable (Samson vs. Samson, 102 Phil. 735)

6. Grounds for removal of administrator Rule 82 Revocation of Administration,Death, Resignation and Removal of Executors and Administrators Sec. 1. Administration revoked if will discovered. Proceedings thereon. 1. If after letters of administration have been granted as if decedent died intestate, his will is PROVED AND ALLOWED by the court, 2. letters of administration shall be REVOKED and all powers thereunder cease. 3. Administrator shall forthwith a. surrender letters to the court and b. render his account within such time as the court directs 4. Proceedings for issuance of letters testamentary or of administration will follow. Sec. 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal. Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent as to who may seek with the court the removal of the administrator, a creditor, even a contingent one, would have the personality to seek such relief. After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009) Sec. 3. Acts before revocation, resignation, or removal to be valid. Effect of revocation, resignation or removal of executor or administrator on his previous acts – lawful acts shall have same validity as if no revocation, resignation or removal. •

Rule on Precedence of Probate of Will Sec. 1, Rule 82 was followed in Uriarte vs. CFI of Negros Occidental: 1. If in the course of intestate proceedings, it is found out that decedent left a last will, 2. probate proceedings should REPLACE intestate proceedings 3. even if at that stage an administrator had already been appointed. 4. Administrator is required to – a. render final account b. turn over estate in his possession to executor subsequently appointed 5. Without prejudice that proceeding shall continue as intestacy should alleged will be rejected or disapproved.

Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes precedence over intestate proceedings. •

WHAT TO DO WITH PROCEEDINGS – DISCRETIONARY WITH COURT

Whether intestate proceedings already commenced should be discontinued and a new proceeding under a separate number and title should be constituted – entirely a MATTER OF

18 FORM and lies within SOUND DISCRETION of court. Does not prejudice substantial rights of heirs and creditors (Intestate Estate of Wolfson, 45 SCRA 381).

F. Claims Against the Estate Rule 86 Claims against Estate • Notice to creditors – immediately after granting letters testamentary or of administration, court shall issue - NOTICE requiring all persons having MONEY CLAIMS against the estate - to FILE them in the office of the clerk of court (Sec. 1).

1. Time within which claims shall be filed; exception • Time for filing claims – not more than 12 months nor less than 6 months after date of FIRST PUBLICATION of the notice (Sec. 2). •

New period allowed (Sec. 2, second sentence)

At any time before order of distribution is entered, creditor who failed to file his claim within the time set may move to be allowed to file such claim. Court may for good cause shown and on such terms as are just allow such claim to be filed within a period NOT EXCEEDING ONE MONTH. One month does not commence from expiration of the original period for filing claims. It begins from the date of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA 620).

2. Statute of Non-Claims • Statute of Non-Claims (SNC) – the period fixed for the filing of claims against the estate. 1. Period fixed by probate court must not be less than 6 months nor more than 12 months from the date of first publication of the notice. 2. Such period once fixed by the court is MANDATORY – it cannot be shortened. ex. Period fixed within 6 months 3. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be barred by SNC. • Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of deceased persons for the benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or LEGACY after the debts and expenses of administration have been PAID (Sikat vs. Villanueva, 57 Phil. 486). • Publication of notice to creditors (Sec. 3) Immediately after notice to creditors is issued, executor or administrator shall cause 1. publication of said notice 3 weeks successively in newspaper of general circulation in the province, and 2. posting for the same period in a. 4 public places in the province and b. 2 public places in the municipality where decedent last resided PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE WHOLE WORLD

19 Hence, creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground that he had no knowledge of the administration proceedings (Villanueva vs. PNB, 9 SCRA 145). •

Claims that must be filed (Sec. 5) 1. Claims for money against the decedent arising from contract, express or implied, whether due, not due or contingent 2. Claims for funeral expenses and expenses for last sickness of decedent 3. Judgment for money against decedent a. The judgment must be presented as a claim against the estate where the judgment debtor dies before levy on execution of his properties (Evangelista vs. La Provedra, 38 SCRA 379). b. When the action is for recovery of money arising from contract, and defendant dies before entry of final judgment, it shall not be dismissed but shall be allowed to continue until entry of final judgment. A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3, Sec. 20).

•

Money claims against a deceased debtor

1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor. Those claims are not actually extinguished. What is extinguished is only the obligee’s action or suit filed before the court, which is not then acting as a probate court. In the present case, whatever monetary liabilities or obligations Santos had under his contracts with respondent were not intransmissible by their nature, by stipulation, or by provision of law. Hence, his death did not result in the extinguishment of those obligations or liabilities, which merely passed on to his estate. Death is not a defense that he or his estate can set up to wipe out the obligations under the performance bond. (Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass Corporation, G.R. No. 147561, June, 2006) 2. Respondents’ monetary claim shall be governed by Section 20 (then Section 21), Rule 3 In relation to Section 5, Rule 86 of the Rules of Court. Thus, said money claims must be filed against the estate of petitioner Melencio Gabriel. (Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007) •

Must be filed within the time limited in the notice, otherwise they are BARRED FOREVER.

Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may bring against the claimants. •

Rationale: 1) to protect the estate of the deceased by informing the executor or administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed; 2) speedy settlement of affairs of deceased; and 3) early delivery of property to distributes, legatees, or heirs (Union Bank of the Philippines vs. Santibaňez, G.R. No. 149926, February 23, 2005).

A money claim against an estate is more akin to a motion for creditors' claims to be recognized and taken into consideration in the proper disposition of the properties of the estate. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, herein petitioner's contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. (Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007)

20

•

Only MONEY CLAIMS may be presented in the testate or intestate proceedings.

•

NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by decedent before his death.

•

Claims arising after his death cannot be presented EXCEPT - funeral expenses - expenses for last sickness

N.B. Claims arising after decedent’s death may be allowed as expenses of administration. •

Enumeration exclusive – refers only to contractual money claims

Only claims for money, debt or interest thereon, arising from contract can be presented in the testate or intestate proceedings. •

Claims which survive death of accused

Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source of obligation other than delict (contract, law, quasi-contract, quasi-delict) Separate civil action may be enforced either against a. Estate of accused (contract) b. Executor/ administrator (law, quasi-contract, quasi-delict) (People vs. Bayotas, 236 SCRA 239 [1994]). Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86. These actions, being civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1, Rule 87.. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009) •

Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper remedy to enforce payment; claimant should PRESENT CLAIM before probate court (Domingo vs. Garlitos, June 29, 1963). •

Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER OF RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).

•

Ordinary action for collection not allowed (Nacar vs. Nistal, 119 SCRA 29)

•

Judgment appealable (Sec. 13) – judgment of the court approving or disapproving a claim is APPEALABLE as in ordinary actions

3. Claim of executor or administrator against the estate Rule 86, Sec. 8 1. If the executor or administrator has a claim against the estate he represents, 2. he shall give notice thereof, in writing, to the court 3. the court shall appoint a special administrator, and 4. the special administrator shall, in the adjustment of such claim, have the same

21 power and be subject to the same liability as the general administrator or executor in the settlement of the estate From an estate proceeding perspective, the Special Administrator’s commission is no less a claim against the estate than a claim that third parties may make. xxx The ruling on the extent of the Special Administrator’s commission – effectively, a claim by the special administrator against the estate – is the lower court’s last word on the matter and one that is appealable. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)

4. Payment of debts Rule 88 Payment of debts of the estate Sec. 1. Debts paid in full if estate sufficient Sec. 2. Part of estate from which debt paid when provision made by will. Sec. 7. Order of payment if estate insolvent - follow preference of credits under Arts. 1059, 2239-2251 of Civil Code •

TIME FOR PAYING DEBTS (Secs. 15 & 16) 1. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1 year. 2. Extendible (on application of executor/ administrator and after notice and hearing) – not exceeding 6 months for a single extension. 3. Whole period allowed to original executor/administrator shall not exceed 2 years. 4. Successor of dead executor/administrator may have time extended on notice not exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to original executor/administrator. Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have been in possession.

