up08_specpro.pdf

SPECIAL PROCEEDINGS I.

REMEDIAL LAW

PRELIMINARY MATTERS

Where ward resides or where his property is located (if non-resident)

Family Court - If minor ward RTC - If other than minor ward

DEFINITION Trusteeship •

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

APPLICABLE RULES •

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

ORDINARY ACTIONS VIS-À-VIS SPECIAL PROCEEDINGS Ordinary action

Special proceeding

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

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

VENUES AND JURISDICTIONS FOR DIFFERENT SPECIAL PROCEEDINGS Venue

Jurisdiction

Estate settlement

Province of decedent's residence at the time of death If non-resident decedent - Province where he had estate Escheat If decedent dies intestate and without heirs - Province where decedent last resided or where estate is If reversion - Province where land lies wholly/partially Guardianship 100% UP LAW

MTC - If estate's gross value does not exceed P300K (P400K in Metro Manila) RTC - If estate's gross value exceed MTC's jurisdiction XXXXX

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Where the will was allowed or where the property affected by the trust is located Adoption

RTC

If domestic - Where adopter resides If inter-country - Where adoptee resides (if filed with Family Court) If rescission of adoption - Where adoptee resides Habeas corpus

Family Court

Where detainee is detained (if filed in RTC)

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Family Court or InterCountry Adoption Board Family Court

SC (on any day and at any time, enforceable anywhere in the Philippines) Sandiganbayan (only in aid of its appellate jurisdiction) CA (in instances authorized by law, enforceable anywhere in the Philippines) RTC (on any day and at any time, enforceable only within its judicial district)

Writ of amparo

Where the threat or act/comission or any of its elements occurred, at any day and time) (if filed in RTC) Writ of habeas data

SC, CA, Sandiganbayan, RTC

Petitioner's residence or where the place the informaion is gathered/collected/store d, at the petitioner's option

RTC

SC, CA, Sandiganbayan If the action concerns public data files of government offices Change of name

If judicial - Where the person applying for the change of his name resides If administrative -

RTC

Local civil registry or Philippine consulate XXXXX

a) Local civil registry where the record sought to be changed is kept b) Local civil registry of XXXXX the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates xXXXX (only for Philippine citizens who reside in foreign countries) Cancellation/correction Cancellation/corre ction of entries in the civil registry If judicial - Where the concerned civil registry is located

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SPECIAL PROCEEDINGS If administrative -

Local civil registry or Philippine consulate XXXXX

a) Local civil registry where the record sought to be changed is kept b) Local civil registry of XXXXX the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates XXXXX (only for Philippine citizens who reside in foreign countries) Declaration of absence and appointment of their representative Where absentee resided RTC before his disappearance

REMEDIAL LAW II.

SETTLEMENT OF ESTATE OF DECEASED PERSONS A. VENUE AND JURISDICTION

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Special proceedings for settlement of estate may be testate (where the deceased left a will) or intestate (if there is no will). Probate of a will is mandatory and takes precedence over intestate proceedings. If in the course of intestate proceedings, it is found that the decedent left a will, proceedings for the probate of the latter should replace the intestate proceedings.

WHERE ESTATE IS SETTLED 1) If decedent is a resident of the Philippines (whether citizen or alien) – Court of the place where the decedent resided at the time of death. 2) If decedent is a non-resident of the Philippines – Court of the place where the decedent had his estate. a) RTC if estate is greater than P300K (P400K in Metro Manila) b) MTC if estate is less than P300K (P400K in Metro Manila) •

Note: Upon dissolution of marriage by the death of either the husband or the wife, the partnership affairs must be liquidated in the in/testate proceedings of the deceased spouse. If both have died, liquidation may be made in the in/testate proceedings of either. [Rule 73, Sec. 2] If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court [Bernardo v. CA] . – Personal/actual/physical RESIDENCE habitation, his actual residence or place of abode [Fule v. CA], and not his permanent legal residence of domicile [Pilipinas Shell v. Dumlao]. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss. [Uriarte v. CFI] Extent of court’s jurisdiction: Limited jurisdiction. It may only determine and rule upon the following issues: 1) Administration of the estate; 2) Liquidation of the estate; 3) Distribution of the estate. 4) Other issues that may be adjudicated on: a) Who are the heirs of the decedent. [Reyes v. Ysip] b) Recognition of a natural child. [Gaas v. Fortich] c) Validity of disinheritance effected by the testator. [Hilado v. Ponce de Leon ] •

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SPECIAL PROCEEDINGS g) Whether property in inventory is conjugal or exclusive property of deceased spouse. h) All other matters incidental/collateral to the settlement and distribution of the estate. Exception: [Coca v. Borromeo] Where a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure and can be waived.

REMEDIAL LAW 1) To satisfy the contributive shares of the devisees/legatees/heirs when the latter had entered prior possession over the estate. [Rule 88, Sec. 6] 2) To enforce payment of the expenses of partition. [Rule 90, Sec. 3] 3) To satisfy the costs when a person is cited for examination in probate proceedings. [Rule 142, Sec. 13]

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B. PRESUMPTION OF DEATH •

DETERMINATION OF OWNERSHIP •

General rule: Not allowed. Exceptions: 1) Provisionally, ownership may be determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action. 2) If all the parties are heirs and they submit the issue of ownership to probate court, provided that the rights of 3rd parties are not prejudiced. 3) If the question is one of collation or advancement. 4) If the parties consent to the assumption of jurisdiction by the probate court.

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EXCLUSIONARY RULE [Rule 73, Sec. 1] •

General rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts. The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties (e.g. if they entered into an extrajudicial partition settlement). [Sandoval v. Santiago] Note: In Rodriguez v. Borja, the SC said that the delivery of the will is sufficient for jurisdiction to be acquired, even if no petition is filed. Exception: Estoppel by laches. •

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REMEDY IF THE VENUE IS IMPROPERLY LAID •

General rule: Ordinary appeal, and not certiorari or mandamus. Exception: If want of jurisdiction appears on the record of the case. [Rule 73, Sec. 1; Eusebio v. Eusebio] •

ISSUANCE OF WRIT OF EXECUTION •

General rule: Probate court cannot issue writ of execution. Rationale: Its orders usually refer to the

General rule: A person is dead for the purpose of settling his estate if he has been missing for 10 years. [Art. 390, CC] However, if the absentee disappeared after the age of 75 years, an absence of 5 years is sufficient for the opening of succession. However, the following persons would be considered absent even for the purpose of opening succession after just 4 years: [Art. 391, CC ] 1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing. 2) A person in the armed forces who has taken part in war. 3) A person who has been in danger of death under other circumstances. If the absentee turns out to be alive, shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding. [Rule 73, Sec. 4]

C. WAYS OF SETTLING THE ESTATE •

General rule: Estate settlement should be judicially administered through an administrator/executor. Exceptions: 1) Extrajudicial settlement by agreement between/among heirs. [Rule 74, Sec. 1] 2) Summary settlement of estates of small value. [Rule 74, Sec. 2] •

