Professional Documents
Culture Documents
Table of Contents
SPECIAL PROCEEDINGS
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SPECIAL PROCEEDINGS
PRELIMINARY MATTERS
A. Special Proceedings
B. Applicable Rules
C. Venues and Jurisdictions of Special
Proceedings
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SPECIAL PROCEEDINGS
X. Revocation
of
Administration,
Death, Resignation, and Removal of
Executors or Administrators
A. Administration revoked if will
discover. Proceedings thereupon
B. Court may remove or accept
resignation
of
executor
or
administrator. Proceedings upon
death, resignation or removal
C. Acts
before
revocation,
resignation, or removal to be valid
D. Powers of new executor or
administrator
XI. Inventory and Appraisal. Provision
for Support of Family
A. Inventory and appraisal to be
returned within 3 months
B. Articles not to be inventoried:
C. Allowance to widow and family
D. Provision for support
XII.General Powers and Duties of
Executors and Administrators
A. Executor or administrator to have
access to partnership books and
property. How right enforced
B. Keep buildings in tenantable
repair
C. Right
to
possession
and
management of the real and
personal properties
XIII.
Accountability
and
Compensation of Executors and
Administrators
A. Executor
or
administrator
chargeable with all estate and
income
B. Not to profit by increase or lose by
decrease in value
C. When not accountable
D. Accountable for income from
realty used by him
E. Accountable if he neglects or
delays to raise or pay money
F. When allowed money paid as
costs
G. What expenses and fees allowed
executor or administrator. Not to
charge for services as attorney.
Compensation provided by will
controls unless renounced.
H. When executor or administrator
to render account
I. Examination on oath by court
J. Account to be settled on notice
K. Surety on bond may be party to
accounting
XIV.
Claims Against Estate
A. Notice to creditors to be issued by
court
B. Time within which claims shall be
filed
C. Publication of notice to creditors
D. Filing copy of printed notice
E. Claims which must be filed under
the notice. If not filed, barred;
exceptions
F. Solidary obligation of decedent
Table of Contents
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CHAPTER 3: Escheats
I. When Allowed
II. Duty of court; when petition
sufficient
III. Court shall adjudge that the estate
shall escheat
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the
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SPECIAL PROCEEDINGS
Table of Contents
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F. Penalties
G. Judgment and Appeal
H. Return of Judgment,
thereon
I. Effects of Other Actions
J. Other Matters
IV. Writ Matrix
Hearing
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SPECIAL PROCEEDINGS
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Preliminary Matters
Special Proceedings
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE
Prof. Theodore O. Te
FACULTY EDITOR
LECTURES
Edel Cruz
SUBJECT EDITOR
HEAD
SPECIAL PROCEEDINGS
--------
ACADEMICS COMMITTEE
Samantha Poblacion
REMEDIAL LAW
Kae Guerrero
Choi Ocampo
LEAD WRITER
Rania Joya
Robin Concepcion
Shamby Yambot
SPECIAL PROCEEDINGS
WRITERS
-------Leo Zulueta
Preliminary Matters
A. SPECIAL PROCEEDINGS
B. APPLICABLE RULES
C. VENUES
AND
JURISDICTIONS
SPECIAL PROCEEDINGS
FOR
A. SPECIAL PROCEEDINGS
B. APPLICABLE RULES
Preliminary Matters
Escheat
Appointment of
Guardians
Appointment of
Trustees
Adoption
Rescission of Adoption
Habeas Corpus
Habeas Data
Amparo
Change of Name
Appoinment of
Representative of
Absentee/ Declaration
of Absence
Cancellation /
Correction of Entries
in Civil Registries
Petition for declaration
of nullity, annulment,
legal separation
Jurisdiction
MTC if gross value of the
estate does not exceed P
300,000, or does not exceed
P400,000 in Metro Manila
Else, RTC
RTC
RTC
RTC
SPECIAL PROCEEDINGS
Special Proceeding
Settlement of the
Estate of a Deceased
Person
Family Court
RTC
RTC
Family Court
Family Court or ICAB
Family Court
SC, CA, RTC, MTC in the
province or city in case there is
no RTC judge
Sandiganbayan only in aid of
its appellate jurisdiction
Family Court, CA, SC
RTC generally
If concerning public data files
or government offices, SC, CA
or Sandigabayan
RTC, Sandiganbayan, CA, SC
or any justice thereof
RTC
Local Civil Registry/ Philippine
consulate
RTC
RTC
Local Civil Registry/ Philippine
consulate
Family Court
Ordinary Action
To protect/enforce a
right or prevent/
redress a wrong
Involves 2 or more
parties
Governed by ordinary
rules supplemented
by special rules
Initiated by pleading,
and parties respond
through an answer
Special Proceeding
To establish a
right/status/fact
May involve only 1
party
Governed by special
rules, supplemented by
ordinary rules
Initiated by petition,
parties respond through
an opposition
SPECIAL PROCEEDINGS
If decedent is:
Inhabitant of the Philippines at time of
death (citizen/alien) RTC of the
province in which he resides
Inhabitant of foreign country RTC of
any province in which he had estate
Jurisdiction:
court
first
taking
cognizance shall exercise jurisdiction to
the exclusion of all other courts.