1. Where devisees, legatees or heirs have entered into possession or the estate before debts and expenses settled and paid, and 2. have become liable to contribute for payment of such debts and expenses, 3. Court may, after hearing, order settlement of their several liabilities and order how much and in what manner each person shall contribute and may issue execution as circumstances require. NOTE: This provision clearly authorizes execution to enforce payment of the debts of the estate. Legacy is not a debt of the estate – legatees are among those against whom execution is authorized to be issued (Pastor vs. CA, 122 SCRA 885 [1983]). Compare to:

Rule 88, Secs. 15 & 16 Rule 89, Secs. 1-5, 7 (a) referring to payment of debts and/or legacies

As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation of estate (determination of assets of estate and payment of debts and expenses) before apportionment and distributed of residue among heirs; legatees and devisees.

22 Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should be paid before order of distribution – only debts, funeral charges, expenses of administration, allowance to widow and inheritance tax. After debts and expenses of administration paid, residue given to heirs and those entitled by way of inheritance or legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose of administration – distribution of residue among heirs and legatees after payment of debts and expenses (Luzon Surety vs. Quebrar, 127 SCRA 301). •

Writ of execution not proper procedure for payment of debts and expenses of administration

Upon motion of the administrator with notice to all heirs, legatees and devisees residing in the Philippines, court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts and expenses of administration out of the proceeds of the sale or mortgage. Exception: where devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and expenses (See Sec. 6, Rule 88 above).

G. Actions by and against Executors and Administrators Rule 87 Actions by and against executors and administrators

1.

Actions that administrators

may

be

brought

against

executors

and

Sec. 1. Actions which may and which may not be brought against executor or administrator. Sec. 2. Executor or administrator may bring or defend actions which survive. 1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of money or debt or interest thereon. - MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86) 2. ALLOWED – actions which survive a. Actions to recover real or personal property or interest thereon, or to enforce a lien thereon Civil Case No. 2570 is an action for quieting of title with damages which is an action involving real property. It is an action that survives pursuant to Section 1, Rule 87 as the claim is not extinguished by the death of a party. (Saligumba vs. Palanog, G.R. No. 143365, December 4, 2008) Civil Case No. 3488, which is an action for the recovery of Aa personal property, a motor vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not extinguished by the death of a party. (Sarsaba vs. Vda. de Te, G.R. No. 175910, July 30, 2009) b. Actions to recover damages for an injury to person or property, real or personal

23 • Executor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650). • Any action affecting the property rights of a deceased which may be brought by or against him if he were alive, may be instituted and prosecuted by or against the administrator, unless by its very nature, it cannot survive, because death extinguishes such right. Sec. 3. Heir (and devisee) may not sue (executor or administrator to recover title or possession or for damages to property) until share assigned. Before distribution is made or before any residue known – heirs and devisees have NO CAUSE OF ACTION against the administrator for recovery of property left by the deceased (Lao vs. Dee, 90 Phil. 868). •

When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property rights of the deceased. Exceptions: 1. Pending the filing of administration proceedings – under Art, 777, rights to succession are transmitted from the moment of death of the decedent. 2. Administration proceedings have already been commenced but administrator has not yet been appointed. 3. Executor or administrator is unwilling or refuses to bring suit. 4. Administrator is alleged to have participated in the act complained of and he is made a party defendant. Sec. 8. Embezzlement before letters issued. •

Double value rule

If before grant of letters testamentary or of administration, a person embezzles or alienates money or property of the deceased – liable to an action in favor of executor/administrator for DOUBLE THE VALUE of the property sold, embezzled or alienated.

3. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased Sec. 10. When creditor may bring action. Lien for costs. When there is 1. Deficiency of assets 2. Deceased in his lifetime had made or attempted such a conveyance (with intent to defraud creditors or to avoid any right, debt or duty) as stated in Sec. 9, and 3. Executor or administrator has not commenced the action provided in Sec. 9 (entitled Property fraudulently conveyed by the deceased may be recovered. When executor or administrator must bring action)  Any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted reconveyance for the benefit of the creditors.

24 o Creditor should file a BOND executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. o Creditor shall have a LIEN upon any judgment recovered by him for reasonable costs and expenses  When conveyance or attempted conveyance made by deceased in his lifetime in favor of the executor or administrator, action shall be in the name of all the creditors and permission of the court and filing of bond not necessary

H. Distribution and Partition Rule 90 Distribution and partition of estate Sec. 1. When order for distribution of residue made •

General rule: distribution of the residue to persons entitled thereto after notice and hearing and after payment of – a. debts b. funeral charges c. expenses of administration d. allowance to widow e. inheritance tax Exception: distribution before payment of obligations provided distributees give BOND conditioned for payment thereof within such time as court directs.

1. Liquidation •

Requisites before distribution of estate 1. Liquidation - determination of all assets of the estate and payment of all debts and expenses 2. Declaration of heirs – to determine to whom residue of the estate should be distributed. Separate action for declaration of heirs not proper.

The Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes. (Heirs of Doronio versus Heirs of Doronio, G.R. No. 169454, December 27, 2007)

2. Project of partition WHEN PROBATE COURT LOSES JURISDICTION Project of partition – Towards the end of the proceedings in a settlement of estate petition, a project of partition is usually prepared and presented to the court. The project of partition is a proposal for distribution of the hereditary estimates and determines the persons entitled thereto (Moran, Comments on the Rules of Court, 1997 ed., Vol. 3, pp. 688-689)

25 Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding (Timbol vs. Cano, 1 SCRA 1271). Probate court loses jurisdiction of an estate under administration only AFTER payment of all debts and remaining estate DELIVERED to heirs entitled to receive the same (Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111 A judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period has not closed (Mari vs. Bonilla, 83 SCRA 1137). The RTC of Makati, acting as a special commercial court, has no jurisdiction to settle, partition, and distribute the estate of a deceased. A probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered, divided up, and distributed. Beyond this, the determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of collation or advancement. (Reyes vs. RTC Makati, Branch 142, G.R. No. 165744, August 11, 2008) Partial distribution of the estate should not have been allowed. There was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire estate. (Quasha Ancheta Pena and Nolasco Law Office vs. LCN Construction Corp., G.R. No. 174873, August 26, 2008) Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned, the law allows a co-owner to exercise rights of ownership over such inchoate right. Once an action for the settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court. And not even the administrator may take possession of any property that is part of the estate without the prior authority of the Court. (Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)

3. Remedy of heir entitled to residue but not given his share To demand his share through a. a proper motion in the same probate or administration proceedings, OR b. motion to reopen if it had already been closed, and not through an independent action which would be tried by another court or judge which might reverse a decision or order of the probate court already final and executed and reshuffle properties long ago distributed and disposed of (Guilas vs. Judge of CFI of Pampanga, infra). •

Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez, Divinagracia vs. Rovira, Guillas vs. Judge of CFI of Pampanga and Heirs of Jesus Fran vs. Salas.

•

Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ):

Both involved the issue of the reglementary period within which NON-PARTIES to the partition, heir, devisee or any person interested in the estate, can reopen the case. Conclusion – if proceeding already closed, motion to reopen may be filed by a nonparty deprived of his lawful participation, as long as it is within 30 days (now 15 days) or before order closing the proceedings becomes final.

26 •

Guilas

(43

SCRA

111)

compared

to

Fran

(210

SCRA

303):

Both involved PARTIES who have not received their shares. Conclusion – parties to partition agreement who have not received their shares can file a motion for execution within 5 YEARS. But if other grounds such as forgery of will are raised, final judgment cannot be attacked except through a separate action. The validity of a final judgment can be assailed through a petition for relief under Rule 38, annulment of judgment under Rule 47, and petition for certiorari under Rule 65, assuming the judgment is void for want of jurisdiction. REMEDY OF PRETERITED HEIR The intestate proceedings, although closed and terminated, can still be opened within the prescriptive period upon petition by the preterited heir (Solivio vs. CA, 182 SCRA 1199) Prescriptive period – 10 years. Action upon an obligation created by law must be brought within 10 years from the time the right of action accrues (Art. 1144, Civil Code). •

Where judgment has become final, what is the remedy for inclusion of a partyheir?

After the decision became final and executory, the trial judge lost jurisdiction over the case. Any modification that he would make, i.e., the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary is to file an INDEPENDENT SUIT against the parties and all other heirs for her share in the subject property, in order that all the parties in interest can prove their respective claims (Nunal vs. CA, 221 SCRA 26 [1991]).

