Special Proceedings Memory Aid

REMEDIAL LAW (SPECIAL PROCEEDINGS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002

RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES 1. Special proceedings: a. Settlem Settlement ent of estate estate of decea deceased sed persons persons b. Escheat c. Guardia Guardianshi nship p and and custody custody of children children d. Trustees e. Adoption f. Resci Rescissi ssion on and and rev revoca ocatio tion n of adop adoptio tion n g. Hosp Hospita italiz lizat ation ion of insan insane e patien patientt h. Habe Habeas as corp corpus us i. Change of name j. Volu Volunta ntary ry diss dissolu olutio tion n of corpo corporat ratio ions ns k. Judicial Judicial approv approval al of volunta voluntary ry recogniti recognition on of minor minor natural natural children; children; l. Cons Consti titu tuti tion on of fami family ly home home m. Declara Declaration tion of of absence absence and and death death n. Cancella Cancellation tion of of correctio correction n of entries entries in in civil regist registry ry 2. Civil Civil Action Action distingui distinguished shed from from Specia Speciall Proceedin Proceedings: gs: ACTION To protect or enforce a right, or to prevent or redress a wrong Initiated by Complaint Definite Parties Answer is filed Handled by court of general jurisdiction jurisdicti on

SPECIAL PROCEEDINGS To establish a status, right, or a particular fact Initiated by Petition Definite pe p etitioner, no de d efinite adverse party Opposition is filed Heard by court of limited jurisdiction jurisdicti on

Adversarial

Not adversarial

Statute of Limitations applies

No statute of limitations

15-day appeal period

30-day appeal period

3. Jurisdiction and Venue in Special Proceedings a. Settleme Settlement nt of of estate estate of decea deceased sed persons persons i.

RTC – Gross Gross value value of the the estate estate exceeds exceeds P200 P200,000 ,000/P40 /P400,00 0,000 0

ii. MTC – Gross Gross value value of the estate estate does does not not exceed exceed P200,00 P200,000/P 0/P400 400,000 ,000  

If resident – place where deceased resided at time of death If non-resident – place where deceased had estate

b. Escheat i.

Ordinary escheat proceedings: RTC  

If resident – place where deceased last resided If non-resident – place where he had estate

ii. Reversion of land to State for violation of Constitution / Laws : RTC where land lies in whole or in part iii. Unclaimed deposits (for 10 years): RTC of province where bank is located 

all banks located in 1 province where court is located may be made parties defendant in 1 action.

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c. Guardianship and custody of children : Family Court  

If resident – place where minor/incompetent resides If non-resident – place where minor/incompetent has property

d. Trustees i.

RTC – Gross Gross value value of of the estate estate excee exceeds ds P200, P200,000 000/P40 /P400,00 0,000 0

ii. MTC – Gross Gross value value of the estate estate does does exceed exceed P200,0 P200,000/P 00/P400 400,00 ,000 0  

If will allowed in the Philippines – court where will was allowed If will allowed outside the Philippines – court in place where property is situated

e. Adoption: Regional Trial Court If domestic adoption – place where adopter resides  If inter-country adoption – court who has jurisdiction over the adoptee 

f. Rescission and revocation of adoption: Regional Trial Court g. Hospitalization of insane patient: RTC in place where person alleged to be insane is found h. Habe Habeas as corp corpus us i. SC ii. CA iii. RTC (within (within its its respec respective tive region) region) iv. MTC (in absenc absence e of RTC judges judges in provinc province/ci e/city) ty) Change of name i.

Judicial (Rules of Court): Court): RTC RTC in place where petitioner petitioner resides resides

ii. Admin Administ istrat rative ive (RA 9048 9048): ):  Civil Civil regist registar ar where where entry entry is locat located ed or if appli applican cantt migra migrated ted:: civil civil registar in place where he resides  Consul General: if applicant resides abroad

i. Voluntary dissolution of corporations: SEC j. Constitution of family home: under the Family Code, it is deemed constituted on a house and lot from the time it is occupied as a family residence

k. Declara Declaration tion of absence absence and death: death: RTC in place place where where absen absentee tee reside resided d before his disappearance l.

Cancell Cancellatio ation n of correcti correction on of of entries entries in civil civil registry registry i.

Judicial Judicial (Rules (Rules of Court): Court): RTC RTC in place place where where the civil regis registry try is located located

ii. Admin Administ istrat rative ive (RA 1948 1948): ): 

Civil Civil regist registar ar where where entry entry is locat located ed or if appli applican cantt migra migrated ted:: civil civil registar in place where he resides



Consul General: if applicant resides abroad

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SETTLEMENT OF ESTATE OF DECEASED PERSONS RULE 73 VENUE AND PROCESS 1. When probate passes upon question of title to property:

a. Interested parties who are all heirs consents and 3 rd parties not prejudiced; b. Otherwise Otherwise,, only in a provisio provisional nal manner, manner, to determin determine e whether whether property property should should be included in the inventory, without prejudice to the final determination determination of title in a separate action. 2. When probate courts can issues writs of execution:

a. To satisfy satisfy distribut distributive ive shares shares of the devisees, devisees, legatees legatees,, and heirs in possessio possession n of decedent’s assets; b. To enforce enforce payment payment of of expens expenses es in partit partition; ion; c. To satisfy satisfy costs when a person is cited for for examination examination in probate proceedings. proceedings. d. To satisfy satisfy the claim claim in summary summary settleme settlement nt proceed proceedings ings of creditors creditors or heirs heirs who appear within 2 years from the distribution.