The jurisdiction assumed by a court, so
far as it depends on the place of
residence of the decedent, or of the
location of his estate, shall not be
contested in a suit or proceeding,
except:
In an appeal from that court, in the
original case, OR
When the want of jurisdiction appears
on the record.
Conversion of an intestate into
testate proceeding
A matter of form and lies within the
sound discretion of the court.
1. Jurisdiction of MTCs
When the value of the estate does not
exceed P300,000 or P400,000 in Metro
Manila.
2. Rule 73 relates to venue and not to
jurisdiction
The place of residence of the deceased
in settlement of estates, probate of will,
and issuance of letters of administration
does not constitute an element of
jurisdiction over the subject matter. It is
only constitutive of venue.
3. Meaning of term resides
Resides - in the section is viewed in its
popular sense, meaning, the personal,
actual or physical habitation of a
person, actual residence of place of
abode.
4. Probate
court
is
of
limited
jurisdiction
General rule: When questions arise as
to ownership of property alleged to be
part of the estate of the deceased but
claimed by some other person to be his
property, not by virtue of any right of
inheritance from the deceased but by
title adverse to that of the deceased and
his estate, such questions cannot be
determined
in
the
courts
of
administration proceedings. It must be
settled in a separate action.
For the purpose of determining whether
a certain property should or should not
be included in the inventory of the
estate proceeding, the probate court
may pass upon the title thereto, but
such determination is provisional, not
conclusive, and is subject to final
decision.
SPECIAL PROCEEDINGS
B. Where
Estate
Settled
Dissolution of Marriage
upon
C. Process
D. Presumption of Death
A.
B.
C.
D.
E.
SETTLEMENT
OF
EXTRAJUDICIAL
SETTLEMENT
BY
AGREEMENT BETWEEN HEIRS
SUMMARY SETTLEMENT OF SMALL VALUE
BOND TO BE FILED BY DISTRIBUTEES
LIABILITY OF DISTRIBUTEES AND ESTATE
PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
A. Extrajudicial
Settlement
Agreement between Heirs
by
SPECIAL PROCEEDINGS
II. SUMMARY
ESTATE
7. Publication
Fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation 3
times a week, once each week;
the
9. Judicial Administration
General Rule: when a person dies
leaving property, the same should be
judicially
administered
and
the
competent court should appoint a
qualified administrator, in the order
established in Sec 6. of Rule 78, in case
the deceased left no will, or in case he
had left one, should he fail to name an
executor therein.
Exception: Summary settlement of
estate.
10. Different modes of settlement of
estate of deceased:
a. Extrajudicial settlement of estate
b. Partition
c. Summary settlement of estates of
small value
d. Probate of will
e. Petition for letters of administration
in intestacy.
11. Judicial administration not favored
When a person dies without leaving
pending obligations to be paid, his
heirs, whether of age of not, are not
bound to submit the property to a
judicial administration, which is always
long and costly, or to apply for the
appointment of an administrator by the
court.
In such case the judicial administration
and
the
appointment
of
an
administrator are superfluous and
unnecessary proceedings.
There must be good reason to warrant
judicial administration. Among those
NOT good reasons:
Dispute among heirs;
Multiplicity of suits;
To have legal capacity to appear.
B. Summary
Value
Settlement
of
Small
1. Procedure:
a. Death of the decedent
b. An
application
for
summary
settlement with an allegation that
the gross value of the estate does
not exceed P10K
c. Publication of notice of the fact of
extrajudicial settlement once a week
for 3 consecutive weeks in a
newspaper of general circulation
(the court may also order notice to
be given to other persons as such
court may direct)
d. Hearing to be held not less than 1
month nor more than 3 months
from the date of the last publication
of notice
e. Court
to
proceed
summarily,
without
appointing
an
executor/administrator (e/a), and to
make orders as may be necessary
f. Grant allowance of the will, if any
g. Determine persons entitled to estate
h. Pay debts of estate which are due
i. Filling of bond fixed by the court
j. Partition of estate.
2. Requisites:
a. Gross value of estate: x < P10,000
(now x < P300,000 outside Metro
Manila and x < 400,000 in Metro
Manila)
b. Fact is made to appear to the RTC
c. Through petition of an interested
person
d. Upon hearing
i. Held not less than 1 month nor
more than 3 months
ii. Counted from the date of the
last publication of a notice
e. Notice
i. Which shall be published once a
week for 3 consecutive weeks
SPECIAL PROCEEDINGS
3. Court will:
Determine who are the persons
legally entitled to participate in the
estate,
Apportion and divide it among them
after the payment of such debts of
the estate as the court shall then
find to be due
Afterwards, the heirs shall be entitled to
receive and enter into the possession of
the portions of the estate so awarded to
them respectively.