4. Instances when probate court may issue writ of execution As a general rule, a probate court cannot issue a writ of execution. Exceptions: 1. To satisfy the distributive shares of devisees, legatees and heirs in possession of the decedent’s assets 2. To enforce payment of the expenses of partition 3, To satisfy the costs when a person is cited for examination in probate proceedings SEVEN STAGES IN SETTLEMENT OF ESTATE 1. Petition 2. Hearing 3. Court Order 4. Claims Against Estate 5. Payment of Debts of Estate 6. Distribution and Partition of Estate 7. Closing SETTLEMENT OF ESTATE STAGES I PETITION

27 Testate

Intestate

Filing of petition for allowance of will – by executor, devisee, legatee, other interested person (Rule 76, Secs. 1 & 2)

Filing of petition for issuance of letters of administration person (Rule 79, Sec. 2)

Order setting petition for hearing Notice of hearing 1. Publication of notice for three consecutive weeks (Rule 76, Sec. 3) 2. Notice by mail or personally to designated or known heirs, legatees, devisees, executor (Rule 76, Sec. 4); known heirs, creditors, other interested persons (Rule 79, Sec. 3)

II HEARING Proof of notice of hearing (Rule 76, Sec. 5) (Rule 79, Sec. 5) Evidence for petitioner 1. 2. Testimony/ies of subscribing witness/es (Rule 76 Secs. 5 & 11)

Death of decedent Residence at time of death Decedent left no will or there is no competent and willing executor (Rule 79, Sec. 5) Petitioner is qualified for appointment (Rule 78, Secs. 1 & 6)

Proof when testator is petitioner (Rule 76, Sec. 12)

28 Evidence for Oppositor File grounds for contest (Rule 76, Sec. 10)

III COURT ORDER Order or decision allowing will or admitting it to probate Certificate of allowance attached to prove will (Rule 76, Sec. 13) Order for issuance of letters testamentary (Rule 78, Sec. 4) Order for issuance of letters of administration (Rule 79, Sec. 5) Issuance of letters by clerk of court Oath of executor or administrator Filing of executor or administrator’s bond (Rule 81, Sec. 1) Filing of inventory within 3 mos. (Rule 81, Sec. 1[a]) Accounting within 1 year (Rule 81, Sec. 1 [c]; Rule 85, Sec. 8) Actions by or against executor or administrator (Rule 87)

IV

29 CLAIMS AGAINST ESTATE Notice of filing of claims – time for filing not more than 12 mos. nor less than 6 mos. from first publication (Rule 86, Secs. 1 & 2) Publication of notice for 3 consecutive weeks and posting (Rule 86, Secs. 3 & 4) Filing of claim and answer thereto (Rule 86, Secs. 9 & 10) Trial of contested claim (Rule 86, Sec. 12) Judgment approving or disapproving claim (Rule 86, Sec. 13) V PAYMENT OF DEBTS OF ESTATE Debts paid in full if estate sufficient (Rule 88, Sec. 1) Order of payment if estate insolvent (Rule 88, Sec. 7) Order for payment of debts (Rule 88, Sec. 11) Time for payment not to exceed 1 year, extendible for 1 more year (Rule 88, Sec. 15) Sales, mortgages and other encumbrances of property of decedent for paying debts. etc. (Rule 89)

VI DISTRIBUTION AND PARTITION OF ESTATE Rule 90

30 Approval of final accounting and project of partition Actual distribution or delivery to heirs of their respective shares

VII CLOSING Order declaring proceedings closed and terminated -------------------------------------------------

I. Trustees Rule 98 Trustees Sec. 1. When trustee appointed 1. 2. 3.

A trustee necessary to carry into effect the provisions of a a. Will b. Written instrument shall be appointed by the RTC in which the will is allowed, or RTC of the province in which the property or some portion thereof affected by the trust is situated

•

Trust defined A trust is a confidence reposed in one person, called the trustee, for the benefit of another called the cestui que trust, with respect to property held by the former for the benefit of the latter. •

Exercise of sound judgment by the court in the appointment of a trustee

Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will – where a trust is actually created by the will by the provision that certain of the property shall be kept together undisposed during a fixed period and for a stated purpose (Lorenzo v. Posadas, 64 Phil. 353). •

Acquiring the trust by prescription

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 qui trust (Salinas vs. Tuazon, 55 Phil. 729).  Rule 98 applies only to express trust, one which is created by will or written instrument, and not to an implied trust, which is deducible from the nature of the transaction as a matter of intent, or which are superinduced on the transaction by operation of law as matters of equity, independent of the particular intention of the parties (O’Lao vs Co Co Chit, 220 SCRA 656).

31

1. Distinguished from executor/administrator A trustee, like an executor or administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. Distinction: (1) duties of executors or administrators are fixed and/or limited by law while those of the trustee of an express trust are usually governed by the intention of the trustor or the parties, if established by contract; (2) duties of trustees may cover a wider range than those of executors or administrators of the estate of deceased persons. (Araneta vs. Perez, G.R. Nos. L-16185-86, May 31, 1962).

2. Conditions of the bond The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Failure to do so shall be cosidered as declining or resigning the trust. Conditions of the bond: 1. Make and return to the court a true inventory of all real and personal estate that at the time of the inventory shall have come to his possession or knowledge 2. Manage and dispose of all such estate according to law and the will of the testator or provisions of the instrument or order under which he was appointed 3. Render a true account of the property in his hands 4. At the expiration of the trust, settle his accounts 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 thereto

3. Grounds for removal and resignation of a trustee The court may remove a trustee on the following grounds: 1. The removal appears essential in the interest of the petitioners 2. The trustee is insane 3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper so allow such resignation

4. Extent of authority of trustee a. The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines. This is based on the principle that his authority cannot extend beyond the jurisdiction of the country under whose courts he was appointed. b. In the execution of trusts, the trustee is bound to comply with the directions contained in the trust instrument defining the extent and limits of his authority, and the nature of his power and duties.

J. Escheat Rule 91 Escheat •

Escheat defined

Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines, who died without leaving any will or legal heirs, become the property of the state upon his death.

32 •

Nature of Escheat Proceedings -

•

rests on the principle of ultimate ownership by the state of all property within its jurisdiction.

Parties in Escheat Proceedings

An escheat proceeding is 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 opportunity to present their valid claims; otherwise, it will be reverted to the state.

1. When to file 2. Requisites for filing of petition •

Requisites for filing petition for escheat 1. person died intestate 2. he left properties in the Philippines 3. he left no heirs or persons entitled to the same.

•

Where to file Regional Trial Court of the place where the deceased was resident, or in which he had estste, if he was a nonresident.

•

Parties in a petition for escheat Escheat proceeding must be initiated by the Solicitor General. All interested parties, especially the actual occupant and the adjacent lot owners shall be personally notified of the proceedings and given the opportunity to present their vaid claims, otherwise the property will be reverted to the State (Tan vs. City of Davao, G.R. No. L-44347, September 26, 1988).

•

Notice and Publication (Sec. 2, Rule 91) 1. 2.

•

Date of hearing not more than 6 months after entry of order. Publication of order at least once a week for 6 consecutive weeks in newspaper of general circulation in the province.

Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with which affects the validity of the proceedings (Divino v. Hilario, 62 Phil. 926). •

Escheat of unclaimed balances

Unclaimed balances which include credits or deposits of money, bullion, security or other evidence of indebtedness of any kind, and interest thereon with banks in favor of any person unheard from for a period of ten (10) years of more, together with the interest and proceeds thereof shall be deposited with the Insular Government of the Philippines as the Philippine Legislature may direct (Act No. 3936, Unclaimed Balances Act, Sec. 1)

33 Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the People of the Philippines in the Regional Trial Court of the province where the bank is located, in which shall be joined as parties the bank and such creditors or depositors. All or any member of such creditors or depositors or banks, may be included in one action. (Id., Sec. 3; Republic vs. Court of First Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988)

3. Remedy of respondent against petition; period for filing a claim Remedy of respondent against escheat petition Motion to dismiss for failure to state a cause of action. where petition for escheat does not state facts which entitle petitioner to the remedy prayed for (Go Poco Grocery vs. Pacific Biscuit Co., 65 Phil. 443; Rep. vs, PNB, G.R. No. L-16016, Dec. 30, 1961); or other grounds for dismissal under the rules (Municipal Council of San Pedro, Laguna vs. Colegio de San Jose, 65 Phil. 318). Filing of claim to estate (Sec. 4, Rule 91) 1. Devisee, legatee, widow, widower or other person entitled to such estate who 2. appears and files claim thereto within 5 years from date of judgment (Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment.) 3. shall have possession and title thereto or if sold, municipality or city accountable to him for proceeds, after deducting reasonable charges of care of estate. 4. Claim not made within said time barred forever.