RULE 74 SUMMARY SETTLEMENT OF ESTATES When estate need not be judicially administered through an administrator or executor: 1.

a. Extra Extrajud judici icial al set settle tleme ment nt;; b. Summary Summary settlement settlement of estate estate of small value value (not (not exceeding exceeding P10,000) P10,000) 2. Extrajudicial settlement

a. Does Does not not requir require e court court interven intervention tion;; b. Valu Value e of esta estate te is imma immater terial ial;; c. Allow Allowed ed only only in intes intestat tate e succe successi ssion on;; d. Prope Properr only only where where there there are no outsta outstand ndin ing g debts debts of the estate estate at the time time of settlement; e. Can be resorted to only at the instance and by agreement agreement of all heirs.  If heirs do not agree, they may resort to an action for partition 3. Requisites of a valid extrajudicial settlement:

a. Dece Decede dent nt dies dies intest intestate ate;; b. No outstan outstanding ding debts debts of of the estate estate at the the time of the the settlem settlement; ent; c. Heirs Heirs are all of age age or the minors minors are repres represente ented d by their their judicial judicial guardia guardians ns or legal representatives; d. Settlement Settlement is made made in a public public instrument instrument duly duly filed with with the register of of deeds; deeds;

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e. Fact of settlem settlement ent must must be published published in a newspaper newspaper of general general circulatio circulation n once a week for 3 consecutive weeks. 4. Summary settlement of estates with small value:

a. Involves Involves judicia judiciall adjudicat adjudication ion in a summary summary proceed proceedings ings;; b. Applies Applies only only when when gross estat estate e does not not exceed exceed P10,000 P10,000;; c. Allowed Allowed in in both both testate testate and and intesta intestate te estate estates; s; d. Avai Availa labl ble e even even if ther there e are are debt debts s as the the cour courtt will will make make provi provisi sion ons s for for the the payment thereof.

RULE 75 PRODUCTION AND ALLOWANCE OF WILL 1. Probate of a will – juridical act whereby an instrument is adjudged valid and is ordered to be recorded. 2. No will will to pass property property unless unless proba probated. ted. 3. Custodian is a person chosen in advance and entrusted with the custody of the will. It does not refer to a mere possessor of the will. 4. The The act act pena penali lize zed d in §4 (whe (where re the the cust custod odia ian n and and exec execut utor or is subject subjected ed to a fine for neglect neglect)) is a special special statutory statutory offense offense and is properly prosecuted upon complaint or information as other criminal offenses created by law (US ( US vs. Guimco) Guimco)

RULE 76 ALLOWANCE OR DISALLOWANCE OF A WILL Jurisdictional facts alleged in petition for probate: 1. Jurisdictional a. Perso Person n died died leavin leaving g a will will;; b. In case of a residen resident, t, that he resided resided within within the territo territorial rial jurisdic jurisdiction tion of the court; court; (in (in the the case case of nonnon-re resi side dent nt,, that that he left left an esta estate te with within in such such terri territo tori rial al jurisdiction). 2. Grounds for disallowing will: a. Not execu executed ted and and atteste attested d as requir required ed by law; b. Test Testat ator or was was ment mental ally ly inca incapa paci cita tate ted d to make make a will will or insa insane ne at the the time time of execution; c. Execute Executed d under under duress, duress, influe influence nce of of fear, fear, or threats threats;; d. Procu Procured red by undue undue and and imprope improperr influe influenc nce e and and pressu pressure re on the part part of the the beneficiary or of some other person for his/her benefit; e. Sign Signatu ature re of testato testatorr was was procur procured ed by fraud fraud/tr /trick ick and she/he she/he did not not inten intend d instrument to be will. 3. Differences between between petition for probate filed by third persons, persons, and by testator himself.

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FILED BY THIRD PERSON Notic tice publish ished once a week for for 3 consecutive weeks Personal notice given to designated/known heirs, legatees and devisees

FILED BY TESTATOR HIMSELF Newspaper publication not required Perso Persona nall notic notice e sent sent only only to testa testator tor’s ’s compulsory heirs

4. Contents of petition for probate: a. Juri Jurisd sdic icti tion onal al facts facts;; b. Names, Names, ages ages and residenc residences es of heirs, heirs, legatees legatees,, and devisee devisees; s; c. Probabl Probable e value value and chara character cter of of propert property y of estate estate;; d. Name Name of perso person n for whom whom lette letters rs are prayed; prayed; and and e. If will has not been been deliver delivered ed to the court, court, the name name of the perso person n having having custody of it. 5. How will is proven as lost or destroyed: a. Prov Prove e tha thatt wil will: l: i. Was Was in exist existen ence ce at tim time e of testa testator tor’s ’s deat death, h, OR ii. Was fraudu fraudulent lently ly or accidenta accidentally lly destroye destroyed d in testator’s testator’s lifetime lifetime without without his knowledge; AND b. Provisio Provisions ns of will must must be clearly clearly and distinc distinctly tly proven proven by at least least 2 credible credible witnesses

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE ESTATE THEREUNDER

OF

PHILIPPINES

AND

ADMINISTRATION

OF

1. In re-probate of will proven abroad, proponent must prove: a. Testato Testatorr was domi domicile ciled d in the the foreign foreign country; country; b. Will has has been been admitt admitted ed to proba probate te in such such country country;; c. Fore Foreig ign n coun countr try y was, was, unde underr the the laws laws of such such coun countr try, y, a prob probat ate e cour courtt with with jurisdiction; d. Law on foreign probate procedure and proof proof of of compliance compliance therewith; therewith; e. Legal Legal requirem requirements ents in said said countr country y for valid valid executio execution n of will.