There is no requirement regarding the
lack of debts (unlike extrajudicial
partition) in summary settlement of
estates of small value since the court
will make provisions for such in its
resolution of the proceedings
4. Recording:
Orders and judgments clerk of court
Order of partition or award of real estate
registrars office
D. Liability
Estate
of
Distributees
and
1.
satisfying
such
lawful
participation
There are debts outstanding which have
not been paid.
An heir or other person has been
unduly
deprived
of
his
lawful
participation payable in money
The court having jurisdiction of the
estate may,
by order for that purpose,
after hearing,
settle the amount of such debts or
lawful participation, and
order how much and in what manner
each distributee shall contribute in
the payment thereof, and
may issue execution, if circumstances
require, against the bond provided
in the preceding section or against
the real estate belonging to the
deceased, or both.
Such bond and real estate shall remain
charged with a liability to creditor, heirs
or other persons for the full period of 2
years
after
such
distribution,
notwithstanding any transfers of real
estate that may have been made.
Duty of the court:
Hear the case
Settle the amount
Order how much and in what manner
each distribute shall contribute in the
payment thereof
If
circumstances
require,
issue
execution against the bond, or the real
estate belonging to the deceased, or
both
2. Bond
and
real
estate
remain
charged
with a liability to creditors, heirs, or
other persons for the full period of 2
years
after
such
distribution,
notwithstanding any transfers of real
estate that may have been made
3. Rule not applicable:
a. To persons who have participated or
taken part or had notice of the
extrajudicial partition
b. When the provisions of Sec. 1 of
Rule 74 have been strictly complied
with (all persons or heirs of the
decedent have taken part in the
extrajudicial settlement or are
represented
by
themselves
or
through guardians)
This is only a bar against the parties
who had taken part in the
extrajudicial proceedings, but
SPECIAL PROCEEDINGS
5. Exception:
Prescriptive period for the filling of the
action for reconveyance based on
implied trust should be reckoned from
the actual discovery of the fraud where
the registration where there was bad
faith in securing the certificates of titles
and, is therefore a holder of the said
certificate in bad faith. The Torrens title
does not furnish a shield for fraud.
6. Rescission
is the proper remedy for preterition.
III.PRODUCTION
ALLOWANCE
NECESSARY
OF
OF
WILL.
WILL
1. Procedure:
a. Death of the decedent;
b. Petition for probate of the will, if
any;
c. Court order fixing the time and
place for probate;
d. The court shall cause notice of such
time and place to be published 3
weeks successively in a newspaper
of general circulation. Notice shall
also
be
given
to
the
designated/known heirs, legatees
and devisees, and the executor if the
one petitioning for allowance of the
will is not the testator;
e. Issuance of letters testamentary/
administration;
f. Filling of claims;
g. Payment of claims; sale/mortgage/
encumbrance of estate properties;
h. Distribution of remainder, if any
(but can be made before payment if
bond is filled by the heirs).
2. Probate does not look into intrinsic
validity
Probate is merely the determination of
whether or not the testator, being of
sound mind, freely executed the will in
accordance
with
the
formalities
prescribed by law
Exception:
Under
exceptional
circumstances, the probate court is not
powerless to do what the situation
constrains it to do and pass upon
certain provisions of the will. It may
Page 149 of 370
SPECIAL PROCEEDINGS
4. Prescriptive period
Action to annul a deed of extrajudicial
settlement upon the ground of fraud
may be filed within 4 years from the
discovery of the fraud (deemed to have
taken place when said instrument was
filed with the Register of Deeds and new
certificates of title were issued in the
name of respondents respectively).
However in Amerol v. Bagumbaran (154
SCRA 396), the Court applied the New
Civil Code. Under Article 1144 (NCC),
the following actions must be brought
within 10 years from the time the right
of action accrues: (1) upon a written
contract; (2) upon an obligation created
by law; (3) upon a judgment.
Since implied or constructive trusts are
obligations created by law, then the
prescriptive period to enforce the same
prescribes in 10 years. Thus, an action
for reconveyance based on an implied or
constructive
trust
must
perforce
prescribe in 10 years and not otherwise.
C. Executor to Present
Accept or Refuse Trust
Will
and
May Be
WHO
MAY
PETITION
FOR
THE
ALLOWANCE OF WILL
CONTENTS OF THE PETITION
COURT TO APPOINT TIME FOR PROVING
WILL.
NOTICE
THEREOF
TO
BE
PUBLISHED
HEIRS,
DEVISEES,
LEGATEES,
AND
EXECUTORS TO BE NOTIFIED BY MAIL OR
PERSONALLY
PROOF AT HEARING. WHAT SUFFICIENT IN
ABSENCE OF CONTEST
PROOF OF LOST OR DESTROYED WILL.