K. Guardianship • Guardianship – a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. The person who acts is called the guardian and the incompetent is called the ward. •

Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting the rights of persons or individuals who because of age or incapability are in an unfavorable position vis-à-vis other parties. • Purpose of Guardianship Safeguard the rights and interests of minors and incompetent persons Courts should be vigilant to see that the rights of such persons are properly protected. •

Guardian – a person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane, or other person incapable of managing his own affairs.

1. General powers and duties of guardians a. Care and custody of person of the ward and b. Management of his estate, or c. Management of his estate only d. The guardian of the estate of a non-resident shall have the management of his estate within the Philippines, and no other court than that in which such guardian was appointed shall have jurisdiction over the guardianship (Sec. 1, Rule 96)

34 KINDS OF GUARDIANS 1) Legal Guardian – such by provision of law without the need for judicial appointment, as in the case of the parents over the persons of their minor children, or in his absence the mother, with respect to the property of the minor children not exceeding P50,000 in value; (2) Guardian ad litem, who is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor; (3) the Judicial guardian, or a person appointed by the court for the person and/or property of the ward to represent the latter in all civil acts and litigation . •

Parents as guardians

When the property of the child under parental authority is worth P2,000.00 or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than P2,000.00, the father or the mother shall be considered guardian of the child’s property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable person.(Sec. 7, Rule 93) • Bond of parents as guardians of property of minor. If the market value of the property or the annual income of the child exceeds P50,000.00, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. ( Sec. 16, RGM)

2. Conditions of the bond of the guardian (a) Within 3 months after the issuance of letters of guardianship make inventory of all the property; (b) faithfully execute the duties of the trust; (c) render a true and just account of all the property of the ward; and (d) perform all orders of the court (Sec. 1, Rule 94)

3. Rule on guardianship over minors •Governing rule on guardianship of minors Guardianship of minors as distinguished from “incompetents” other than minority is now governed by the RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC). Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over the person, property or both, of a minor. Petitions for guardianship of incompetents who are not minors shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Courts. Rules 92-97 may therefore be deemed modified by the RGM. •

Who may petition for appointment of guardian of incompetent ? (Sec. 1, Rule 93)

Relative, friend, or other person on behalf of incompetent who has no parent or lawful guardian, for the appointment of a general guardian for the person or estate or both of such incompetent. •

Who may petition for appointment of guardian of minor? (Sec. 2, RGM)

1. Relative or other person on behalf of the minor 2. Minor himself if 14 years of age or over

35 for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and Secretary of Health in the case of an insane minor person who needs to be hospitalized. • Jurisdictional facts (Sec. 2, Rule 93) 1. incompetency of person for whom guardianship is sought; 2. domicile •

Notice of application and hearing (Sec. 3) – NO PUBLICATION REQUIRED

Notice of hearing of the petition shall be served on 1. persons mentioned in the petition residing in the Philippines; 2. incompetent himself * minor if 14 years of age or over (Sec. 8, RGM) NOTICE IS JURISDICTIONAL Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional. Without such notice, the court acquired no jurisdiction to appoint a guardian (Nery vs. Lorenzo, 44 SCRA 431 [1972]). The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. The reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith. (Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008)

L. Adoption •

Nature and concept of adoption

Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. •

Purpose of Adoption

Adoption used to be for the benefit of the adoptor. It was intended to afford persons who have no child of their own the consolation of having one by creating thru legal fiction the relation of paternity and filiation where none exists by blood relationship. Present tendency – more toward the promotion of the welfare of the child, and enhancement of his opportunities for a useful and happy life. Under the law now in force, having legitimate, legitimated, acknowledged natural children or children by legal fiction is no longer a ground for disqualification to adopt. •

Objectives of Rule on Adoption a. Best interests of child – paramount consideration in all matters relating to his care, custody and adoption. b. The state shall provide alternative protection and assistance thru foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned.

36 •

Laws on adoption

The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA 8043 (Inter-Country Adoption Act of 1995). • Rule on Adoption (A.M. No. 02-6-02-SC), August 22, 2002 – Guidelines issued by the Supreme Court in petitions for adoption. The Rule repealed Rules 99-100. It covers domestic adoption (Secs. 1-25) and inter-country adoption (Secs. 26-32).

1. Distinguish domestic adoption from inter-country adoption

KIND

Domestic Adoption

Inter-country Adoption

Type of Proceeding

Judicial Adoption

Extrajudicial Adoption

Who may adopt

The following may adopt: (a) Any Filipino citizen; (b) Any alien possessing the same qualifications as above stated for Filipino nationals; (c)The guardian with respect to the ward.

An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child.

Who may be adopted

The following may be adopted: Only a legally free child may (a) Any person below eighteen be the subject of inter-country (18) years of age who has adoption been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died; Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s) (Section 8)

Where to file application

Family Court of the place where RTC having jurisdiction over

37 the adopter resides

the child, or with the InterCountry Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. (Section 10)

What petition for adoption may include

May include prayer for change of Only petition for adoption. name, rectification of simulated birth or declaration that the child is a foundling, abandoned, dependent or neglected child.

Supervised trial custody

Supervised trial custody period in the Philippines for at least six (6) months (Court may reduce period or exempt parties from trial custody) (Section 12)

Supervised trial custody period in the Philippines for at least six (6) months. (Section 14)

2. Domestic Adoption •Who may adopt 1. Any FILIPINO - 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 - emotionally and psychologically capable of caring for children - at least 16 yrs. older than the adoptee * may be waived when adopter is biological parent of adoptee or is spouse of adoptee’s parent - in a position to support and care for his children in keeping with means of the family. 2. Any ALIEN possessing same qualifications, subject to certain conditions. •

HUSBAND AND WIFE MUST JOINTLY ADOPT

EXCEPTIONS: a) if one spouse seeks to adopt legitimate child of the other; b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses signified his consent thereto) 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. •

Whose consent necessary 1. biological parents of adoptee, if known *However, consent of biological parents, even if they are known, is not necessary if they have ABANDONED the child (Lang vs. CA, 298 SCRA 128 [1998]).

38 2. 3. 4. 5. •

adoptee, if 10 years of age or older legitimate or adopted children of adopter or adoptee, if 10 years of age or older illegitimate children of adopter, if living with him, if 10 years of age or older spouse of adopter or adoptee Change of name In case petition also prays for change of name, title or caption must contain: 1. registered name of child 2. aliases of other names by which child has been known 3. full name by which child is to be known

•

PUBLICATION JURISDICTIONAL Adoption is action in rem – involves the status of persons.

•

Decree of Adoption If supervised trial custody SATISFACTORY and - court CONVINCED from trial custody report and evidence adduced that - adoption shall redound to BEST INTERESTS of adoptee - DECREE OF ADOPTION issued which shall take effect as of date original petition filed even if petitioners DIE before issuance

a. effects of adoption (1) For civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and both shall acquire the reciprocal rights and obligations arising from the relationship of parents and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adoped shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parents by nature of the adopted, the parental authority over the adopted shall be exercised jointely by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (Art. 189, Family Code) •

Adoption strictly between adopter and adopted

If adopting parent should die before adopted child, latter cannot represent the adopter in the inheritance from the parents and ascendants of the adopter. Adopted child is not related to the deceased in that case because filiation created by fiction of law is exclusive between adopted and adopter. By adoption, the adopters can make for themselves an heir but they cannot make one for their relatives.(Republic vs. Valencia, G.R. No. L-32181, March 5, 1986) • An illegitimate child, upon adoption by her natural father, may use the surname of her natural mother as her middle name. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.)

b. instances when adoption may be rescinded •

RESCISSION OF ADOPTION BY ADOPTEE

Petition VERIFIED Filed by adoptee - over 18 years of age

39 - with assistance of DSWD, if minor - by guardian or counsel, if over 18 but incapacitated Grounds committed by ADOPTER: 1. repeated physical and verbal maltreatment by adopter despite having undergone counseling 2. attempt on life of adoptee 3. sexual assault or violence 4. abandonment or failure to comply with parental obligations •