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED 1. The following are disqualified from serving as executors or administrators: a.

A minor;

b. A non non-re -resid siden entt (of (of Phi Phils. ls.)) c. A person person unfit unfit in the opinio opinion n of the court court to execute execute the the duties duties of his trust trust

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2. Requisites for a person to be appointed executor or administrator: a. Acce Accept pts s the the trus trustt b. Give ives a BOND OND c. Competent

RULE 79

OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION LETTERS OF ADMINISTRATION

AND

CONTEST

FOR

1. Contents of petition for issuance of Letters of Administration: a.

Jurisdictional facts;

b.

Name Names, s, ages ages and and res resid iden ence ces s of of hei heirs rs,, and and cred credit itor ors; s;

c.

Prob Probab able le valu value e and and char charac acte terr of of pro prope pert rty y of of est estat ate; e; and and

d.

Name of of pe perso rson fo for wh whom le letters ters are praye rayed d.

NOTE: Essentially the the same as contents contents of petition petition for probate, except: except: (1) latter has an additional requirement (the last; see Rule 76); and (2) in the latter, no need to name creditors in the petition.

RULE 80 SPECIAL ADMINISTRATOR Special Special Adminis Administrato trator r – appo appoin inte ted d when when ther there e is a dela delay y in grant rantin ing g lett letter ers s testamentary testamentary or of administration by any cause, cause , including an appeal from the allowance or disallowance of the will.

RULE 81 BONDS OF EXECUTORS AND ADMINISTRATOR 1. Undertakings of bond of Executor/Administrator: a. Make Make and and retur return n a compl complete ete inven inventor tory y of the propert property y of the estate estate which which has has come to his possession or knowledge, or the possession of any person for him, within 3 months; b. To administ administer er the property property of the estate estate accord according ing to the Rules Rules (if administra administrator) tor) or according to the will (if executor); c. To render render an accoun accountt within 1 year year and at at any other other time require required d by the court; court; and d. Perfo Perform rm all all orde orders rs of of the the court court..

RULE 82

REVOCATION

OF

ADMINISTRATION, DEATH, RESIGNATION,

AND

REMOVAL

OF

EXECUTORS AND ADMINISTRATION 1. Grounds for removal of executors or administrators:

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a. Neglect Neglects s to render render account account and settle settle the estate estate accord according ing to law; law; b. Failure to perform order or judgment judgment of the court or duty prescribed prescribed by by the rules; rules; c. Absconds; d. Beco Become mes s insa insane ne;; e. Incapab Incapable le or unsuita unsuitable ble to to discha discharge rge trust trust..

RULE 83 INVENTORY AND APPRAISAL. PROVISIONS FOR SUPPORT OF FAMILY 1. Properties not to be included in inventory as assets of the estate: a.

Wear Wearin ing g appa appare rell of of surv surviv ivin ing g spo spous use e and and mino minorr chi child ldre ren; n;

b.

Marriage bed and bedding; AN AND

c.

Provis Provision ions s and and articl articles es which which will will neces necessar sarily ily be consu consume med d in the subsistence of the deceased’s family .

RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS 1. General Powers and Duties of Executors and Administrators: a. Have Have access access to partne partnership rship books books and and propert property; y; b. Main Mainta tain in in tena tenant ntab able le repa repair ir the the hous houses es and and othe otherr stru struct ctur ures es and and fenc fences es belonging to the estate and deliver the same to the heirs and devisees when directed to do so by the court; AND

c. Right to the possession and management of the real and personal estate so long as it is necessary for the payment of debt and expenses of administration . 2. How right to have access to partnership books and property enforced: a. On the writte written n applicat application ion of execut executor or or adminis administrato trator r b. Court Court having having jurisdict jurisdiction ion of of the estate estate may may c. Order Order any any such such survivi surviving ng partn partner er or partners partners to: i. Freel Freely y permi permitt the the exer exercis cise e of of the the righ rights ts ii. Exhibit Exhibit the books, books, papers, papers, and property property d. Court Court may also also punish punish any any partner partner failing failing to do so for for contemp contemptt

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS 1. Not proper expenses of administration which are not chargeable to estate: a. Serv Servic ices es ren rende dere red d by adm admin inis istr trat ator or whi which ch are are not not ben benef efic icia iall to the the esta estate te in favor of an heir;

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b.

Premiums fo for he her/his bo bond;

c. him;

Expe Expens nses es for for rep repai airr of pro prope pert rty y of the the esta estate te bei being ng use used d and and occu occupi pied ed by by

d. Expenses ses for kee keeping ing ordin rdina ary reco record rds s and rece receiipts inv involve lved in his his administration; e.

Loss Losses es inc incur urre red d in con condu duct ct of of busi busine ness ss wit with h use use of of fund funds s of of the the est estat ate. e.

2. Options of attorney to collect attorney’s fees from estate:

a.