CERTIFICATE THEREUPON
PROOF WHEN WITNESSES DO NOT
RESIDE IN PROVINCE
PROOF WHEN WITNESSES DEAD OR
INSANE OR DO NOT RESIDE IN THE
PHILIPPINES
GROUNDS FOR DISALLOWANCE OF WILL
CONTESTANT TO FILE GROUNDS FOR
CONTEST
SUBSCRIBING WITNESSES PRODUCED OR
ACCOUNTED
FOR
WHERE
WILL
CONTESTED
PROOF WHERE TESTATOR PETITIONS FOR
ALLOWANCE OF HOLOGRAPHIC WILL
CERTIFICATE OF ALLOWANCE ATTACHED
TO PROVE WILL. TO BE RECORDED IN
THE OFFICE OF REGISTER OF DEEDS
A. Who
May
Petition
Allowance Of Will
for
the
SPECIAL PROCEEDINGS
2. Jurisdictional facts:
Death of the decedent
Residence at the time of death in the
province where the probate court is
sitting
Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
During hearing:
Before introduction of will
o Compliance
with
notice
requirement must be shown
before introduction of will
o Testimony taken under oath and
reduced to writing.
No contest - Court will allow:
o On the testimony of 1 witness
o In absence of such, expert
testimony may be resorted to.
Do Not
SPECIAL PROCEEDINGS
1. Defect in petition
will not void the allowance of the will, or
the issuance of letters testamentary or
of administration with the will annexed.
2. Holographic will
Allowed if 3 witnesses who know the
handwriting of the testator testify to
such; expert testimony may also be
resorted to, nut both still needs be to
the satisfaction of the courts.
Petition
by
testator
holographic will
himself
of
1. If
there
are
no
contests
in
holographic wills
The fact that the affirms that the
holographic will and the signature are
in his own handwriting, shall be
sufficient evidence of the genuineness
and due execution thereof
2. If with contest
the
burden
of
disproving
the
genuineness and due execution thereof
shall be on the contestant
SPECIAL PROCEEDINGS
A. Will
Proved
Philippines
The
Allowed,
and
Effect
SPECIAL PROCEEDINGS
Outside
D. Letters
Testamentary
When Will Allowed
Issued
SPECIAL PROCEEDINGS
E. Where
Some
Co-Executors
Disqualified, Others May Act
waste,
improvidence
or
mismanagement, have the highest
interest and most influential motive to
administer the estate correctly.
Mere failure to apply for letters of
administration
does
not
remove
preference.
D. Opposition
to
Administration
Petition
for
VIII.
RULE
80
SPECIAL
ADMINISTRATOR (SA)
A.
APPOINTMENT
OF
SPECIAL
ADMINISTRATOR
B. POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR
C. WHEN SPECIAL ADMINISTRATOR CEASE;
DUTIES
A. Appointment of SA
1. SA will be appointed:
When there is delay in granting letters
testamentary or administration; or
By any cause, including an appeal from
allowance or disallowance of a will.
2. Special administrator:
Will take possession and charge of the
estate
Until:
the questions causing the delay are
decided and
e/a appointed
3. There must first be notice and
publication
Notice through publication of the
petition is a jurisdictional requirement
even in the appointment of a SA.
Appointment of special administrator
lies entirely in the sound discretion of
the court.
4. Order
of
appointment
is
discretionary
The basis for appointing a special
administrator is broad enough to
include any cause or reason for delay in
granting letters testamentary or of
SPECIAL PROCEEDINGS
in
support
of
their
respective
allegations, and if
a. Satisfied that the decedent left no
will, or
b. That there is no competent and
willing executor,
It shall order the issuance of letters of
administration to the party best entitled
IX. BOND
OF
EXECUTORS
ADMINISTRATORS
A.
Administrators bond
Terms and effectivity of bond does not
depend on payment of premium and
does
not
expire
until
the
administration is closed.
As long as the probate court retains
jurisdiction of the estate, the bond
contemplates
a
continuing
liability.
6. Nature of appointment of SA
An
order
appointing
a
special
administrator is interlocutory in nature,
a mere incident to the judicial
proceedings. No appeal lies herein
C. When
Special
Cease; Duties
Administrator
When
letters
testamentary/
administration are granted on the estate
of the deceased
He shall deliver to the e/a the goods,
chattels, money, and estate of the
deceased in his hands.
The e/a may prosecute to final
judgment suits commenced by such
SA.
AND
SPECIAL PROCEEDINGS
X. REVOCATION OF
ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF
EXECUTORS OR
ADMINISTRATORS
A. ADMINISTRATION REVOKED IF WILL
DISCOVER. PROCEEDINGS THEREUPON
B. COURT MAY REMOVE OR ACCEPT
RESIGNATION
OF
EXECUTOR
OR
ADMINISTRATOR. PROCEEDINGS UPON
DEATH, RESIGNATION OR REMOVAL
C. ACTS
BEFORE
REVOCATION,
RESIGNATION, OR REMOVAL TO BE VALID
D. POWERS
OF
NEW
EXECUTOR
OR
ADMINISTRATOR
SPECIAL PROCEEDINGS
C. Acts
Before
Revocation,
Resignation, or Removal to Be
Valid
XI. INVENTORY
AND
APPRAISAL.