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN/AMONG HEIRS

















SPECIAL PROCEEDINGS PROCEDURE IN EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN/ AMONG HEIRS Death of the decedent

Division of estate in public instrument or affidavit of adjudication

The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation

Filing of bond equivalent to the value of personal property

REQUISITES REQUISITES A. Substantive 1) The decedent left: a) No will. b) No debts. It is sufficient if any debts that the decedent incurred has been paid at the time of the extra-judicial settlement. [Guico v. Bautista] There is also the disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. 2) The heirs are all of age If there are minors, they should be represented by their judicial or legal representatives duly authorized for the purpose. B. Procedural 1) Division of estate must be in a public instrument or by affidavit of adjudication in the case of a sole heir Private instrument is valid. The requirement of a public instrument in Rule 74, Sec. 1 is not constitutive of the validity but is merely evidentiary in nature. (Hernandez v. Andal) However, reformation of the instrument may be compelled. [Regalado] 2) Filed with proper registry of deeds. 3) Publication of notice of the fact of extrajudicial settlement at least once a week for 3 consecutive weeks. An extrajudicial settlement, despite the publication thereof in a newspaper, shall not be binding on any person who has not participated therein or who had no notice thereof. [Rule 74, Sec. 1] 4) Bond filed equivalent to the value of the

REMEDIAL LAW

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from such distribution and such lien cannot be substituted by a bond. The bond is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims filed unde r Rule 74, Sec. 4.

2. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE PROCEDURE IN SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE

Death of the decedent

An application for summary settlement with an allegation that the gross value of the estate does not exceed P10K

Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct

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Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice

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Court to proceed summarily, without appointing an executor/administrator, and to make orders as ma ma be nec neces essa sarr such such as: as:

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

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Filing of bond fixed by the court

Partition of estate

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REQUISITES 1) Gross value of the estate must not exceed P10K. 2) Application must contain allegation of gross value of estate. 3) Date of hearing: a) Shall be set by court not less than 1 month

















SPECIAL PROCEEDINGS 4) Notice shall be served upon such interested persons as the court may direct. A summary settlement is not binding upon heirs/creditors who were not parties therein or had no knowledge thereof. [Sampilo v. CA] 5) Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Rule 74, Sec. 4. •

REMEDIES OF AGGRIEVED PARTIES AGAINST EXTRAJUDICIAL SETTLEMENT / SUMMARY SETTLEMENT 1. CLAIM AGAINST THE BOND OR REAL ESTATE OR BOTH [Rule 74, Sec. 4] •

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Remedies: 1) If there is an undue deprivation of lawful participation in the estate 2) The existence of debts against the estate or undue deprivation of lawful participation payable in money This remedy can be availed of only within 2 years after the settlement and distribution of the estate. Such bond and such real estate shall remain charged with a liability to creditors/heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. Period for claim of minor or incapacitated person: Within 1 year after the minority or incapacity is removed. 2. PETITION FOR RELIEF [Rule 38]

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Grounds for petition for relief: FAME – fraud, accident, mistake, excusable negligence. Period: 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. 3. REOPENING BY INTERVENTION WITHIN REGLEMENTARY PERIOD

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Who is allowed to intervene with leave of court: A person who either: 1) Has a legal interest in the matter in litigation; 2) Has such legal interest in the success of either of the parties, or an interest against both; 3) Is so situated as to be adversely affected by a distribution/disposition of property in the custody of the court or of an officer thereof. Period: Anytime before rendition of judgment by the TC. As long as within reglementary period of 2 years. 4. NEW ACTION TO ANNUL SETTLEMENT WITHIN REGLEMENTARY PERIOD

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Reglementary period: The 2 years, and not the

REMEDIAL LAW 6. ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLMENT ON THE GROUND OF FRAUD WHICH SHOULD BE FILED WITHIN 4 YEARS FROM THE DISCOVERY OF FRAUD [Gerona v. De Guzman]

EXTRAJUDICIAL SETTLEMENT VS. SUMMARY SETTLEMENT Extra-judicial settlement

No court intervention Estate's value is immaterial There must be no outstanding debts at the time of settlement Resorted to at the instance and by agreement of all the heirs Amount of bond is equal to the value of the personal property

Summary settlement

Requires summary judicial adjudication Gross estate value must not exceed P10K Available even if there are debts (since the court will make provisions for payment) May be instituted by any interested party, even by a creditor of the estate, without the consent of all the heirs Amount of bond is to be determined by the court

3. JUDICIAL SETTLEMENT THROUGH AN ADMINISTRATOR/ EXECUTOR PROCEDURE IN JUDICIAL SETTLEMENT THROUGH AN ADMINISTRATOR/ EXECUTOR Death of the decedent

Petition for probate of the will, if any

Court order fixing the time and place for probate

The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. Notice shall also be given to the designated/known heirs, legatees and devisees, and the executor if the one petitioning for allowance of the will is not the testator

Issuance of Letters Testamentary/Admin Testamentary/Administration istration

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SPECIAL PROCEEDINGS •

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Special proceedings for estate settlement may be testate (where the deceased left a will) or intestate (if there is no will). There must be judicial settlement through an administrator/executor if it does not fall under the 2 exceptions, regardless of the existence or non-existence of a will. The allowance of the will shall be conclusive as to its due execution. [Rule 75, Sec. 1]

a. VENUE AND JURISDICTION •

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RTC if estate is greater than P300K (P400K in Metro Manila). MTC if estate is less than P300K (P400K in Metro Manila). AS TO THE INTRINSIC VALIDITY OF A WILL General rule: No. The probate court’s authority is limited to: 1) Extrinsic validity of the will. 2) Due execution thereof. 3) Testator’s testamentary capacity. 4) Compliance with the requisites or solemnities prescribed by law. Exception: PRINCIPLE OF PRACTICAL – Waste of CONSIDERATION time/effort/expense plus added anxiety are the practical considerations that induce us to a belief that we might as well meet head-on the issues of the validity of the provisions of the will. [Nuguid v. Nuguid] If there is a defect that is apparent on the face of the will. [Nepomuceno v. CA]

REMEDIAL LAW PROCEDURE AFTER WILL IS DELIVERED TO, OR WHEN A PETITION FOR ALLOWANCE OF A WILL IS FILED IN, THE COURT: 1) The court shall fix a time and place for proving the will. Rationale: So that all concerned may appear to contest the allowance thereof, if such is the case. 2) The court shall cause notice of such time and place to be published 3 weeks successively in a newspaper of general circulation. This rule on newspaper publication does not apply if the probate of the will has been filed by the testator himself. 3) The court shall give notice of the designated time and place to: a) Designated/known heirs, legatees and devisees. b) Executor and co-executor (if not the petitioner). The probate court acquires jurisdiction over the interested persons and the res only after the publication and notices are sent. Also, if the testator himself is the one asking for the allowance of the will, the notice shall be sent only to his compulsory heirs. •

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b. ALLOWANCE/ DISALLOWANCE OF THE WILL PERSONS WHO MAY FILE PETITION [Rule 76, Sec. 1] 1) Executor; 2) Devisee/legatee named in the will; 3) Person interested in the estate; 4) Testator himself during his lifetime; 5) Any creditor – as a preparatory step for filing of his claim therein. CONTENTS IN THE PETITION FOR PROBATE [Rule 76, Sec. 2] 1) Jurisdictional facts: Death of the testator and his residence at the time of death or the place where the estate was left by the decedent who is a non-resident. 2) Names/ages/residences of the heirs, legatees, and devisees. 3) Probable value and character of the estate property. 4) Name of the person for whom the letters are prayed. 5) Name of the person having custody of the will if it has not been delivered to the court.