Sue administrator/executor administrator/executor in the latter’s personal capacity (who may then include any fees so paid in his account); OR

b. File a pe petition in in th the te testate/intestate pr proceedings as asking th the court, after notice to all interested persons, to allow his claim and to direct the executor/administrator to pay it as an expense of administration.

RULE 86 CLAIMS AGAINST ESTATE 1. Notice for filing of claims:

a. Publ Publis ishe hed d once once a week week for for 3 succ succes essi sive ve week week in news newspa pape perr of gene genera rall circulation; b. Posted: i. ii. ii.

In 4 public public place places s in PROV PROVINCE INCE of last last reside residence nce of of decede decedent; nt; In 2 pub publi lic c pla place ces s in MUNI MUNICI CIPA PALI LITY TY of dece decede dent nt’s ’s last last resi reside denc nce. e.

2. Claims which must be filed with the probate court:

a. All claims claims for for money money against against decede decedent nt arising arising from from contract; contract; b. Claims Claims for funera funerall expenses expenses and and for the the last last illness; illness; c. Judg Judgme ment nt for for mon money ey.. 3. Time for filing of claims: Must be filed within the time specified by the court in its notice, which period shall not be less than 6 months nor more than 12 months from the date of the first publication publication of the notice. HOWEVER, HOWEVER, at any time before an an order of distribution distribution is entered, a creditor who failed to file his claim on time may, upon showing good cause, ask the court court to allow him to file his claim. claim. The court may may then allow him to file such claim within a time which shall not exceed 1 month. 4. Alternative remedies available to mortgage creditor upon death of mortgagor: a. Abando Abandon n security security and and prosecute prosecute claim claim in proba probate te court; court;

b. Foreclose mortgage judicially mortgage judicially ; and recover deficiency thru claim in probate court; c. Rely solely on mortgage or security and foreclose the same within statute of limitations, without the right to recover the deficiency

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RULE 87 ACTIONS BY

AND

AGAINST EXECUTORS AND ADMINISTRATORS

1. Actions which may be brought against the executor or administrator: a.

To reco recove verr rea reall or or per perso sona nall pro prope pert rty y or or an an int inter eres estt the there rein in;;

b.

To enforce a lien thereon;

c.

To reco recove verr dam damag ages es for for an an inj injur ury y to pers person on or prop proper erty ty..

2. Requisites for creditor (instead of the executor/administrator) to be able to file an action to recover property fraudulently conveyed by the decedent: a. There There is a deficiency deficiency of assets assets in the hands hands of the executo executor/ad r/admini ministrat strator or for the payment of the debts and expenses; b. The The dece deceas ased ed in his his life lifeti tim me had had made made (or (or atte attemp mpte ted) d) a frau fraudu dule lent nt conveyance conveyance of his property with intent to defraud his creditors, or to avoid any right, debt or duty, or had made any such conveyance conveyance which would be void as against his creditors; c. The subje subject ct of the conv conveya eyanc nce e woul would d be liable liable to attach attachme ment nt by any of the the creditors during the decedent’s lifetime; d. The executo executor/adm r/adminis inistrato tratorr has shown shown to have no desire desire or interest interest to file file the action, or has failed to do so within a reasonable time; e. Leav Leave e of court court is obt obtain ained ed;; f.

A bond bond is filed by by the credito creditorr to indemnif indemnify y the exec/ad exec/admin min agains againstt all costs costs and expenses incurred by reason of the action; and

g. The actio action n is brough broughtt in the name name of of the exec/ exec/adm admin. in. 

HOWE HOWEVE VER, R, if the exec/ exec/ad admi min n was himse himself lf the the trans transfer feree ee of the fraud fraudul ulen entt conveyance, the last 3 requisites are not required, and the action is brought in the name of all the creditors.

RULE 88 PAYMENT OF THE DEBTS

OF THE

ESTATE

1. Order of payment of debts: a. From portion portion of of property property desig designate nated d in the the will; will; b. From persona personall property property not dispo disposed sed of of by will; will; c. From real real propert property y not not dispos disposed ed of of by will. will.

RULE 89 SALES, MORTGAGES , AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT 1. Petition for sale or encumbrance of real property:

a. Persona Personall property property is not sufficie sufficient nt to pay debts, expense expenses s of adminis administrati tration on and legacies, OR

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b. Sale Sale of such personalt personalty y may injure injure business business or interests interests of persons persons interes interested ted in the estate c. Testa Testato torr did not make suffic sufficien ientt provis provision ions s for paymen paymentt of debts, debts, expens expenses es of administration and legacies d. Sale or encumbrance encumbrance would would be beneficial beneficial to parties parties interested interested in the estate. estate. 2.

Reasons to sell personal property:

a. Payment Payment of debts, debts, expenses expenses of of administration administration and and legacies legacies in the Philippines Philippines b. Sale Sale would be be beneficia beneficiall to persons persons interest interested ed in the estat estate; e; c. Paym Paymen entt of debts, debts, expens expenses es and lega legacie cies s invol involve ved d in settlem settlemen entt of estate estate of decedent in a foreign country.

RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE 1. Remedy of heir who has not received his share of the estate:

a.

If excluded from the proceedings :

move for reopening of the proceedings before the order declaring the same closed has become final and executory (after 30 days);

b.

If not excluded, but only has not yet received his distributive share under the project of partition: partition :

remedy is not to move for reopening (since proceedings are only deemed closed upon actual distribution), but to file a motion for execution within the reglementary period (5 years).