Adoption, being for best interests of child, not subject to rescission by ADOPTER

•

Time within which to file petition

If MINOR – within 5 yrs. after reaching age of majority If INCOMPETENT – within 5 yrs. after recovery from incompetency.

c. Effects of rescission of adoption (Rule on Adoption, Sec. 23) (a) parental authority of the biological parent of the adoptee, if known, or the legal custody of DSWD is restored if the adoptee is still a minor or incapacitated; (b) reciprocal rights and obligations of the adopter and adoptee to each other are extinguished; (c) succession rights revert to their status prior to adoption, as of the date of judgment of rescission, but vested rights acquired prior to rescission are to be respected (d) court shall order adoptee to use the name stated In the original birth or foundling certificate (e) court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate the original birth or foundling certificate

3. Inter-country Adoption a. when allowed Inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad is allowed by law if such children cannot be adopted by qualified Filipino citizens or aliens.

b. functions of the RTC (Family Court) A verified petition for inter-country adoption may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. Its functions are (1) receive the application, (b) assess the qualification of the prospective adopter and (3) refer its findings, if favorable, to the Inter-Country Adoption Board. The latter, on its own, however, can receive the original application (RA 8043, Sec. 10; Rule on Adoption, Secs. 28 & 32)) The Inter-Country Adoption Board is the central authority in matters relating to intercountry adoption. It is the policy-making body for purposes of carrying out the provisions of the law, in consultation and coordination with the DSWD, the different child-care and placement agencies, adoptive agencies as well as non-governmental organizations engaged in child care and placement activities (RA 8043, Sec. 4).

c. “best interest of the minor” standard

40 Inter-country adoption is allowed only when the same shall prove beneficial to the child’s best interests, and shall serve and protect his/her fundamental rights (RA 8043, Sec. 2) Only a child legally available for domestic adoption may be the subject of inter-country adoption (Rule on Adoption, Sec. 29). Financial qualification in adoption Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family..(Landingin vs. Republic, G.R. No. 164948, June 27, 2006)

M. Writ of Habeas Corpus Rule 102 Habeas Corpus •

To what habeas corpus extends (Sec. 1) 1. All cases of illegal confinement of detention 2. by which any person is deprived of his liberty, or 3. by which the rightful custody of any person is withheld from the thereto •

person entitled

Purpose of habeas corpus – relieve a person from unlawful restraint.

Specifically: 1. to obtain immediate relief from illegal confinement 2. to liberate those who may be imprisoned without sufficient cause 3. to deliver them from unlawful custody Essentially a writ of inquiry and is granted to test the right under which a person is detained (Velasco v. CA, 245 SCRA 677). It is a remedy intended to determine whether the person under detention is held under lawful authority (Sombong v. CA, 21, 1966). It is a summary remedy. (Caballes vs. CA, G.R. No. 163108, February 23, 2005) When constitutional rights disregarded – writ may issue Exceptional remedy to release a person whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused. That void judgment may be challenged by collateral attack which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of – failure by accused to perfect his appeal before the CA does not preclude recourse to the writ. The writ may be granted upon a judgment already final (Chavez v. CA, 24 SCRA 663 [1968]).

1. Contents of the petition 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 restrained; c. The place where he is so imprisoned or restrained, if known;

41 d. Copy of the commitment or caue of detention of such person. If it can be procured without any legal authority, such fact shall appear. (Sec. 3)

2. Contents of the Return a. Whether he has or has not the party in his custody or power, or under restraint; b. If the party is in his custody or power, or under restraint -- the authority and the true and whole cause thereof, with a copy of the writ, order, execution, or other processes upon which the party is held c. If the party, etc. , and is not produced – nature and gravity of sickness or infirmity d. If the party was in his custody, etc. and has transferred such custody or restraint to another – to whom, at what time, for what cause and by what authority such transfer was made. (Sec. 10)

3. Distinguish peremptory writ from preliminary citation Peremptory writ of habeas corpus – unconditionally commanding the respondent to have the body of the detained person before the court at a time and place therein specified. Preliminary citation – requiring the respondent to appear and show cause why the peremptory writ should not be granted. •

Order to produce body not a grant of the remedy of habeas corpus

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. The respondent must produce the person and explain the cause of his detention. However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. (In the Matter of the Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005

4. When not proper/applicable a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217 [1990]) b. For correcting errors in appreciation of facts and/or in the application of law. It is not a writ of error. (Sotto vs. Director of Prisons, May 30, 1962).

5. When writ disallowed/discharged authorized (Sec. 4) a. When the person alleged to be restrained of his liberty is in the custody of an officer 1. under process issued by a court or judge or 2. by virtue of a judgment or order of a court of record and 3. the court or judge had jurisdiction to issue the process, render the judgment or make the order  the writ shall not be allowed b. When a person is 1. charged with or 2. convicted of an offense or 3. suffering imprisonment under lawful judgment  his discharge shall not be authorized

6. Distinguish from writ of amparo and habeas data (See Table) WRIT OF DEFINITION

HABEAS CORPUS “Habeas corpus” is a

AMPARO It is a remedy available

HABEAS DATA It is a remedy

42

AVAILABILITY

Latin phrase which literally means “you have the body.” It is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof.

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 engaged in the gathering, collecting or storing data or information regarding the person, family, home and correspondence of the aggrieved party.

Sec. 1

Sec. 1

Sec. 1

To all cases of illegal confinement or detention:

To any person whose right to life, liberty and security is violated or threatened with violation 1. By which any person by an unlawful act or is deprived of his liberty; omission of a public or official or employee, or of a private individual or 2. By which the rightful entity. custody of any person is withheld from the person entitled thereto.

To any person whose right to privacy in 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 engaged in: 1. Gathering 2. Collecting 3. Storing Of data or information regarding the person family, home and correspondence of the aggrieved party.

PETITIONER

Sec. 3

Sec. 2

Sec. 2

By the party for whose relief it is intended, or by some other person in his behalf

By the aggrieved party, General rule: or by any qualified person or entity in the The aggrieved party order provided in Sec. 2 Except: In cases of extralegal killings and enforced disappearances: 1. Immediate family;

43 2. In default of no. 1, ascendant, descendant or collateral relative within the 4th civil degree of consanguinity or affinity. VENUE

If filed with RTC, where detainee is detained

Sec. 3

Sec. 3

SC, CA and SB

SC, CA and SB

RTC of the place where the threat, act or omission was committed or any of its elements occurred.

RTC:

. 1. Where petitioner resides; or 2. Where respondent resides; or 3. Which has jurisdiction over the place where data or information is gathered, etc. All at the option of petitioner. EXTENT OF ENFORCEABILITY

SC, CA and SB: anywhere in the Philippines

Anywhere in the Philippines

Anywhere in the Philippines

RTC: only within its judicial district WHEN TO FILE/ EXEMPTION FROM DOCKET FEES

SETTING OF HEARING

HOW SERVED

Sec. 2

Sec. 3

On any day and at any time

On any day and at any time. Petitioner exempt from docket fees

Sec. 12

Sec. 6

Hearing on return

Not later than 7 days Not later than 10 from date of issuance of days from date of writ issuance of writ

Sec. 7

Sec. 8

Sec. 9

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 of service. If that person cannot be found, or has not the prisoner in custody then the service

If the writ cannot be served personally on respondent, the rules on substituted service shall apply

If the writ cannot be served personally on respondent, the rules on substituted service shall apply

Indigent petitioner exempt from docket fees Sec. 7

44 shall be made on any person having or exercising such custody FILING OF RETURN

Sec. 10

Sec. 9

Sec. 9

Signed and shall also Verified written return Verified written return be sworn to if the within 5 work days from within 5 days from prisoner is not produced service of writ service of writ

EFFECT OF FAILURE TO FILE RETURN

PROHIBITED PLEADINGS AND MOTIONS

- cannot be extended except on highly meritorious grounds

-may be reasonably extended by the court for justifiable grounds

Sec. 12

Sec. 14

In case respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte

In case respondent fails to return, the court, justice or judge shall proceed to hear the petition ex parte, granting petitioner such relief as the petition may warrant unless the court in its discretion requires petitioner to submit evidence.