PROVISION FOR SUPPORT OF
FAMILY
A. INVENTORY AND APPRAISAL TO
RETURNED WITHIN 3 MONTHS
B. ARTICLES NOT TO BE INVENTORIED
C. ALLOWANCE TO WIDOW & FAMILY
D. PROVISION FOR SUPPORT
BE
XII. GENERAL
POWERS
DUTIES OF EXECUTORS
ADMINISTRATORS
AND
AND
A.
A. Executor or Administrator to
Have Access to Partnership Books
and Property. How Right Enforced
1. Access to partnership books and
property
At all times:
have access to, and may examine and
take copies of, books and papers
relating to the partnership business,
Make examine and make invoices of the
property
belonging
to
such
partnership;
The surviving partner or partners, on
request, shall exhibit to him all such
books, papers, and property in their
hands or control.
2. Court duty
Order any such surviving partner or
partners to freely permit the exercise of
the rights, and to exhibit the books,
SPECIAL PROCEEDINGS
B. Keep Buildings
Repair
in
Tenantable
A. Executor
or
Administrator
Chargeable with all Estate and
Income
and
and
A. EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE &
INCOME
B. NOT TO PROFIT BY INCREASE OR LOSE BY
DECREASE IN VALUE
C. WHEN NOT ACCOUNTABLE
D. ACCOUNTABLE
FOR
INCOME
FROM
REALTY USED BY HIM
E. ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
F. WHEN ALLOWED MONEY PAID AS COSTS
G. WHAT EXPENSES & FEES ALLOWED
EXECUTOR OR ADMINISTRATOR. NOT TO
CHARGE FOR SERVICES AS ATTORNEY.
COMPENSATION PROVIDED BY WILL
CONTROLS UNLESS RENOUNCED.
H. WHEN EXECUTOR OR ADMINISTRATOR TO
RENDER ACCOUNT
from
1. Accountable
If the e/a uses or occupies any part of
the real estate himself, he shall account
for it as may be agreed upon between
him and the parties interested, or
adjusted by the court with their assent;
and if the parties do not agree upon the
sum to be allowed, the same may be
ascertained by the court, whose
determination in this respect shall be
final
E. Accountable if He Neglects or
Delays to Raise or Pay Money
1. Accountable if:
SPECIAL PROCEEDINGS
C. Right
to
Possession
Management of the Real
Personal Properties
Allowed
Money
Paid
as
1. Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the
estate and for its management for
purpose of liquidation, payment of
debts, and distribution of the residue
among persons entitled thereto
2. Not necessary expenses
a. Expenses for death anniversary;
b. Expenses incurred by a presumptive
heir for her appearance and that of
her witnesses at the trial to oppose
the probate of an alleged will;
c. Expenses for the settlement of the
question as who are entitled to the
estate left by the deceased;
d. Expenses incurred by the e/a to
procure a bond
e. Personal expenses of the occupant
of the heir of the family residence;
f. Expenses for stenographic notes,
unexplained
representation
expenses.
3. Attorneys fees
Administrator
may
not
attorneys fees from estate
recover
SPECIAL PROCEEDINGS
F. When
Costs
XIV.
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
SPECIAL PROCEEDINGS
1. Statute of non-claims
Purpose: to settle the estate with
dispatch, so that the residue may be
delivered to the persons entitled thereto
without their being afterwards called
upon to respond in actions for claims,
which, under the ordinary statute of
limitations have not yet prescribed.
The period, once fixed by the courts, is
mandatory
SPECIAL PROCEEDINGS
4. Support claims
Claim for support should not be
granted, but must wait until all claims
against the estate have been settled
(Gutiererez Jr. v. Macandog (1087))
5. Execution of final judgment not
proper remedy but filing of claim
While the judgment in a civil case may
have become final and executory,
execution is not the proper remedy to
enforce payment thereof.
The ordinary procedure by which to
settle claims of indebtedness against
the estate is for the claimant to present
a claim before the probate court.
6. Mandamus not available
In absence of any showing that judge
had already allowed the administrator
to dispose the estate and pay the debts
and legacies of the deceased, a writ of
mandamus will not issue to compel him
to order payment of petitioners claim
7. This rule is mandatory
The requirement is for the purpose of
protecting the estate of deceased. The
e/a is informed of claims against it,
thus enabling him to examine each
claim and to determine whether it is a
proper one which should be allowed.
The above rule strictly requires the
prompt presentation and disposition of
claims against the decedents estate in
order to settle the affairs of the estate as
soon as possible, pay off its debts and
distribute the residue.