MODES OF NOTIFICATION [Rule 76, Sec. 4] 1) If by mail – 20 days before hearing. 2) If through personal notice – 10 days before hearing. DISALLOWANCE OF WILL [Rule 76, Sec. 9] 1) If the formalities required by law have not been complied with 2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution 3) If it was executed through force or under duress, or the influence of fear, or threats 4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person 5) If the signature of the testator was procured by fraud 6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto

c. DUTY OF CUSTODIAN/ EXECUTOR OF WILL DUTY OF THE CUSTODIAN OF THE WILL [Rule 75, Sec. 2] To deliver the will within 20 days after he knows of the death of the testator to the court having jurisdiction or to the executor named in the will. •

DUTY OF THE EXECUTOR NAMED IN THE WILL [Rule 75, Sec. 3] 1) It is his duty to present the will within 20 days after (a) he knows of the death of the testator or (b) after he knows that he is named the




















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Without a satisfactory excuse, they shall be fined a sum not exceeding P2K. [Rule 75, Sec. 4] If he retains the will and does not deliver it to the court, he may be committed to prison and kept there until he delivers the will. [Rule 75, Sec. 5]

d. PROOF OF WILL •

In the hearing for the probate of a will, the compliance of publication and notice must first be shown before introduction of testimony in support of the will. [Rule 76, Sec. 5 ]

EVIDENCE REQUIRED IN SUPPORT OF THE WILL 1) Uncontested wills: [Rule 76, Sec. 5 ] a) Notarial wills – Testimony of at least 1 of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law. If all subscribing witnesses reside outside the province – Deposition is allowed. If the subscribing witnesses are dead, insane, or if none of them resides in the Philippines – The court may admit testimony of other witnesses to prove the sanity of the testator and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them. b) Holographic wills – The testimony of 1 witness who knows the handwriting and signature of the testator may be admitted. In the absence thereof, the testimony of an expert witness may be admitted. If the testator himself petitioned for the allowance of his holographic will, his affirmation is sufficient evidence of the genuineness and due execution of the will. 2) Contested wills: [Rule 76, Sec. 11] a) Notarial wills – All subscribing witnesses and the notary public before whom the will was acknowledged must be produced and examined. However, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was •

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REMEDIAL LAW 2) That the will was in existence when the testator died, or if it was not, that it has been fraudulently/accidentally destroyed in the lifetime of the testator without his knowledge; and 3) The provisions of the will are clearly established by at least 2 credible witnesses. •

When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

PROBATE OF LOST/DESTROYED HOLOGRAPHIC WILL General rule: Not allowed. Exception: A lost/destroyed holographic will could be proved by photostatic or xerox copies thereof. [Rodelas v. Aranza] •

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PROOF OF HOLOGRAPHIC WILL IF TESTATOR PETITIONS FOR PROBATE [Rule 76, Sec. 12] The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. If contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may present such additional proof as may be necessary to rebut the evidence for the contestant.

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e. CONTEST TO WILL •

Procedure: The person contesting the will must state his opposition in writing and serve a copy thereof on the petitioner and other parties interested in the estate. [Rule 76, Sec. 10]

f. ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES •

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A will allowed/probated in a foreign country must be reprobated in the Philippines. Administration of an estate extends only to the assets of the decedent found within the state or country where it was granted. The administrator appointed in one state has no power over property in another state or country. [Leon & Ghezzi v. Manufacturer Life Insurance] Petition to be filed in the RTC. The RTC where

















SPECIAL PROCEEDINGS EFFECTS OF REPROBATE [Rule 77, Sec. 3 and 4] 1) The will shall have the same effect as if originally proved and allowed in the Philippines. 2) Letters testamentary or administration with a will annexed shall extend to all estates of the Philippines. 3) Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country.

g. LETTERS TESTAMENTARY/ ADMINISTRATION QUALIFICATIONS PERSONS WHO MAY BE EXECUTORS/ADMINISTRATORS 1) EXECUTOR – The person named in the will to administer the decedent’s estate and carry out the provisions thereof. 2) ADMINISTRATOR (regular or special) – The person appointed by the court to administer the estate where the decedent died intestate. An administrator may also be one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such. 3) A corporation/association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. [Art. 1060, CC] 4) The marriage of a single woman also shall not affect her authority to serve under a previous appointment. [Rule 78, Sec. 3]

REMEDIAL LAW Compensation may be provided for by the testator in the will; otherwise, Rule 85, Sec. 7 shall apply

SEVERAL CO-EXECUTORS NAMED IN THE WILL BUT NOT ALL CAN ACT If all of the named co-executors cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. [Rule 78, Sec. 5] •

ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION 1) Surviving spouse or next of kin. NEXT OF KIN – Those persons who are entitled under the statute of distribution to the decedent’s property. 2) Any one or more of the principal creditors. 3) Stranger. •

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PERSONS WHO ARE INCOMPETENT TO SERVE AS EXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1 and 2] 1) A minor. 2) A non-resident. 3) One who, in the opinion of the court, is unfit to exercise the duties of the trust by reason of: a) Drunkenness. b) Improvidence.