Sec. 11

Sec. 13

(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; (g)Reply; (h) Motion to declare respondent in default; (i)Intervention; (j)Memorandum; (k)Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

(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; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for

45 certiorari, mandamus or prohibition against any interlocutory order. SUMMARY HEARING

Sec. 13

Sec. 15

The hearing on the Same as WOA 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. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. INTERIM RELIEFS

SEC. 12

Sec. 14

1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safekeeping of the person imprisoned or restrained as the nature of the case requires;

(a) Temporary Protection Order. (b) Inspection Order. (c) Production Order. (d) Witness Protection Order.

2. The court or judge must be satisfied that the person's illness is so grave that he cannot be produced without any danger. JUDGMENT

Sec. 15

Sec. 18

Sec. 16

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 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;

Same with WOA with an addition that upon finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within 5 working days.

46 the order has been otherwise, the privilege served on the officer or shall be denied. person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. APPEAL

Sec. 15 in relation to Sec. 19 Sec. 19 Sec. 3 Rule 41 and Sec. 39 of BP 129: Rule 45 by petition for Same as WOA review on certiorari with 48 hours from notice of peculiar features: judgment appealed from by ordinary appeal 1. Appeal may raise questions of fact or law or both; 2. Period of appeal shall be 5 working days from the date of notice of the adverse judgment; 3. Same priority as habeas corpus cases

INSTITUTION OF SEPARATE ACTIONS

EFFECT OF FILING CRIMINAL ACTION

Sec. 21

Sec. 20

This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

Same as WOA

Sec. 2

Sec. 21

When a criminal action Same as WOA has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. CONSOLIDATION

Sec. 23

Sec. 22

When a criminal action Same as WOA 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

47 for a writ of amparo, the latter shall be consolidated with the criminal action.

•

Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be forthwith released (Sec. 15, Rule 102) • Period to appeal – within 48 hours from notice of judgment or final order appealed from (A.M.N. 01-1-03-SC, July 19, 2001). •

Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment. However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876, June 21, 2005; Andal v. People, 307 SCRA 605 [1999]) •

No right to bail where applicant is serving sentence by reason of final judgment

Respondent judge contends that under Section 14, Rule 102 of the Rules of Court, he has the discretion to allow Te to be released on bail. However, the Court reiterates its pronouncement in its Resolution of February 19, 2001 in G.R. Nos. 145715-18 that Section 14, Rule 102 of the Rules of Court applies only to cases where the applicant for the writ of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance, as in the case involved in the present controversy, where the applicant is serving sentence by reason of a final judgment. (Vicente vs. Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 001024-RTJ), June 23, 2005) •

Marital rights including co-venture and living in conjugal dwelling may not be enforced by the extraordinary writ of habeas corpus. (Ilusorio vs. Bildner, et.al., G.R. No. 139808, May 12, 2000)

•

Writ of habeas corpus cannot be issued once person is charged with a criminal offense

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to “all case 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.” The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. (In the Matter of the Petition for Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006) •

Habeas corpus in custody cases

48 Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. (Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006) •

Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271 (1997)

1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425) 2. Filed motion for modification of sentence pursuant to RA 7659 and People v. Simon that where marijuana less than 200 grams penalty is prision correccional 3. Petition granted – provisions of RA 7659 favorable to accused should be given retroactive effect. 4. Where decision already final, appropriate remedy of accused to secure release from prison is petition for habeas corpus •

Bernarte vs. CA, 263 SCRA 323 (1996)

1. Once person detained is duly charged in court, he may no longer question his detention by petition for habeas corpus 2. Remedy: motion to quash the information and/or warrant of arrest 3. Filing of bond for temporary release is waiver of illegality of detention •

Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a ground for habeas corpus. Remedy: motion to quash warrant of arrest and/or information, or ask for investigation/reinvestigation

Note: Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation, provided he raises them BEFORE entering his plea •

Larrañaga vs. CA, 287 SCRA 581 (1998) – Kidnapping & serious illegal detention

1. Filing of charges and issuance of warrant of arrest cures defect of invalid detention 2. Absence of preliminary investigation – will not nullify information and warrant of arrest •

Galvez vs. CA, 237 SCRA 685

1. Habeas corpus and certiorari may be ancillary where necessary to give effect to supervisory power of higher courts 2. Habeas corpus – reaches body and jurisdictional matters but not the records 3. Certiorari – reaches record but not the body 4. Not appropriate for asserting right to bail – file petition to be admitted to bail •

Velasco vs. CA, 245 SCRA 667 (1995) Even if arrest illegal, supervening events may bar his release or discharge from custody, such as filing of complaint and issuance of order denying petition to bail.

49 •

Recent Jurisprudence

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a writ of habeas corpus may be availed of in cases of illegal confinement 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. The writ may also be issued where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess. (In the Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353 in Behalf of Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No. 170497, January 22, 2007) Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and illegal possession of firearms. He is therefore not entitled to the writ of habeas corpus. The rule is that if a person alleged to be restrained of his liberty is in 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 the writ of habeas corpus will not be allowed. (Barredo vs. Vinarao,. G.R. No. 168728, August 2, 2007) Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” includes quasi-judicial bodies or governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in a petition for habeas corpus relates to the release or discharge of the detainee. The general rule is that the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. (Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm. Matter OCA-IPI No. 05-2360-RTJ), August 3, 2007) In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. (In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. Luisa Villanueva, G.R. No. 169482, January 29, 2008) Notably, the record shows that Judge Perello granted the writs of habeas corpus even without the pertinent copies of detention and judgment of conviction. This is contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court. The Rules clearly require that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus. (Office of the Court Administrator vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008) Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the writ. A convict may be released on parole after serving the minimum period of his sentence. However, the pendency of another criminal case is a ground for the disqualification of such convict from being released on parole. (Fletcher vs. The Director of Bureau of Corrections, UDK-14071, July 17, 2009) The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term “court” in this context includes quasi-judicial bodies

50 of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it.(Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009) A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009)

7. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) – took effect May 15, 2003 a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the best interests of the minor. c. However, if it appears that 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 for children. d. The court may 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. •

Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors

There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction to issue writs of habeas corpus involving the custody of minors. (In the Matter of Application for the Issuance of a Writ of Habeas Corpus: Thornton vs. Thornton, G.R. No. 154598, August 16, 2004) In fact, the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. (Madriňan vs. Madriňan, G.R. No. 159374, July 12, 2007)

N. Writ of Amparo (A.M. No. 07-9-12-SC) -

October 24, 2007

1. Coverage (See Table under Definition) •

“Extralegal killings” – killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.

•

“Enforced disappearances” – attended by the following characteristics: 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.

2. Distinguish from habeas corpus and habeas data (See Table)

51 3. Differences between Amparo and search warrant The production order under the Amparo Rule should not be confused with a search warrant or law enforcement under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people as such respondents. Instead, the amparo production order may be limited to the production of documents or things under Sec. 1, Rule 27 of the Rules of Civil Procedure (Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008).

4. Who may file (See Table) 5. Contents of return (a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or security of the aggrieved party, through any act or omisson . (b) Steps or actions taken by the respondent to determine the facts or whereabouts of the aggrieved party and person /s responsible for the threat, act or omission; (c) All relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party; (d) If respondent is a public official or employee, the return shall further state the actions that have been or will be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. A general denial of the allegations in the petition shall not be allowed.

6. Effects of failure to file return (See Table) 7. Omnibus waiver rule Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the return, otherwise, they shall be deemed waived (Sec. 10).

8. Procedure for hearing (See Table on Summary Hearing) 9. Institution of separate action (See Table) 10. Effect of filing of a criminal action (See Table) 11. Consolidation (See Table) 12. Interim reliefs available to petitioner and respondent (See Table) 13. Quantum of proof in application for issuance of Writ of Amparo

52

Burden of proof and standard of dilligence required – The parties shall establish their claims by substantial evidence. Respondent private individual or entity – prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. Respondent public official or employee – prove that extraordinary diligence as required, etc. was observed in the performance of duty. - cannot invoke presumption that official duty has been regularly performed to evade ressponsibility or liability (Sec. 17) •

Writ of Amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings

•

Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. •

Jurisprudence

The threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008) Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo. (Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008) While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life. First, the right to security of person is “freedom from fear.” (Universal Declaration of Human Rights [UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The Philippines is a signatory to both the UDHR and the ICCPR. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. (Article III, Section 12 of the 1987 Constitution) Third, the right to security of person is a guarantee of protection of one’s rights by the government. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. (The Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

53

O. Writ of Habeas Data (A.M. No. 08-1-16-SC)

– February 2, 2008

1. Scope of writ (See Table under Definition) 2. Availability of writ (See Table under Availability) 3. Distinguish from Habeas Corpus and Amparo (See Table) 4. Who may file (See Table) 5. Contents of petition (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, registers 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 for, 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 (Sec. 6).