8. Charges against conjugal property
Same rules apply for debts contracted
chargeable
against
the
conjugal
property.
H. Claim
of
Executor
or
Administrator against an Estate
1. If executor or administrator has
claim against the estate
He shall give notice thereof to the court
Court
shall
appoint
a
special
administrator
Who will have the same power and
liability, in the adjustment claims
Court may order e/a to pay the special
administrator necessary funds to defend
such claim (one of the 2 instances of
appointment of special administrators
in the Rules, the other regarding delay
in proceedings, supra)
SPECIAL PROCEEDINGS
M. Judgment Appealable
1. Court will rule on the claim
Approve
Pay, in due course of administration the
amount due
Such shall not create any lien on the
property of the estate or give
judgment creditor payment priority.
Disapprove
2. Judgment
Filed, together with record of
administration proceedings
With notice to parties
Appealable as in ordinary cases
the
N. Costs
SPECIAL PROCEEDINGS
F.
G.
H.
I.
J.
Actions not to be brought against e/aClaim for the recovery of money or debt
or interest
Actions to be brought
Recover real or personal property or
interest therein;
Or to enforce a lien thereon; and
Actions to recover damages for an injury
to a person or property
SPECIAL PROCEEDINGS
E.
AGAINST
AND
2. Injury
Injury to property is not limited to
injuries to specific property, but extends
to other wrongs by which personal
estate is injured or diminished.
Maliciously
causing
a
party
to
unnecessary expenses is certainly
injury to the partys property.
1. Complainant
Executor, administrator, heir, legatee,
creditor, or other individual interested
in the estate of the deceased.
E. Mortgage Due
Foreclosed
Estate
He
may
foreclose
the
belonging to the estate.
May
Be
mortgage
F. Proceedings
When
Property
Concealed,
Embezzled
or
Fraudulently Conveyed
2. What:
A person is suspected of having
concealed, embezzled, or conveyed away
any of the money, goods, or chattels of
the deceased; or
That such person has in his possession
or has knowledge of any deed,
conveyance, bond, contract, or other
writing which contains evidence of or
tends or discloses the right, title,
interest, or claim of the deceased.
3. Duty of the court
May cite such suspected person to
appear before it any may examine him
on oath on the matter of such
complaint;
If refuses to appear or answer Punish for contempt and commit to
prison until he submits to the order
The interrogatories put any such
person, and his answers thereto, shall
be in writing and shall be filed in the
clerk's office.
4. Purpose of the rule
To elicit information or secure evidence,
not to decide WON the property belongs
to the deceased or persons examined
(no power to adjudicate titles or
determine controverted rights).
Executor
or
2. Duty of court
May cite to appear before it a person
entrusted by an e/a with any part of the
estate of the deceased,
May require such person to render a full
account
On oath, of the money, goods, chattels,
bonds, account, or other papers
belonging to such estate as came to his
SPECIAL PROCEEDINGS
H. Embezzlement
Issued
Before
Letters
1. Consequence
Such person shall be liable to an action
in favor of the e/a of the estate for
double the value of the property sold,
embezzled, or alienated, to be recovered
for the benefit of such estate.
2. Double value rule does not apply
The liability for double the value of the
property does not apply to the manager
of the company who carries on the
business after the death of the principal
and applies the proceeds of sale to the
payment of debts contracted in running
the business.
Provided,
creditors
making
the
application pay such part of the costs
and expenses or give security therefor.
SPECIAL PROCEEDINGS
L.
A. Debts Paid
Sufficient
Full
If
Estate
1. If disputed
it may be proved and allowed or
disallowed by the court as the facts may
warrant
2. Court ruling:
Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive
payment to the same extent as the
other creditors if the estate retained
by the e/a is sufficient.
Claim not presented after becoming
absolute and allowed within 2 year
period
The assets retained in the hands of
the e/a, not exhausted in the
payment of claims, shall be
distributed by the order of the court
to the persons entitled;
But the assets so distributed may
still be applied to the payment of the
claim when established, and the
creditor may maintain an action
against the distributees to recover
the debt, and such distributees and
their estates shall be liable for the
debt in proportion to the estate they
have respectively received.
SPECIAL PROCEEDINGS
in
H. Dividends
to
Be
Proportion to Claims
Paid
in
J. Insolvent
Creditors
Resident;
I. Insolvent Non-Resident
Foreign
SPECIAL PROCEEDINGS
N. Creditors
to
Be
Paid
in
Accordance With Terms of Order
XVII. SALES,
MORTGAGES,
OTHER
ENCUMBRANCES
PROPERTY OF DECEDENT
A.
B.
C.
D.
1. Period:
x < 1 year
Court may extend the time to x < 6
months per extension
Whole period to the original e/a MUST
be only x < 2 years
F.
2. Requisites
E/A must apply
Notice must be given as to time and
place of hearing
Court must hear it
I.