Compensation is to be governed by Rule 85, Sec. 7

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Rationale: The underlying assumption is that those who will reap the benefits of a wise/speedy/economical administration of the estate or those who will most suffer the consequences of waste/improvidence/mismanagement, have the higher interest and most influential motive to administer the estate correctly. Letters of administration may be granted to any person or any other applicant even if there are other competent persons with a better right to the administration, if such persons fail to appear when notified and claim the letters to themselves. [Rule 79, Sec. 6] If a petition for letters of administration is filed, such court shall fix a time and place for hearing the petition and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and other persons believed to have an interest in the estate. [Rule 79, Sec. 3]

OPPOSITION TO ISSUANCE OPPOSITION OF THE ISSUANCE OF LETTERS TESTAMENTARY [Rule 79, Sec. 1] Any interested person in the will. He should state the grounds in writing why he is opposing and he may attach a petition for •

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SPECIAL PROCEEDINGS SPECIAL ADMINISTRATORS •

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Court EEs should not be appointed special administrators as their objectivity and impartiality may be compromised by extraneous considerations.[Medina v. CA] The order of preference in the appointment of regular administrators does not apply to the appointment of a special administrator, but such order of preference may be followed by the judge in the exercise of sound discretion. [Matias v. Gonzales] Similarly, the grounds for the removal of the regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds in its discretion. [Junquera v. Borromeo] The order appointing a special administrator is an interlocutory and is not appealable. [Garcia v. Flores]

WHEN APPOINTED 1) Delay in granting of letters including appeal in the probate of the will. [Rule 80, Sec. 1] 2) Executor is a claimant of the estate he represents. [Rule 86, Sec. 8] In this case, the administrator shall have the same powers as that of a general administrator. •

Regular administrator

Special administrator

Appointment may be the subject of appeal

Appointment is an interlocutory order and may not be the subject of an appeal He cannot pay the estate's debts Appointed if there is delay in granting letters testamentary or letters of administration, or if the executor is a claimant of the estate he represents

One of the obligations is to pay the estate's debts Appointed if decedent died intestate or did not appoint an administrator, or if the appointee refused or is not qualified

DUTIES AND GENERAL POWERS OF ADMINISTRATORS AND SPECIAL ADMINISTRATORS DUTIES/POWERS OF THE GENERAL ADMINISTRATOR 1) To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner. 2) To examine and make invoices of the property

REMEDIAL LAW 7) To render true an just account of his administration within 1 year of appointment. 8) To perform all orders by the court. 9) Discharge all debts/legacies/charges as shall be decreed by the court. 10) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). DUTIES/POWERS OF THE SPECIAL ADMINISTRATOR 1) Possession and charge of the goods, chattels, rights, credits and estate of the deceased. 2) Preserve the same. 3) Commence and maintain suit for the estate. 4) Sell only: (1) perishable property; and (2) property ordered by the court. 5) Pay debts only as may be ordered by the court. 6) Make a true inventory and appraisal of all real/personal property of decedent within 3 months after his appointment (except clothes of family, marriage bed, and other articles for subsistence of family). 7) To render true an just account of his administration within 1 year of appointment. 8) To perform all orders by the court. 9) Give allowance to legitimate surviving spouse or children of the decedent if the court decrees such (grandchildren are not entitled). 10) Deliver property he received to person appointed as executor or administrator or to such other person as may be authorized by the court. RESTRICTIONS ON THE POWER OF AN ADMINISTRATOR/EXECUTOR 1) Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration. 2) Cannot borrow money without authority of the court. 3) Cannot peculate with funds under administration. 4) Cannot lease the property under administration for more than 1 year. 5) Cannot continue the business of the deceased unless authorized by the court. 6) Cannot profit by the increase/decrease in the value of the property under administration. POWERS OF A NEW EXECUTOR/ADMINISTRATOR (AFTER THE FIRST RESIGNS, IS REMOVED, OR REVOKED) 1) Collect and settle the estate not administered. 2) Prosecute/defend actions commenced by or

















SPECIAL PROCEEDINGS

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proceeds of the sale or encumbrance. [Rule 89, Sec. 7(c)] For joint executors and administrators: The court may take separate bonds from each or a joint bond from all. [Rule 81, Sec. 3]

ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS ACCOUNTABILITY FOR THE ENTIRE ESTATE: The executor/administrator is accountable for the entire estate of the deceased. However, he is not accountable for properties which never came to his possession. [Rule 85, Sec. 1] However, he would still be liable for properties which never came to his possession if through unfaithfulness to the trust or his own fault or lack of necessary action, the executor/administrator failed to recover part of the estate which came to his knowledge. Generally, the executor/administrator is not liable for debts due the estate which are not yet paid; unless it remained uncollected because of his fault. [Rule 85, Sec. 1] Income from realty when used by the administrator/executor: The administrator shall account for it as may be agreed upon by him and the parties interested, or adjusted by the court with their assent. If the parties do not agree upon the sum to be allowed, the same may be ascertained by the court whose determination shall be final. [Rule 85, Sec. 4] Neglects or delays to raise or pay money: The administrator shall be liable therefore on his bond. [Rule 85, Sec. 5]

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EXPENSES OF ADMINISTRATION Expenses necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits.

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COMPENSATION TO EXECUTOR/ADMINISTRATOR [Rule 85, Sec. 7] That provided by the will is controlling. However, if there is no compensation provided, the compensation shall be either: 1) P4/day for the time actually and necessarily employed; 2) Commission upon the value of so much of the estate as comes into his possession and finally disposed of by him; 3) 2% of the first P5K, 1% in excess of P5K up to P30K, ½% in excess of P30K up to P100K, and ¼% in excess of P100K.

REMEDIAL LAW •

Before the account is allowed, notice shall be given to interested persons in order for them for examination. [Rule 85, Sec. 10 ]

REVOCATION OF ADMINISTRATION; DEATH/RESIGNATION/REMOVAL OF ADMINISTRATORS AND EXECUTORS ROLE OF ADMINISTRATOR IF A WILL IS DISCOVERED If the letters of administration have been granted because of the belief that the decedent had died intestate, and then a will is discovered and allowed by the court, the administration shall be revoked and the administrator shall surrender the letters of administration to the court and render his account of administration. It is within the court’s discretion on WON the intestate proceeding should be discontinued and a new proceeding should be constituted. The discovery of a will does not ipso facto nullify the administration unless the will has been proved and allowed. [De Parreño v Aranzanso] Acts of the administrator done before his removal/resignation/revocation are valid unless proven otherwise. [Rule 82, Sec.3] •

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GROUNDS FOR REMOVAL OF EXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2] 1) Neglect to render accounts (within 1 year when the court directs). 2) Neglect to settle estate according to the ROC. 3) Neglect to perform an order/judgment of the court or a duty expressly provided by the ROC. 4) Absconding. 5) Insanity or incapacity or unsuitability to discharge the trust

h. CLAIMS AGAINST THE ESTATE STATUTE OF NON-CLAIMS

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Definition: Period fixed by the ROC for the filing of claims against the estate for examination and allowance. The Statute of Non-Claims applies only to claims that do not survive.

PERIOD FOR CLAIMS [Rule 86, Sec. 2] General rule: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the

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The Statute of Non-Claims and the Statute of Limitations must concur in order for a creditor to collect. A creditor barred by the Statute of NonClaims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor.

CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5] 1) Money claims, debts incurred by the deceased during his lifetime, arising from contract: a) Express or implied; b) Due or not due; c) Absolute or contingent. 2) Claims for funeral expenses or for the last illness of the decedent. 3) Judgment for money against decedent. •

However, a creditor barred by the statute of non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor.

NOTICE REQUIREMENT IN CLAIMING AGAINST THE ESTATE: 1) The court, after granting letters testamentary/letters of administration, may immediately issue notices to creditors to file their claims. 2) This notice must be published for 3 successive weeks in a newspaper of general circulation and province, and post the same in 4 public places in the province and 2 public places in the municipality where the decedent last resided. 3) Within 10 days after the notice has been published and posted in accordance with the preceding section, the executor/administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed.