RULE 91 ESCHEATS 1. Requisites for petition for escheat escheat a.

Person died intestate;

b.

Person died leaving no heirs; AND

c.

Pers Person on died died leav leavin ing g pro prope pert rtie ies s in in the the Phil Philip ippi pine nes s

2. Notice of hearing to hearing to be published once a week for 6 weeks; Date of hearing shall hearing shall be not more than 6 months from entry of order fixing date of hearing. 3. Disposition of escheated property:

a.

If real – real – to municipalities or cities located;

b. If personal – personal – (1) To city or municipality where decedent last resided in Phils; (2) If decedent decedent never never resided in Phils, Phils, then to municip municipality ality or city where located.

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4. Devisee, legatee, legatee, heir, or any other person entitled entitled to the estate may may file a claim with the court within 5 years from date of the judgment.

GENERAL GUARDIANS AND GUARDIANSHIP RULE 92 VENUE 1. Venue of guardianship proceedings: in RTC of province where the minor or incompetent resides, resides, or if non-resident, non-resident, in any province wherein his property is located 

NOTE: “Residence” means “domicile”.

RULE 93 APPOINTMENT OF GUARDIANS 1. Who may petition for appointment of guardian: a.

Any Any rela relati tive ve,, frien friend d or oth other er per perso son n on beha behalf lf of of the the mino minor/ r/in inco comp mpet eten ent; t;

b.

The minor himself, if 14 or over.

2. Contents of petition: a. Jurisdic Jurisdiction tional al facts; (minority (minority/inc /incomp ompeten etency cy and his domicile) domicile) b. Minori Minority ty or incom incompe pete tency ncy c. Names, Names, ages ages and residence residences s of the relatives relatives of the minor/inc minor/incomp ompeten etent, t, and of the persons having him in their care; d. Probabl Probable e value and and characte characterr of property property of estate estate;; and e. Name Name of person person for whom whom letters letters or guardi guardiansh anship ip are prayed prayed 3. Notice of date and place of hearing to be given to all persons named in the petition residing in the province, and to the minor himself if over 14 (NOTE: not “14 or over”)

RULE 94 BONDS OF GUARDIANS 1. Undertaking of bond of guardian: a. Make and return return a complete complete inventory inventory of the property property of the estate estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months; b.

To fait faithf hfu ully lly exec execut ute e the the duti duties es of his his tru trus st;

c.

To re render a true an and just ac account; an and

d.

Perform al all or orders of of th the co court.

2. Bond may be proceeded proceeded against in the same or separate separate proceeding for the use and benefit of the ward, or of any other person legally interested in the estate.

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RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD 1. When real property of ward may be sold or encumbered: a. When When inc incom ome e of ward ward’s ’s est estat ate e is insu insuff ffic icie ient nt to mai maint ntai ain n ward ward and and his his family (if incompetent), or to maintain and educate the ward (if minor); b. 

When it appears benefic ficial ial to the the ward

Guardian shall then file a verified petition setting forth such facts and praying for the authority to make such sale or encumbrance

2. Order granting the authority to sell shall last for only 1 year.

RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS 1. Every guardian, guardian, other than the the ward’s parents, shall shall be allowed the amount amount of his reasonable expenses, and compensation which shall not exceed 15% of the NET income of the estate.

RULE 97 TERMINATION OF GUARDIANSHIP 1. Grounds for removal of a guardian: a. Insanity; b. Become Becomes s incapa incapable ble of discharg discharging ing his his trust; trust; c. Waste Waste/m /mism isman anag agem emen entt of estate; estate; d. Failur Failure e to make make an accoun accountt or invento inventory ry within within 30 days days after after it has become become due due (inven (inventor tory: y: due due within within 3 mont months hs from appoint appointme ment nt and annu annual ally ly thereafter; account: due annually) 

Grounds are EXCLUSIVE

RULE 98 TRUSTEES 1. Venue for petitions for appointment of trustees: a. If tru trust stee ee is is nece necess ssar ary y to car carry ry int into o effe effect ct the the pro provi visi sion ons s of a wil will, l, the then n in the RTC in which the will was allowed (assuming allowed in the Philippines); b. Othe therwis rwise e, then in the the RTC RTC of any pro provin vince in whic which h some pro property rty affected by the trust is situated

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RULE 99 ADOPTION AND CUSTODY OF MINORS* 1.

Venue of Adoption proceedings: Family Court of the province where the minor resides. 2. Who may adopt:

a. Fili Filipi pino no cit citiz izen en i.

At least 18

ii. Capacity (1) (1) (2) (3) (3) (4) (4) (5) (5)

Ful Full civ civil il cap capacity ity an and le legal rig righ hts Good mo moral ch character No conv convic icti tion on of crim crime e inv invol olvi ving ng mora morall tur turpi pitu tude de Emot Emotio iona nall lly y and and psyc psycho holo logi gica call lly y capa capabl ble e of of car carin ing g Able Able to supp suppor ortt in in kee keepi ping ng with with mean means s of of the the fami family ly

iii. At least least 16 16 years years older older than than the the adoptee adoptee 

Exceptions: (1) If the adopter adopter is the biological biological parent of of the adoptee adoptee (2) If the adopter adopter is the spouse of of the adoptee’s adoptee’s parent parent (3) If the adopter adopter is the sibling of the adoptee adoptee (Article (Article IV, §7 of the IRR)

b. Alien i.