E.
G.
H.
SALE
OF
PERSONAL
ESTATE;
REQUIREMENTS
SALE, MORTGAGE, OR ENCUMBRANCE
(S/M/E) OF REAL PROPERTY
REQUISITES FOR DISALLOWING S/M/E
REAL OR PERSONAL
SALE OF WHOLE OR PART OF PERSONAL
OR REAL ESTATE
PERSONAL/REAL
S/M/E
IS
NOT
NECESSARY TO PAY DEBTS, EXPENSES
OF ADMINISTRATION OR LEGACIES IN
THE PHILIPPINES
COURT AUTHORIZE S/M/E OF REALTY
ACQUIRED
ON
EXECUTION
OR
FORECLOSURE
REGULATIONS FOR AUTHORIZING S/M/E:
WHEN
COURT
MAY
AUTHORIZE
CONVEYANCE
OF
REALTY
WHICH
DECEASED CONTRACTED TO CONVEY
WHERE THE DECEASED IN HIS LIFETIME
HELD REAL PROPERTY IN TRUST FOR
ANOTHER PERSON
A. Sale
of
Personal
Requirements
Estate;
Application of e/a
Written notice to heirs and
persons interested
Court may order the sale of the
whole or part of personal estate.
other
1. When:
If necessary for the purpose of paying
debts, expenses of administration or
legacies or
Preservation of property
1. Requisites
E/A to apply with court
Written notice to the heirs, devisees
and legatees residing in the
Philippines
Authorize so much as may be
necessary of the real estate, in lieu
of personal estate
For the purpose of paying such
Page 170 of 370
SPECIAL PROCEEDINGS
AND
OF
G. Regulations
S/M/E:
for
Authorizing
SPECIAL PROCEEDINGS
H. When
Court
May
Authorize
Conveyance of Realty Which
Deceased Contracted to Convey
1. Not authorized
But no such conveyance shall be
authorized
until
notice
of
the
application for that purpose has been
given personally or by mail to all
persons interested, and such further
SPECIAL PROCEEDINGS
6. Recording
In the registry of deeds of the province
in which the real estate s/m/e together
with a certified copy of the order of the
court, together with the deed of the e/a
for such real estate, which shall be as
valid as if the deed had been executed
by the deceased in his lifetime
XVIII. DISTRIBUTION
AND
PARTITION OF THE ESTATE
A. WHEN ORDER FOR DISTRIBUTION OF
RESIDUE MADE
B. QUESTIONS AS TO ADVANCEMENT MADE,
OR ALLEGED TO HAVE BEEN MADE, BY
THE DECEASED TO ANY HEIR
C. EXPENSES OF PARTITION
D. RECORDING
OF
THE
ORDER
OF
PARTITION OF ESTATE
E. EFFECT
OF
FINAL
DECREE
OF
DISTRIBUTION
or
person
SPECIAL PROCEEDINGS
Hearing
Court shall assign the residue of the
estate to the persons entitled to the
same,
Naming them and the proportions, or
parts, to which each is entitled,
Such persons may demand and recover
their respective shares from the e/a, or
any other person having the same in his
possession.
If there is a controversy as to who are
heirs or shares heard and decided as
in ordinary cases.
5. Project of partition
the e/a has no duty to prepare and
present the same under the Rules.
The court may, however, require him to
present such project to better inform
itself of the condition of the estate.
A project of partition is merely a
proposal for the distribution of the
hereditary estate which the court may
accept or reject.
It is the court that makes that
distribution of the estate and determine
the persons entitled thereto
B. Questions as to Advancement
Made, or Alleged to Have Been
Made, by the Deceased to Any
Heir
C. Expenses of Partition
D. Recording of the
Partition of Estate
Order
of
Decree
of
1. Nature of proceedings
In rem, which is binding against the
whole world.
All persons having interest in the
subject matter involved, whether they
are notified or not, are equally bound.
The court acquires jurisdiction over all
persons
interested,
through
the
publication of the notice prescribed and
any order that may be entered therein is
binding against all of them.
The only instance where a party
interested in a probate proceeding may
have a final liquidation set aside is
when he is left out by reason of
circumstances beyond his control or
through mistake or inadvertence not
imputable to negligence.
Even then, the better practice to secure
relief is reopening of the same case by
proper motion within reglamentary
period, instead of an independent
action, the effect of which, if successful,
would be for another court or judge to
throw out a decision or order already
final and executed and reshuffle
properties long ago distributed and
disposed of.
2. Prohibition against interference by
other courts
General Rule: a court should not
interfere with probate proceedings
pending in a co-equal court.
A separate action (example: to allow a
spurious child to present evidence on
his filiation and to claim his share in
the decedents estate) is not allowed. It
is the probate court that has exclusive
jurisdiction to make a just and legal
distribution of the estate.