SOLIDARY OBLIGATION OF DECEDENT •

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The claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor. [Rule 86, Sec. 6] If the obligation of the decedent is joint with another debtor: The claim shall be confined to the portion belonging to him. [Rule 86, Sec. 6]

REMEDIAL LAW

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EXECUTOR’S/ ADMINISTRATOR’S CLAIM AGAINST THE ESTATE •

If executor/administrator has a claim: He shall give notice to the court in writing and the court thereafter shall appoint a special administrator. [Rule 86, Sec. 8]

PROCESS FOR CLAIMS [Rule 86, Sec. 10] 1) Deliver the claim with the necessary vouchers to the clerk of court. 2) Serve a copy thereof on the executor/administrator. 3) If the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no offsets. 4) If the claim is not due or contingent, it must be accompanied by an affidavit stating the particulars thereof. 5) Executor must file his answer to the claim within 15 days after service of a copy of the claim. Answer should contain: Either admit or deny the claim and set forth the substance of the matters which are relied upon to support such admission or denial. If the executor/administrator has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. The answer must also set forth claims which the decedent has against the claimant or else it will forever be barred. A claim admitted by the executor/administrator may be opposed by an heir/legatee/devisee. [Rule 86, Sec. 11] The court may refer contested claims to a commissioner. [Rule 86, Sec. 12] •

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APPEAL FROM JUDGMENT ON A CLAIM AGAINST ESTATE •

MORTGAGE DEBT DUE FROM ESTATE

admitted as creditor and shall receive no share in the distribution of the other assets of the estate. These remedies are alternative; the availment of one bars the availment of the other remedies.

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Judgment is appealable like in ordinary cases. A judgment against executor/administrator



















SPECIAL PROCEEDINGS

REMEDIAL LAW

this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. [Rule 86, Sec. 14]

i.

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ACTIONS BY OR AGAINST EXECUTORS/ ADMINISTRATORS

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Heirs may not sue the executor/administrator for recovery of property left by the decedent until there is an order of the court assigning such lands to such heir or until the time for paying debts has expired. [Rule 87, Sec. 3]

CLAIMS THAT SURVIVE •

CLAIMS THAT SURVIVE - Actions that may be commenced directly against the executor and administrator. [Rule 87, Sec. 1] 1) Recovery of real/personal property (or any interest therein) from the estate. 2) Enforcement of a lien thereon. 3) Action to recover damages arising from tort.

CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5]

1) Money claims, debts incurred by the deceased during his lifetime arising from contract: a) Express or implied; b) Due or not due; c) Absolute or contingent. 2) Claims for funeral expenses or for the last illness of the decedent. 3) Judgment for money against decedent.

PROCEEDINGS ON MORTGAGE DUE ESTATE •

Executor/administrator can foreclose a mortgage belonging to the decedent. [Rule 87,

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1) The creditors making the application pay such part of the costs and expenses; 2) Give security therefore to the executor/administrator. Requisites before creditor may bring action [Rule 87, Sec. 10] 1) There is a deficiency of assets in the hands of an executor/administrator for the payment of debts and expenses of administration. 2) In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against other creditors. 3) The subject of the attempted conveyance would be liable to attachment in his lifetime. 4) The executor/administrator has shown no desire to file the action or failed to institute the same within a reasonable time. 5) Leave is granted by the court to the creditor to file the action. 6) A bond is filed by the creditor. 7) The action by the creditor is in the name of the executor/administrator. The last 3 requisites are unnecessary where the grantee is the executor/administrator himself, in which event, the action should be in the name of all the creditors.

PROCEEDINGS WHERE PROPERTY ENTRUSTED BY EXECUTOR/ ADMINISTRATION TO 3RD PERSON [Rule 87, Sec. 7] •

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Complaint of executor/administrator against person entrusted with estate: The court may require such person entrusted with the estate to appear before it and render a full account of all property which came into his possession. Refusal to appear or give an accounting may be

















SPECIAL PROCEEDINGS

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debts/expenses/legacies. [Rule 89, Sec. 2] 5) When the decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary. [Rule 89, Sec. 8] 6) When the decedent during his lifetime held real property in trust for another person. [Rule 89, Sec. 9] Requisites for exception to ensue: 1) Application by executor/administrator; 2) Written notice to persons interested; 3) Hearing. The same principles apply if the debt of the estate is in another country. The court may authorize an executor/administrator to sell/mortgage/encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale/mortgage/encumbrance of other real estate. If testator orders the payment of a debt he believes he owes but does not in fact owe: The disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. Order of the sale of personal property: [Rule 89,Sec. 1] 1) To pay the debts and expenses of administration; 2) To pay legacies; 3) To cover expenses for the preservation of the estate.

EXCEPTIONS; SALE/MORTGAGE/ENCUMBRANCE OF REALTY EVEN IF PERSONALTY IS SUFFICIENT TO PAY DEBTS

REMEDIAL LAW 2) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper; 3) If the court requires it, the executor/administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor/administrator will account for the proceeds of the sale/mortgage/encumbrance; 4) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor/administrator to sell/mortgage/encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor/administrator shall be furnished with a certified copy of such order; 5) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale; 6) There shall be recorded in the registry of deeds of the province in which the real estate thus sold/mortgage d/encumbered is situated, a certified copy of the order of the court, together with the deed of the executor/administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime. •

If sale/mortgage/encumbrance of the property of the decedent prevented by an interested person: That person can give a bond, in a sum fixed by the court, conditioned to pay the debts, expenses of administration, and

















SPECIAL PROCEEDINGS

•

1) Contingent claim is duly filed within the 2 year period allowed for the creditors to present claims; 2) Court is satisfied that the claim is valid; 3) The claim has become absolute. If contingent claim that is not presented after becoming absolute within the 2 year period allowed: The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received form the property of the deceased.

CONTRIBUTIVE SHARE OF DEVISEES/LEGATEES/HEIRS IN POSSESSION OF PORTIONS OF ESTATE FOR DEBTS •

If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute. [Rule 88, Sec. 6]

PAYMENT IF ESTATE INSOLVENT OR ASSETS INSUFFICIENT •

If insufficient estate to pay all debts: The executor/administrator shall pay the debts according to the concurrence and preference of credits provided by Art. 1059 and 2239-2251, CC. [Rule 88, Sec. 7]

REMEDIAL LAW property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.