6. Contents of return (a) Lawful defenses such as national security, state secrets, priviliged communication, confidentiality of the source of information of media and others; (b) If 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 petitioner, nature of such data or information, and purpose of its collection; (ii) steps or actions taken by respondent to ensure the security and confidentiality of the data or information; (iii) currency and accuracy of the data and information held; and (c) other allegations relevant to the resolution of the proceeding; A general denial of the allegations in the petition shall not be allowed.

7. Instances when petition heard in chambers Hearing in chambers may be conducted where respondent invokes the defense that the release of the data or information shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due its nature or privileged character (Sec.12).

8. Consolidation (SeeTable) 9. Effect of filing a criminal action (See Table) 10. Institution of separate action (See Table) •

Jurisprudence

54 Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate facts in a petition for the issuance of a writ of habeas data: Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition” that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. (Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008)

P. Change of Name Rule 103 Change of Name •

Purpose of Rule

Under Art. 376, Civil Code – no person can change his name or surname without juridical authority Involving substantial changes, objective is the prevention of fraud. •

Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal position in, or, with regard to the rest of the community •

Who may file petition “Person” – all natural persons regardless of status 1. Adopted child (Rep. v. Wong, 209 SCRA 189) 2. Alien - - domiciled in the Philippines, not one temporarily staying

•

Jurisdictional requirements 1. Publication of petition for 3 consecutive weeks in newspaper, etc. 2. Both title or caption and body shall recite a. name or names or alias of applicant b. cause for which change of name is sought c. new name asked for

Reason: change of name a matter of public interest - petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison - if alien might have given case for deportation, or subject of deportation order

1. Differences under Rule 103, RA 9048 and Rule 108 Rule 103 Rule or Law

Change of Name

Rule 108

R.A. 9048

Cancellation/ Correction Clerical Error Act of Entries in the Civil Registry

55 Subject Matter

Change of full name or Cancellation or family name (substantial correction of civil corrections) registry entries (substantial corrections)

Change of first name or nickname and corrrection of civil registry entries (only typographical or clerical errors)

Who may File

A person desiring to change his name. (Section 1)

Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname. (Section 3)

Venue

RTC of the province in RTC of city or province which petitioner resided where the for 3 years prior to filing. corresponding civil registry is located.

Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register. (Section 1)

1. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept; 2. Local civil registrar of the place where the interested party is presently residing or domiciled; 3. Philippine Consulate

Contents of petition

(a) That petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of petitioner's name is sought; (c) The name asked for. (Section 2)

(a) Facts necessary to establish the merits of petition; (b) Particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. Petition shall be supported by the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change

56 shall be based; and (3) Other documents which petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of petition. (Section 5) Grounds

1. Name is ridiculous, Upon good and valid tainted with dishonor grounds. and extremely difficult to write of pronounce; 2. Consequence of change of status;

2. The new first name or nickname has been habitually and continuously used by petitioner and he has been publicly known by that first name or nickname in the community; or

3. Necessity to avoid confusion; 4. Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 5. A sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody. Kind of proceeding

Judicial Proceeding

1. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

3. The change will avoid confusion. (Section 4)

Judicial Proceeding

Administrative Proceeding

Adversarial in nature because involves substantial changes and affects the status of an individual What to file

File a signed and verified petition.

File a verified petition for the cancellation or correction of any entry.

File an affidavit.

. Notice and Publication

At least once a week for three consecutive weeks in a newspaper circulation (notice of hearing)

At least once a week for three consecutive weeks in a newspaper of general circulation (notice of hearing)

At least once a week for two consecutive weeks (publish the whole affidavit) – in change of first name or nickname

Posting

No posting

No posting

Duty of the civil registrar or Consul to post petition in a conspicuous place for 10 consecutive days

Who participates on the The Solicitor General or The Civil Registrar. part of the Government the proper provincial or

The CivilRegistrar or Consul.

57 city fiscal shall appear on behalf of the Government of the Republic. Where to appeal:

Appeal decision to the Court of Appeals.

Appeal decision to the Court of Appeals.

Appeal decision to the Civil Registrar General (head of NCSO).

2. Grounds for change of name The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege and not a right, so that before a person can be authorized to change his name, he must show proper or reasonable cause, or any compelling reason which may justify such change. Grounds for change of name which have been held valid: 1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce; 2) Change results as a legal consequence, as in legitimation; 3) Change will avoid confusion; 4) When one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; 5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 6) Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. In the case at bar, the only reason advanced by petitioner for dropping his middle name is convenience (In Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005) •

Other cases

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. The Court will not stand in the way of the reunification of moter and son. (Republic of the Philippines vs. Capote, G.R. No. 157043, February 2, 2007) The court shall grant the petition under Rule 103 only when satisfactory proof has been presented in open court that the order had been published as directed, the allegations in the petition are true, and proper and reasonable causes appear for changing the name of the petitioner. (RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE RTC, BR. 67, PANIQUI, TARLAC, A.M. No. 06-7-414-RTC, October 19, 2007) As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. (Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008)

58

Q. Absentees Rule 107 Absentees

1. Purpose of the rule 2. Who may file; when to file •

Provisional representative When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer property or the power conferred on the agent has expired, an interested party, relative or friend may file a petition in the RTC of the place where the absentee resided before disappearanceo appoint provisionally a representative for him (Sec. 1). • Trustee or administrator After 2 years without any news or after 5 years if an agent was left to administer the absentee’s property, a petition for declaration of absence and appointment of a trustee or administrator may be filed.(Sec. 2) • Notice and publication required Copies of tne notice and hearing shall be served on known heirs and creditors and other interested persons and published once a week for 3 consecutive weeks in a newspaper of general circulation. (Sec. 4) •

Declaration of presumptive death

No independent action for declaration of presumption of death – presumption may arise and be invoked in an action or special proceeding Exception Under Art. 41 of Family Code, for purpose of present spouse contracting a second marriage, he must file summary proceeding for declaration of presumptive death of the absentee, without prejudice to the latter’s reappearance. This is intended to protect present spouse from criminal prosecution for bigamy under Art. 349 of RPC. With judicial declaration that missing spouse is presumptively dead, good faith of present spouse in contracting marriage is established. • -

Period of absence of spouse before subsequent marriage 4 consecutive years – well founded belief that absent spouse already dead 2 years – danger of death

R. Cancellation or Correction of Entries in the Civil Registry Rule 108 Cancellation or correction of entries in the civil registry •

Who may file petition

59 1. Any person interested in any - act - event - decree 2. concerning the civil status of persons 3. which has been recorded in the civil registry •

Venue Regional Trial Court of place where corresponding civil registry is located (Sec. 1) • Correction of entry under Rule 108 proceeding in rem – publication binds the whole world

Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that the trial court is vested with jurisdiction over the subject matter. The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of general circulation in Manila, sufficiently complied with the requirement of due process, the essence of which is an opportunity to be heard. The publication of the order is a notice to all indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment that may be rendered in the petition. (Alba vs. CA, G.R. No. 164041, July 29, 2005) •

Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto. No party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn herself. Her filiation, legitimacy, and date of birth are at stake. The lack of summons on Rosilyn was not cured by the publication of the order of the trial court setting the case for hearing for three consecutive weeks in a newspaper of general circulation. Summons must still be served, not for the purpose of vesting the courts with jurisdiction, but to comply with the requirements of fair play and due process. This is but proper, to afford the person concerned the opportunity to protect her interest if she so chooses. (Ceruila vs. Delantar, G.R. No. 140305, December 9, 2005)

1.Entries subject to cancellation or correction under Rule 108, in relation to RA 9048 •