Possess Possesses es the the same same qualif qualificat ications ions as a Filipino Filipino (i to iii iii of a) a)

ii. His country country has has diplom diplomatic atic relati relations ons with with the Phili Philippin ppines es iii. 3-year 3-year continuou continuous s residence residence – before before filing and maintain maintains s residen residence ce until the decree is entered iv. Certifica Certification tion by by his gove governme rnment nt that that (1) He has the legal capacity to adopt (2) The adoptee is allowed entry to his country as his son/daughter 

Exceptions to iii and iv: (1) If the adopter is a former Fi Filipino ci citizen seeking to adopt a relative within the fourth degree of consanguinity/affinity (2) If the adopter seeks to adopt the legitimate son/daughter of his/her Filipino spouse (3) If the adopter is married to a Filipino citizen and seeks to adopt jointly with spouse a relative within 4 th degree ree of consanguinity/affinity of the spouse

c. Guardian 

After termination of guardianship and clearance of financial accountabilities

d. Husb Husban and d and and Wife Wife 

*

General Rule: Joint adoption (joint parental authority)

As modified by R.A. no. 8552 or the Domestic Adoption Act

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Exceptions: a. Adoptio Adoption n of legitim legitimate ate son/d son/daug aughter hter of of the spous spouse e b. Adoptio Adoption n of one’s one’s own illeg illegitim itimate ate son/d son/daug aughter hter  Consent of other spouse needed c. Spou Spouse ses s are legall legally y sepa separat rated ed 3. Contents of petition: a.


b.

Qualifications of the adopter;

c.

That ad adopter ter is is not disq isqualifi lifie ed by la law;

d. Name, age and and residence residence of the adoptee and and his relatives or of the persons persons who have him under their care; e.

Prob Probab able le valu value e and and char charac acte terr of of the the esta estate te of the the ado adopt ptee ee..

4. Who may be adopted a. Below Below 18 and and declar declared ed availa available ble for for adoptio adoption n b. Legitim Legitimate ate son/dau son/daughte ghterr of one spouse spouse  Even if beyond 18 c. Illeg Illegiti itima mate te son/da son/daug ughte hter r  Even if beyond 18 d. One of of legal legal age but but treated treated as as own child child since since minority minority e. Child Child with with res rescin cinde ded d adopti adoption on f.

Chil Child d whos whose e par paren ents ts are are dea dead d  “6-month bar” to any proceedings

5. Whose consent needed: a. The The adop adoptee tee if 10 10 years years old old or or up b. Biological Biological parents/leg parents/legal al guardian/proper guardian/proper government government instrumentality; instrumentality; c. Legi Legitim timate ate and adopte adopted d childr children en,, 10 years years or over, over, of adop adopter ter and adopte adoptee, e, if any; d. Illegiti Illegitimate mate childre children n of adopter, adopter, 10 years or over, over, if living living with adopter adopter and the the latter’s spouse, if any. e. Spouse Spouse,, if any, of of person person adopti adopting ng and and to be adopt adopted ed 6. Process (under the Domestic Adoption Act) a.

Case study i. Adoptee ii. Biological Parents iii. Adopter



Duty of the social worker to confirm identity and register the child

14

REMEDIAL LAW (SPECIAL PROCEEDINGS) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002  

Discretion of DSWD to recommend denial of petition when necessary The social workers of the courts may undertake the case studies in lieu of the DSWD DSWD soci social al work worker er sinc since e §11 §11 of the the Dome Domest stic ic Adop Adopti tion on Act, Act, whic which h enum enumera erates tes the peop people le who may may unde underta rtake ke the the case case studie studies, s, is NOT exclusive. (A.M. no. 00-8-03-SC, effective September1, 2000)

b.

Supervised trial custody i.

6-mo -months ths bo bonding

ii.

Temporary parental authority

iii.

Period may be reduced



c.

Exception: Alien adopter (full 6 months) Exception to Exception: Relative adoption Decree of adoption 

After publication



No opposition



Evidence considered

Effective date: date: As of filing of of original petition petition (even if petitioner petitioner dies before issuance)



d.

Amendment of of certificate of bi birth 

New birth certificate issued (without notation of amended issue)



e.

Original birth certificate canceled

Confidentiality Public not allowed in proceedings





Records confidential



Court order needed for disclosure

RULE 100 RESCISSION AND REVOCATION OF ADOPTION 1.

Who may petition?

Adoptee only. 2. Grounds: a. Repeate Repeated d physica physicall and verba verball maltrea maltreatme tment nt b. Atte Attemp mptt on on lif life e c. Sexu Sexual al assau assault/ lt/vio violen lence ce

15


d. Abando Abandonme nment nt and failure failure to comply comply with paren parental tal obligati obligation on

3. Remedy of adopter against the erring adoptee a. Disi Disinh nher erit itan ance ce 4. Effects of rescission: a. Restorat Restoration ion of previ previous ous legal legal custod custody y (for minor minors) s) b. Extingu Extinguishm ishment ent of reciproc reciprocal al rights rights c. Canc Cancel ella lati tion on of amen amende ded d birt birth h cert certif ific icat ate e and and rest restor orat atio ion n of orig origin inal al birt birth h certificate 

Vested rights respecting criminal sanctions remain.