ORDER OF PAYMENT OF DEBTS •

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Before the expiration of the time limited for the payment of debts (1 year, but may be extended), the court shall order the payment thereof. [Rule 88, Sec. 11] The court may suspend the order for the payment of debts or may order the distribution if an appeal is taken, among the creditors whose claims are definitely allowed, leaving in the hands of the executor/administrator sufficient assets to pay the claim disputed and appealed. [Rule 88, Sec. 12]

TIME FOR PAYMENT OF DEBTS AND LEGACIES; PERIOD FOR SUCCESSOR OF DECEASED ADMINISTRATOR/EXECUTOR [Rule 88, Sec. 15 and 16] •

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Need not exceed 1 year in the first instance; but court may extend on application of executor/administrator and after hearing and notice thereof. Extension must not exceed 6 months for single extension. The whole period allowed to the original executor/administrator shall not exceed 2 years. The successor of dead executor/administrator may be allowed an extension not to exceed 6 month.

k. SALES AND CONVEYANCE OF PERSONALTY/REALTY FOR OTHER REASONS

















SPECIAL PROCEEDINGS

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such modifications as are agreed upon by the parties and approved by the court. If the property is to be conveyed to the executor/administrator, it is the clerk of court which shall execute the deed.

PROCEDURE There should be an application for such purpose and notice should be given to the interested persons and such further notice, by publication or otherwise, as the court deems proper. [Rule 89, Sec. 8] While Rule 89, Sec. 8 does not specify who should file the application, it stands to reason that the proper party must be one who is to be benefited/injured from the judgment or one who is entitled to the avails of the suit (i.e. even people not the executor/administrator can file the application). [Heirs of Spouses Sandejas v. Lina ]

REMEDIAL LAW EXPENSES OF PARTITION [Rule 90, Sec. 3] •

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CONVEYANCE OF REALTY WHICH DECEASED HELD IN TRUST •

Authorization of conveyance of realty which the deceased held in trust: Following the notice requirement required as in the case where the decedent was under contract to convey realty, the court may allow the executor/administrator to deed such property to the person for whose use and benefit the property was held. The court may order the execution of such trust whether by deed or by law. [Rule 89, Sec. 9 ]

l.

PARTITION AND DISTRIBUTION OF ESTATE

WHEN ORDER FOR DISTRIBUTION OF RESIDUE IS MADE •

General rule: Order of distribution shall be

General rule: If there are sufficient effects in the hands of the executor/administrator, and if it not inconsistent with the intention of the testator, then such may be applied for the payment of the expenses of partition. Exception: If it cannot be paid by the executor/administrator, it should be paid by the parties in proportion to their respective shares or interest in the estate, and the apportionment shall be settled and allowed by the court. Person interested in the partition does not pay his proportion/share of the expenses of partition, the court may issue an execution in the name of the executor/administrator against him. •

REMEDIES AGAINST JUDGMENT OF PARTITION •

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Partition may be set aside only if interested party is left out by reason of circumstances beyond his control or mistake/inadvertence not imputable to negligence. Remedies: Motion to reopen within the 30-day reglementary period; then appeal from the order of denial (the latter is not an independent action. Since it is a proceeding in rem, all interested persons have constructive notice, and jurisdiction of pro bate court is exclusi ve. Non-distribution of estate is not a ground for reopening. Remedy for such case is a motion for execution, or, if beyond the reglementary period, a separate action for recovery of shares.

















SPECIAL PROCEEDINGS III.

REMEDIAL LAW proceedings may be served. [Gorostiaga v. Sarte]

GUARDIANSHIP

PROCEDURE FOR GUARDIANSHIP UNDER RULES 92-97

SCOPE AND APPLICABILITY •

Petition for the appointment of a guardian

Court order fixing the hearing of the petition

Notice of the hearing

Hearing and appointment of the guardian

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Rules 92-97 have been amended by AM-03-0205-SC (April 1, 2003). Guardianship of incompetents who are not minors continues to be under the jurisdiction of the regular courts and governed by Rules 92-97. Guardianship of minors, however, is now governed by AM-0302-05-SC. [Regalado] In a guardianship case, if an issue arises as to who has the better right/title to the properties conveyed in the guardianship proceedings, the issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. [Parco v. CA (1982)] However, where the ward’s right/title to the property is clear and indisputable, the guardianship court may issue an order directing its delivery/return. [Paciente v. Dacuycuy (1982) ] ]

INCOMPETENTS [Rule 92, Sec. 2] Service of judgment on the local civil registrar

Filing of bond by the g uardian

Termination of guardianship

DEFINITION KINDS OF GUARDIANS [Regalado] 1) LEGAL GUARDIAN – Deemed as guardian by provision of law, without need of court

1) Persons suffering the penalty of civil interdiction; 2) Hospitalized lepers; 3) Prodigals; 4) Deaf and dumb who are unable to read and write; 5) Those who are of unsound mind, even though they have lucid intervals; 6) Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, thereby becoming an easy prey for deceit and exploitation.

TRANSFER OF VENUE [Rule 92, Sec. 3]



















SPECIAL PROCEEDINGS

REMEDIAL LAW

ward’s person and property. No man can serve two masters. [Garchitorena v. Sotelo] •

PETITION’S CONTENTS [Rule 93, Sec. 2] 1) Jurisdictional facts; 2) Incompetency rendering the appointment necessary/convenient; 3) Names/ages/residences of the incompetent’s relatives, and of the persons having him in their care; 4) Estate’s probable value and character; 5) Name of the person for whom letters of guardianship are prayed. •

The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship. [Rule 93, Sec. 2]

HEARING •

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When a petition is filed, the court shall fix a time and place for hearing. The court shall cause notice to be given to the persons mentioned in the petition residing in the province, including the incompetent himself. [Rule 93, Sec. 3] Notice to the ward’s relatives is a jurisdictional requirement. [Yangco v. CFI]

OPPOSITION [Rule 93, Sec. 4]

person in question is an incompetent, the court shall appoint a suitable guardian of his person/estate/both. [Rule 93, Sec. 5] The guardian’s appointment is good until set aside; and, despite and appeal therefrom, the guardian can do what is necessary (under court’s direction) for the protection of the ward/estate. [Zafra-Sarte v. CA (1970)]

SERVICE OF JUDGMENT The final order or judgment shall be served upon the civil registrar of the municipality/city where the incompetent resides or where his property is situated. [Rule 93, Sec. 8]

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GUARDIAN’S BOND •

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Before an appointed guardian enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond. [Rule 94, Sec. 1] Conditions on the bond: [Rule 94, Sec. 1] 1) To make and return, within 3 months, the estate’s inventory; 2) To faithfully execute the duties of his trust, to manage and dispose of the estate according to ward’s best interests, and to provide for the ward’s proper care/custody/education; 3) To account for the estate and all proceeds/interest derived therefrom; 4) At the expiration of his trust, to settle his accounts with the court and deliver the

