Administrative correction of clerical or typographical errors

The obvious effect of Republic Act 9048 is merely to make possible the administrative correction of clerical or typographical errors or change of first name or nickname in entries in the civil register, leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate adversarial proceedings. (Republic v. Benemerito G.R. No. 146963, March 15, 2004). •

Change of name under Rule 108

The enactment in March 2001 of Republic Act No. 9048 has been considered to lend legislative affirmation to the judicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 108. When all the procedural requirements under Rule 108 are thus followed, the appropriate

60 adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. With respect to the correction in Carlito’s birth certificate of his name from “Carlito John” to “Carlito,” the same was properly granted under Rule 108 of the Rules of Court. As correctly pointed out by the CA, the cancellation or correction of entries involving changes of name falls under letter “o” of the following provision of Section 2 of Rule 108: “Entries subject to cancellation or correction. — Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: x x x (o) changes of name.” Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with, observance of the provisions of Rule 108 suffices to effect the correction sought for. (Republic vs. Kho, G.R. No. 170340, June 28, 2007) •

No intent on the part of the lawmakers to remove the authority of the trial courts to make judicial corrections of entries in the civil registry

It can thus be concluded that the local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. Since R.A. No. 9048 refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil registry before the courts. ( Re: Final Report on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007). •

Change of first name is within the primary jurisdiction of the local civil registrar

RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial (Silverio vs Republic, G.R. No. 174689, October 22, 2007) •

Change of sex or gender allowed where person has both male and female sexual characteristics

The trial court ordered the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as Congenital Adrenal Hyerplasia (CAH), and her name from “Jennifer” to “Jeff,” under Rules 103 and 108 of the Rules of Court. xxx CAH is one of many conditions that involve intersex anatomy. The term “intersexuality” applies to human beings who cannot be classified as either male or female. We respect respondent’s congenital condition and his mature decision to be a male. As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male (Republic vs. Jennifer Cagandahan, G.R. No. 166676, September 12, 2008). •

A person’s first name cannot be changed on the ground of sex reassignment

61 Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female.” Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. 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. In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. (Silverio vs Republic, G.R. No. 174689, October 22, 2007) •

No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means “to make or set aright; to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute.” 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. While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. (Silverio vs Republic, G.R. No. 174689, October 22, 2007) •

Registered name of illegitimate child

An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. (In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005). •

Other Jurisprudence

Ty Kong Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs. Medina – Rule 108 should be limited solely to implementation of Art. 412, the substantive law on the matter of correcting errors in the civil register. Art. 412 contemplates a summary procedure, involving correction of clerical errors, or a harmless, innocuous nature, not changes involving civil status, nationality or citizenship, which are substantial and/or controversial Rep. vs. Macli-ing – proceedings, although filed under Rule 108, not summary because published for 3 consecutive weeks; SolGen notified and filed opposition, etc.

62 Rep. vs. Valencia (141 SCRA 462 [1986]) – turning point, paradigm shift: Rule 108 embodies two kinds of proceedings: 1. procedure summary in nature for correcting clerical or unsubstantial matters to make it less tedious and expensive 2. procedure adversary in nature to govern proceedings involving substantial changes If all procedural requirements have been followed, petition for cancellation even if filed under Rule 108 no longer summary.

correction/or

Even substantial errors may be corrected and true facts established prov. parties aggrieved by the error avail of the appropriate adversary proceeding. •

Appropriate proceeding: a. where all relevant facts have been fully weighed and considered b. where opposing counsel have been given opportunity to demolish the opposing party’s case c. where evidence has been thoroughly weighed and considered

•

Procedure becomes ADVERSARY proceedings when opposition to petition is filed by LCR or any person having or claiming interest in entries sought to be cancelled and/ or corrected and opposition is actively prosecuted.

•

Substantial corrections allowed: citizenship from Chinese to Filipino; status from legitimate to illegitimate’ status of mother from married to single

•

Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc), Rep. vs. Bautista and Zapanta vs. LCR of Davao

•

Attempts to revert to Ty Kong Tin – Labayo Rowe vs. Rep., Leonor vs. CA and Rep. vs. Labrador However, all doubts resolved in Lee vs. CA (367 SCRA 110 [2001]): 1. Substantial corrections – Rule 108 2. Clerical or typographical errors (including change of first name) – RA 9048 (administrative correction) •

Recent Jurisprudence

“Appropriate adversary proceeding” is “one having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it.” When all the procedural requirements under Rule 108 are thus followed, the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. No substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. (Republic vs. Kho, G.R. No. 170340, June 29, 2007) Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court. (Kilosbayan Foundation vs. Ermita, G.R. No. 177721, July 3, 2007) The local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. (Re: Final

63 Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui, Tarlac, A.M. No. 06-7414-RTC, October 19, 2007) A change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Also, there is no such special law in the Philippines governing sex reassignment and its effects. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. (Silverio vs. Republic, G.R. No. 174689, October 22, 2007) Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. (Republic vs. Cagandahan, G.R. No. 166676, September 12, 2008)

S. Appeal in Special Proceedings Rule 109 Appeals in special proceeding

1. Judgments and orders for which appeal may be taken 2. When to appeal Sec. 1. Any INTERESTED PERSON may appeal from an order or judgment rendered by the RTC, where such order or judgment 1. 2. 3. 4. 5.

6.

Allows or disallows a WILL Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of the estate to which he is entitled Allows or disallows, in whole and any part, any CLAIM against the estate, or any CLAIM presented in behalf of the estate IN OFFSET to any claim against it Settles the ACCOUNT of an executor, administrator, trustee or guardian Constitutes, in proceedings relating to the SETTLEMENT of the estate of the deceased, or the ADMINISTRATION of a trustee or guardian, a FINAL DETERMINATION in the lower court of the rights of the party appealing. Exception: no appeal from appointment of special administrator. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the SUBSTANTIAL RIGHTS of the person appealing. Unless it be an order granting or denying a motion for new trial or reconsideration – Sec. 1 (a), Rule 41: no appeal may be taken from an order denying a motion for new trial or reconsideration. •

In certain kinds of special proceedings, such as settlement of estate, appeal may be taken at various stages of the proceedings.

3. Modes of appeal Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Sec. 2 (applicability of rules of civil actions). If it is an ordinary appeal under Rules 40 or 41, and the special proceedings are

64 subject to multiple appeals, like settlement of estates, the appeal period is 30 days, a notice of appeal and record on appeal being required. The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final. In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies the parties may avail of. Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has been adjudged with finality by the lower court. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)

4. Rule on advance distribution Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90. Rule 90, Sec. 1 - Distribution before payment of obligations is allowed provided distributees give BOND conditioned for payment thereof within such time as court directs.

VENUE OF SPECIAL PROCEEDINGS 1. Settlement of estate (Rule 73): RTC (or MTC) of province where deceased last resided/property situated. 2. Escheat (Rule 91): RTC of province where deceased last resided/property situated. 3. Guardianship: (Rule on Guardianship of Minors [A.M. No. 03-02-05-SC]) Family Court of province or city where minor resides/property situated. Rule 92 RTC of province or city where incompetent resides/property situated. 4.

Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]): Family Court of province or city where prospective adoptive parents reside. Rescission – where adoptee resides.

5.

Habeas Corpus (Rule 102): If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent jurisdiction. However, the writ of habeas corpus issued by the RTC shall be enforceable only within its judicial region (Sec. 21, BP 129). Habeas Corpus for custody of minors: Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309]. However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or any of its members, and the writ shall be enforceable anywhere in the Philippines. 6.

Amparo (A.M. No. 07-9-12-SC) SC, CA and SB

65 RTC of the place where the threat, act or omission was committed or any of its elements occurred 7.

Habeas Data (A.M. No. 08-1-16-SC) SC, CA and SB RTC: 1. Where petitioner resides; or 2. Where respondent resides; or 3. Which has jurisdiction over the place where data or information is gathered, etc. All at the option of petitioner.

6.

Change of name (Rule 103): RTC of province of residence of petitioner.

7.

Absentees (Rule 107): RTC of place where absentee resided before his disappearance.

8.

Cancellation or correction of entries (Rule 108): RTC of place where civil registry is located. Correction of clerical or typographical errors (RA 9048): Local Civil Registrar of place where record is located. Exc. – if impractical in terms of transportation expenses, time and effort as where petitioner has transferred to another place – Local Civil Registrar of petitioner’s residence.