RULE 101 PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS 1. Who files a petition for commitment of an insane person: Secretary of Health 2. Where petition is filed: RTC of the province where the person alleged to be insane may be found. 3. Cases petition should be filed: in all cases where in the opinion of the Secretary of Health, such confinement is: a. for for the the publ public ic wel welfa fare re b. for the welfar welfare e of a person who who in the Secretar Secretary’s y’s judgme judgment nt is insane, insane, and such such person or the one having charge of him is opposed to his being taken to a hospital or other placed for the insane.

RULE 102 HABEAS CORPUS The writ of habeas corpus 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 caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf.

1.

2.

The writ of habeas corpus may be obtained in two instances:

a. deprivation of liberty liberty - public officers (police) b. rightful custody is withheld withheld - private persons detaining (custody of minor child) Writ Writ of habea habeas s corpu corpus s may also also be availed availed of as a cons consequ equen ence ce of a judicial proceeding: 3.

a. There There has been a depri deprivat vatio ion n of a consti constitut tutio iona nall right right resul resultin ting g in restra restrain intt of person; b. The court court had had no jurisdi jurisdictio ction n to impose impose the the sentenc sentence; e;

16


c. An excess excessive ive penalt penalty y has has been been impos imposed ed,, the sente sentence nce being being void void as to the excess. 2. Contents of petition: must be signed and verified, and shall set forth a. That That the the per perso son n in who whose se beh behal alff the the appl applic icat atio ion n is mad made e is imp impri riso sone ned d or restrained of his liberty b. The officer or name of the person by whom he is imprisoned or restrained; c.

Plac Place e whe where re he is impr impris ison oned ed or rest restra rain ined ed,, if if kno known wn;;

d. Copy Copy of of the the com commi mitm tmen entt or cau cause se of of the the det deten enti tion on,, if itit can can be be proc procur ured ed with withou outt impa impair irin ing g the the effi effici cien ency cy of the the reme remedy dy (if (if no lega legall auth author orit ity y for for imprisonment, such fact shall appear) 3. Contents of the Return of the Writ: a. Whether Whether he has has the party party under under his custod custody, y, power power or restrain restraint; t; b. If he does, does, the the authority authority and cause upon upon which which he is held, together together with a copy of the writ, order, execution or other process; c. If party party is in his custo custody dy and is not not prod produc uced ed,, the the grav gravit ity y of his sickn sicknes ess s or infirmity by reason of which he cannot be produced; and d. If he previously previously had had custody, custody, and has transferred transferred the the same to another, another, then state to whom, at what time, for what cause, and by what authority such transfer was made. 4. If it appears that that the prisoner is under custody under a warrant of commitment in pursuance of law, the return shall be prima facie evidence of the cause of the restraint. Otherwise, the return shall be only considered as a plea of the facts set forth, and the party claiming custody must prove the same. Therefore, in the former case, failure to file a reply to the Return warrants the dismissal of the petition. This is because unless the allegations are controverted, they are deemed to be true and admitted, the return being prima facie evidence of the cause of the restraint. RELIMINARY C ITATION ITATION – where a person detained under governmental authority and the 5. P RELIMINARY illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in her/his custody to show cause why the writ should not issue. EREMPTORY W RIT RIT – issued when the cause of detention appears to patently illegal and P EREMPTORY the non-compliance therewith is punishable

6. Elepante vs. Madayag : An appeal in Habeas Corpus proceedings proceedings should be perfected (i.e. by filing Notic Notice e of Appe Appeal) al) within within 48 hours hours,, compli complian ance ce with with which which is mand mandato atory ry and and juris jurisdic dictio tional nal.. In countin counting g the 48 hours hours,, the date date on which which the the decis decision ion was prom promul ulga gate ted d is not not coun counte ted, d, and and the the peri period od star starts ts to run run the the foll follow owin ing g day day

RULE 103 CHANGE OF NAME

17


1. Venue – RTC of province where petitioner resides 2. Contents of petition

a.

That petitioner is a bona fide resident of the province for at least 3 years prior to the date of the filing of the petition

b.

Cause for for wh which the the ch change of of na name is is so sought

c.

Name asked for (§2)

d. All names and aliases of petitioner ( Republic vs. Zosa) Zosa )

3. Notice of hearing published hearing published once a week for 3 consecutive weeks. 4. Date of hearing: cannot be held within 30 days before an election, or within 4 months after last publication

Last publication

4 months

Hearing

30 days

Election

Hearing cannot be scheduled within these periods 5. Title of Petition: Must include include name, name, aliases, and name name asked for. Example: Example: “In Re: Petition for Change of Name of X, alias Y, to Z. X, Petitioner. 6. Publication: must reproduce title of the petition (see above), and contain correct information as to:



a.

Name or names of petitioner;

b.

Cause for the change of name;

c.

Name asked for.

Failure to comply with above requirements renders proceedings null and void

RULE 104 VOLUNTARY DISSOLUTION OF CORPORATION *repealed by Sections 118 and 119 of the Corporation Code

RULE 105

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN

Recognition of natural children (art. 278,NCC)  Only evidence accepted a. Reco Record rd of birt birth h b. Will

18


c. Statem Statemen entt befor before e cour courtt of reco record rd d. Any Any auth authen enti tic c writ writin ing g

RULE 106 CONSTITUTION OF FAMILY HOME *amended by Articles 152 and 153 of the Family Code.