SPECIAL PROCEEDINGS other’s actions in the premises and for any resulting loss. [Zubeldia v. Hermanos] Exception: If he shows that he used reasonable care and discretion in the manner of selecting those whom he employs. 4) To render an inventory of the ward’s estate within 3 months after his appointment; and an inventory and account annually after the appointment. [Rule 96, Sec. 7] The inventory and account may be compelled upon the application of an interested person. The inventories and accounts shall be sworn to by the guardian. All the estate described in the first inventory shall be appraised. The court may request the assistance of inheritance tax appraisers. If any property of the ward not included in an inventory already rendered is discovered/acquired by the ward, like proceedings shall be had for inventory and appraisement within 3 months. 5) The court may authorize the guardian to join in an assent to an estate partition held by the ward jointly or in common with others. The authority shall only be granted after hearing, notice to the ward’s relatives, and a careful investigation as to the proposed action’s necessity/propriety. [Rule 96, Sec. 5] 6) Upon complaint of the guardian/ward or any

REMEDIAL LAW

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2) If it appears that it is for the ward’s benefit that his real estate (or part thereof) be sold/encumbered and the proceeds put out at interest or invested. The grounds enumerated in this section are exclusive. No order will be issued for another purpose not found in this rule. Sale of the ward’s realty without court order is void. [Inton v. Quintana] The guardian may file a verified petition with the court which appointed him. The petition shall set forth the grounds, and pray for authorization of the sale/encumbrance.

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SHOW CAUSE ORDER [Rule 95, Sec. 2] If it seems probable that the sale/encumbrance is necessary/beneficial, the court shall direct the ward’s next of kin and all interested persons to appear and show cause why the petition should not be granted. Next of kin - Relatives whose relationships are such as to entitle them to shares in the estate as distributes. [Lopez v. Teodoro]

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HEARING [Rule 95, Sec. 3] At the time and place designated in the show cause order, the court shall hear evidences and grant/refuse the petition’s prayer as the ward’s best interests require. •

ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4] After full examination, if it appears that it is

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REMEDIAL LAW

Appeal is the proper remedy against a court order authorizing the sale of the ward’s property. [Lopez v. Teodoro (1950)]

GUARDIANSHIP’S TERMINATION •

GROUNDS FOR TERMINATION 1) If the incompetent is no longer incompetent. [Rule 97, Sec. 1] The person who was declared incompetent, or his guardian/relative/friend, may petition the court to have his present competency judicially determined. determined . The petition shall be verified by oath, and shall state that the subject person is then competent. Upon receipt of the petition, the court shall fix the time for hearing, and cause notice to be given to the guardian and the ward. On the trial, the guardian, the relatives and (court’s discretion) any person may contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court. If it is found that the person is no longer incompetent, his competency shall be adjudged and guardianship shall cease. 2) If the incompetent dies. 3) If the guardian: [Rule 97, Sec. 2] a) becomes insane or incapable/unsuitable of discharging his trust; b) wasted/mismanaged the estate; •

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ANCILLARY GUARDIANSHIP Guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the later. [Johannes v. Harvey] After filing of petition, notice and hearing, if the court is satisfied that the nonresident is an incompetent rendering a guardian necessary/convenient, it may appoint a guardian for the non-resident’s estate. [Rule 93, Sec. 6 ] •

















SPECIAL PROCEEDINGS IV.

TRUSTEES

REMEDIAL LAW •

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PROCEDURE FOR APPOINTMENT OF TRUSTEES UNDER RULE 98

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Allowance of the instrument creating the trust

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Petition by the executor/administrator or the person appointed as trustee in the instrument

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Appointment of trustee by the court

Notice to all interested parties

Rule 98 applies only to express trusts under CC. [Regalado] Express trust on an immovable, or interests in it, may not be proved by parole evidence. [Art. 1443, CC] While an implied trust may be established by parol evidence, an express trust cannot. Even then, an implied trust cannot be established upon vague and inconclusive proof. [Heirs of Lorenzo Yap v. CA (1999) ] No particular words are required to create an express trust. It is sufficient that a trust is clearly intended. [Art. 1444, CC] The right creating/declaring a trust need not be contemporaneous or inter-parties. An express trust may even be declared by a writing made after the legal estate has vested in the trustee. The fact that an express trust was created by a deed which was absolute on its face may be shown by a writing separate from the deed itself. [De Leon v. Molo-Peckson (1962)] A trust shall not fail because the trustee appointed declines. [Art. 1445, CC] Exception: The contrary appears in the instrument constituting the trust. Beneficiary’s acceptance is necessary. But if the trust does not impose any onerous condition on the beneficiary, his acceptance is presumed; Exception: If there is contrary proof. [Art. 1446, CC] General rule: A voluntary trust is irrevocable

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Filing of bond by the trustee

DEFINITION

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SPECIAL PROCEEDINGS TRUSTEES APPOINTED ABROAD TERRITORIALITY OF TRUSTEE’S AUTHORITY – The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the Philippine territory. Proceedings if the trustee is appointed abroad:

REMEDIAL LAW TRUSTEE’S COMPENSATION

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If the trustee’s compensation is not determined in the instrument creating the trust, it shall be fixed by the court. [Rule 98, Sec. 7]

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TRUSTEE’S REMOVAL/RESIGNATION [Rule Philippine land is held in tr ust for Philippine residents, by a trustee who derives authority from outside the Philippines

Petition filed in the RTC of the province where the land is situated

Notice to all interested parties

98, Sec. 8] •

Grounds for removal of a trustee: 1) If essential to the interests of the party petitioning the removal; Requires petition of a beneficially interested person, notice to trustee and hearing. 2) If trustee becomes insane or otherwise incapable/unsuitable of discharging the trust; Requires notice to all interested parties. 3) If trustee assumes to be possessing in his own right and thus renounces the trust. [Martinez v. Grano] General Rule: A trustee cannot acquire the trust estate by prescription because for the purpose of prescription, the possession of the property by the trustee is not an adverse possession, but only a possession in behalf of the owner of the same. [Palma v. Cristobal] Exception: If there is an open, •

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Trustee is ordered by the court to apply for appointment

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If trustee fails to comply with the court order, the court will declare the trust vacant and appoint a new trustee. The trust shall vest in the new trustee as if he was originally appointed.

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SPECIAL PROCEEDINGS V.

ADOPTION

DEFINITION [Sec. 3, Rule on Adoption] 1) CHILD – Person below 18 years of age at the time of the filing of the petition for adoption. 2) CHILD LEGALLY AVAILABLE FOR ADOPTION – Child who was in/voluntarily committed to DSWD or to a duly licensed and accredited child-placing/child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian/adopter. 3) VOLUNTARILY COMMITTED CHILD – One whose parents knowingly and willingly relinquish parental authority over him in favor of DSWD. 4) INVOLUNTARILY COMMITTED CHILD – One

REMEDIAL LAW exceeding 60 days in 1 year does not break the continuity requirement. 14) ALIEN – Any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa.

NATURE OF PROCEEDING •

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Adoption is a juridical act which created between two persons a relation similar to that which results from legitimate filiation. [Prasnick v. Republic] Adoption is a privilege — not innate or fundamental, but rather a right created by statute. It is a privilege which is governed by the state’s determination of what is for the best welfare of the child. [Lahum v. Sibulo (2003 )]

IN REM PROCEEDING

















SPECIAL PROCEEDINGS 1) The child’s best interest is the paramount consideration in the child’s care/custody/adoption. 2) The State shall provide alternative protection and assistance to foundlings, neglected, orphaned and abandoned children.

QUALIFIED ADOPTERS [Sec. 4, Rule on Adoption]

1) Any Filipino citizen: a) of legal age; b) in possession of full civil capacity and legal rights; c) of good moral character; d) has not been convicted of any crime involving moral turpitude; e) who is emotionally and psychologically capable of caring for children; f) at least 16 years older than the adoptee;

REMEDIAL LAW QUALIFIED ADOPTEES [Sec. 5, Rule on Adoption]

1) Any person below 18 years of age who was voluntarily committed to DSWD or judicially declared available for adoption; 2) The legitimate child of one spouse, by the other spouse; 3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; 4) A person of legal age regardless of civil status, if, prior to the adoption, said he was consistently considered and treated by the adopters as their own child since minority; 5) A child whose adoption was rescinded; 6) A child whose biological/adoptive parents died. But no proceedings shall be initiated within 6 months from the time of the parents’ death; 7) A child not disqualified by law or these rules.

















SPECIAL PROCEEDINGS If petition for rectification a) of simulated birth b)

c)

d)

If petition for adoption of foundling, abandoned,

a)

That it is an application for rectification of a simulated birth That the simulation was made prior to the effectivity date of RA 8552, and that the application for rectificaion and the petition for adoption were filed within 5 years from that date That the petitioner made the simulation for the adoptee's best interests That the adoptee was consistently considered and treated by petitioner as his own child Facts showing that the child is a foundling,

REMEDIAL LAW •

•

If the petition and attachments are sufficient in form and substance, the court shall issue an order. Order’s contents: 1) Adoptee’s registered name in the birth certificate, and the names by which the adoptee has been known (to be stated in the caption); 2) Petition’s purpose; 3) Complete name which the adoptee will use if the petition is granted; 4) Hearing’s date and place of hearing (within 6 months from the date of the order’s issuance) Copy of the order shall be published at least once a week for 3 successive weeks before the hearing, in a newspaper of general circulation in the province/city where the court is situated. •

















SPECIAL PROCEEDINGS

•

The petitioner and the adoptee must personally appear. The petitioner must testify. The court shall verify from the social worker to: 1) determine WON the biological parent was properly counseled against making hasty decisions caused by strain/anxiety to give up the child; 2) ensure that all measures to strengthen the family have been exhausted; 3) ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

SUPERVISED TRIAL CUSTODY [Sec. 15, Rule on Adoption] •

Before issuance of the adoption decree, the court shall give the adopter trial custody of the adoptee for at least 6 months. Within this period, the parties are expected to adjust

REMEDIAL LAW 1) Name by which the child is to be known and registered; 2) Order for the COC to issue to the adopter a certificate of finality upon expiration of the 15day reglementary period for appeal; 3) Order for the adopter to submit a certified true copy of the adoption decree and the certificate of finality to the Civil Registrar where the child was originally registered, within 30 days from receipt of the certificate of finality. In case of change of name, the decree shall be submitted to the Civil Registrar where the issuing court is situated. 4) Order for the Civil Registrar of the place where the adoptee was registered: a) to annotate on the adoptee’s original birth certificate the adoption decree, within 30 days from receipt of the certificate of finality; b) to issue a birth certificate which shall not

















SPECIAL PROCEEDINGS • •

The adoptee who is over 18 years of age. With the assistance of: 1) DSWD, if he is a minor; 2) His guardian/counsel, if he is over 18 years of age but is incapacitated.

WHEN TO FILE THE PETITION FOR RESCISSION [Sec. 21, Rule on Adoption] Within 5 years: 1) After reaching the age of majority, if the adoptee is incapacitated; 2) After recovery from incompetency, if the adoptee is incompetent.

•

ORDER TO ANSWER [Sec. 22, Rule on Adoption] The court shall order the adverse party to answer the petition within 15 days from receipt of a copy thereof. •

JUDGMENT [Sec. 23, Rule on Adoption]

REMEDIAL LAW cannot be placed in a foster/adoptive family or cannot be cared for in the Philippines; 2) To ensure that the child enjoys the same protection accorded to children in domestic adoption; 3) To ensure that the placement does not result in improper financial gain for those involved.

QUALIFIED ADOPTEES [Sec. 29, Rule on Adoption] •

Only a child legally available for domestic adoption may be the subject of inter-country adoption.

VENUE [Sec. 28, Rule on Adoption] 1) Family Court having jurisdiction over the place where the child resides or may be found. 2) Directly with the Inter-Country Adoption Board.



















SPECIAL PROCEEDINGS 7) Character reference from the local church/minister, the petitioner’s ER and a member of the immediate community who have known the petitioner for at least 5 years; 8) Full body postcard-size pictures of the petitioner and his immediate family taken at least 6 months before the filing of the petition.

REMEDIAL LAW VI.

HOSPITALIZATION OF INSANE PERSONS

PROCEDURE IN THE HOSPITALIZATION OF INSANE PERSONS

















SPECIAL PROCEEDINGS 5) The court shall make proper provisions for the custody of the ward’s property until a guardian is properly appointed.

BURDEN TO PROVE INSANITY •

To prove insanity, the burden is on the party who alleges insanity.

REMEDIAL LAW VII. ABSENTEES PROCEDURE FOR DECLARATION OF ABSENCE UNDER RULE 107 Petition for declaration of absence

















SPECIAL PROCEEDINGS

REMEDIAL LAW

2) Heirs instituted in a will; 3) Relatives who will succeed by intestacy; 4) Those who have some (over the absentee’s property) subordinated to the condition of his death.

VIII. WRITS

PETITION’S CONTENTS [Rule 107, Sec. 3] 1) Jurisdictional facts;

PROCEDURE FOR ISSUANCE OF THE WRIT OF HABEAS CORPUS UNDER RULE 102

A. HABEAS CORPUS


















General rule: HC writ shall not issue if the restraint is voluntary. [Kelly v. Director of Prisons ] Exception: HC is a proper remedy to enable parents to regain custody of a minor, even if the minor is in the custody of a 3rd person of his own free will. [Tijing v. CA] •

REMEDIAL LAW

•

court had jurisdiction. [Harden v. Director (1948)] HC writ is not intended as a substitute for the functions of a trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. HC writ is not ordinarily available in


















If the person to whom the writ is directed cannot be found or does not have custody of the detained person, serve the writ on any person who has such custody. [Rule 102, Sec. 7]

HC WRIT’S EXECUTION

REMEDIAL LAW apparent effect of the process. [Feria v. CA (2000)] Exception: [Rule 102, Sec. 13 ] •

if custody is under warrant of commitment pursuant to law

return is considered prima

if custody is by any alleged private authority

return is only a plea of













































































































































up08_specpro.pdf

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