RULE 107 ABSENTEES 1. Contents of petition for appointment of representative, or for declaration of absence and appointment of trustee or administrator: a.


b. Names, ages, ages, and residences residences of heirs instituted instituted in the will (a copy copy of which must be presented) and of the intestate heirs; c. Names and and residences residences of creditors and other other persons with with adverse interests interests over the properties of the absentee; d.

Prob Probab able le val value ue,, loca locati tion on and and cha chara ract cter er of of the the prop proper erty ty of of the the abse absent ntee ee..

2. Notice of hearing: published published once a week for 3 consecutive weeks, and personal notice sent to all known heirs, legatees, devisees, creditors and other interested persons at least 10 days before the hearing.

RULE 108 CANCELLATION AND CORRECTION OF ENTRIES IN CIVIL REGISTRY 1. Venue for petitions for cancellation/correction of entry in Civil Registry: RTC of province where the corresponding civil registry is located. 2. Parties to proceedings: a.

The civil registrar AND

b. All pers perso ons who have or cla claim any any inte intere res st which ich would be be affe affec cted ted thereby

EXTRA: RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL GENERAL TO CORRECT CORRECT A CLERICAL CLERICAL OR TYPOGRAPHICA TYPOGRAPHICAL L ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER

1. Scope: a. Cleric Clerical al / typo typogra graph phica icall errors errors b. Chang Change e of first first nam name e / nickna nickname me

2. Definition of “Clerical or Typographical Typographical error”: a mistake committed in the performance of clerical work in writing, copying, transcripting or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes,

19


or obvious to the understanding and can be corrected or changed only by reference to other existing record or records

3. Who may file petition: any person having direct and personal interest in the correction or change 4. Wher Where e to file file pet petit itio ion: n: a. With the local local civil civil registry registry office of the the city or municipa municipality lity where where the record record being sought to be corrected or changed is kept b. if petitione petitionerr has already already migrated migrated to anoth another er place in the the country country and it would would not be practical for such party to appear before the local civil registrar keeping the documents to be corrected or changed: With the local civil registry of the place where the interested party is presently residing or domiciled c. if petit petition ioner er resides resides or domi domicil ciled ed in forei foreign gn countri countries: es: With With neare nearest st Phil. Consulate 5. Petition Petition may be availed availed of only once 6. Groun Grounds ds for for chang change e of firs firstt name: name: a. First name name is ridiculous, ridiculous, tainted tainted with with dishono dishonorr or extremel extremely y difficult difficult to write or pronounce b. New first first name or nickna nickname me has been been habitua habitually lly and continu continuous ously ly used by the petitioner and he has been publicly known by that first name or nickname in the community c. Chang Change e will will avoid avoid confu confusio sion n 7. Form Form and and conte contents nts of peti petitio tion: n: a. in the form form of an affida affidavit vit,, subscr subscribe ibed d and and sworn sworn to befor before e any any autho authoriz rized ed person b. set forth forth fact necessar necessary y to estab establish lish merits merits c. show affirmativel affirmatively y that petitioner petitioner is competen competentt to testify to to the matters stated d. state: i.

the particul particular ar errone erroneous ous entry entry which which are are soug sought ht to be correc corrected ted

ii. ii.

the the cha chang nge e sou sough ghtt to to be be mad made e

e. supp suppor orte ted d by: by: i.

a certifi certified ed true true machin machine e copy of the the certifi certifica cate te or of the page page of the regi registr stry y book containing the entry or entries sought to be corrected or changed

ii.

at least least 2 public public or private private docum documen ents ts showin showing g the correc correctt entry entry or entries entries upon which the correction or change shall be based

iii. iii.

othe otherr rele releva vant nt docu docume ment nts s

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8. Differenc Differences es betwee between n RA 9048 9048 and and Rule Rule 108 108 RA 9048 Administrative proceeding Affidavit is filed Penalty clause Publication Publication requirement: once a week for 2 consecutive weeks Posting in conspicuous place Change of name is based on 3 enumerated grounds

RULE 108 Summary judicial proceeding Petition is filed No penalty clause Publi Publica catio tion n requir requirem emen ent: t: 3 conse consecut cutive ive weeks No posting Chan Change ge of name name is to corre correct ct cleric clerical al / innocuous errors

RULE 109 APPEALS IN SPECIAL PROCEEDINGS 1. App Appe eals in special ial orders/judgments:

proc roceedin dings

may

be

tak taken

from from

the the

fol followi lowin ng

a. Allow Allowan ance ce/di /disal sallow lowan ance ce of wills; wills; b. Deter Determi mina natio tion n of lawful lawful heir or distr distribu ibutiv tive e share share of the the estate estate to which which such such person is entitled; c. Allowan Allowance/d ce/disall isallowan owance ce of any claim against against the estate estate of a deceased deceased person person or any claim presented on behalf of the estate to offset claim against it; d. Settlement Settlement of account of executor, executor, administrator, administrator, trustee, trustee, or or guardian; guardian; e. Constitu Constitutes, tes, in proceedi proceedings ngs relating relating to settleme settlement nt of estate or administra administration tion of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, EXCEPT that no appeal is allowed from appointment of special administrator. f.

Final Final order or judgme judgment nt rendered rendered in case case and affec affects ts substant substantial ial rights rights of person person appealing UNLESS it be an order granting or denying a motion for new trial or motion for reconsideration.

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Special Proceedings Memory Aid

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