3. Order is appealable
An order
which
determines
the
distributive shares of the heirs of a
deceased person is appealable. If not
appealed within the reglamentary
period, it becomes final.
4. Writ of execution
The probate court generally cannot
issue a writ of execution because its
orders usually refer to the adjudication
of claims against the estate which the
e/a may satisfy without the necessity of
resorting to a writ of execution.
SPECIAL PROCEEDINGS
E. Effect
of
Final
Distribution:
XIX. TRUSTEES
1. Procedure
a. Allowance
of
the
instrument
creating the trust
b. Petition by the e/a or the person
appointed
as
trustee
in
the
instrument
c. Appointment of trustee by the court
d. Notice to all interested parties
e. Filling of bond by the trustee
2. Discretion of the Court in the
appointment of a trustee
The power to appoint a trustee is
discretionary with the court before
whom application is made, and the
appellate court will decline to interfere
except in cases of clear abuse.
B. Appointment
and
Powers
of
Trustee Under Will. Executor of
Former
Trustee
Need
Not
Administer Trust
1.
C. New Trustee
SPECIAL PROCEEDINGS
2. Non-acceptance
by
trustee
not
sufficient for failure of trust
A trust will never fail for want of a
trustee and a court will always appoint
a trustee where necessary to the
administration of a trust or to prevent
failure of the trust, where the necessity
arises from failure of appointment, from
non-acceptance or disqualification of a
trustee or from other cause; or the court
will execute the trust by its officers or
otherwise effect its accomplishment.
1. Requisites
Land in the Philippines held in trust
In favor of persons resident
Philippines
A trustee appointed abroad
of
2. Procedure:
a. Philippine land is held in trust for
Philippine residents, by a trustee
who derives authority from outside
the Philippines
b. Petition filed in the RTC of the
province where the land is situated
c. Notice to all interested parties
d. Trustee is ordered by the court to
apply for appointment.
3. Duty of such trustee
Petition the CFI of province where land
is situated
Notify all persons interested
Apply to the court for appointment as
such
4. Failure to do these
Court will declare such trust vacant and
shall appoint new trustee.
5. Territoriality of authority of trustee
The powers of a trustee appointed by a
Philippine court cannot extend beyond
the confines of the territory of the
Republic.
This is based on the principle that his
authority cannot extend beyond the
jurisdiction of the Republic, under
whose courts he was appointed.
of
the
SPECIAL PROCEEDINGS
H. Removal
Trustee
2. Resignation
He may resign; court will determine if
proper
1. Appraisal
When inventory is necessary and court
may require inheritance tax appraisers
to assist.
2. Compensation of trustee
According to the trust instrument; if
none it shall be fixed by the court
3. Factors
affecting
trustees
compensation
a. The character and powers of the
trusteeship
b. The risk and responsibility
c. Time
d. Labor and skill required in the
administrator of the trust, as well as
the care and management of the
estate.
Resignation
Petition
by
parties
interested
Due notice to the trustee
Hearing
of
beneficially
Petition
Notice
Hearing
Court may order such to be made
And the re-investment and application
of the proceeds thereof in such manner
as will best effect the objects of the trust
The petition, notice, hearing, order of
sale or encumbrance, and record of
proceedings, shall conform as nearly as
may be to the provisions concerning the
sale or encumbrance by guardians of
the property of minors or other wards
SPECIAL PROCEEDINGS
or
Chapter 3: Escheats
Chapter 3: Escheats
(Asked in the 2002 Bar Examinations)
I. WHEN ALLOWED
II. DUTY OF COURT; WHEN PETITION
SUFFICIENT
III. COURT SHALL ADJUDGE THAT THE
ESTATE SHALL ESCHEAT
IV. PERIOD TO APPEAL AND CLAIM THE
ESTATE
V. OTHER ACTIONS FOR ESCHEAT
I. WHEN ALLOWED
Person dies intestate
Seized of real property in the Philippines
Leaves no heir or person by law entitled
to the same
1. Procedure
a. Solicitor
General
or
his
representative in behalf of the
Republic of the Philippines to file the
petition
b. In the RTC of the province where the
deceased last resided or in which he
had estate, if he resided out of the
Philippines
c. If petition is sufficient in form and
substance, the court shall fix a date
and place for the hearing
o Which date shall not be more
than 6 months after the entry of
the order
d. The court shall direct a copy of the
order to be published before the
hearing at least once a week for 6
consecutive
weeks
in
some
newspaper of general circulation
published in the province, as the
court shall deem best
e. The court shall hear the case and
judge whether or not the estate shall
escheat
f. If the court rules in favor of the
Republic,
o It shall assign the personal
estate to the municipality or city
where the deceased last resided,
and the real estate to the
municipalities
or
cities,
respectively, in which the same
is situated.
o If the deceased never resided in
the Philippines, the whole estate
may
be
assigned
to
the
respective
municipalities
or
cities where the same is located.
o Such estate shall be for the
benefit of public schools, and
public charitable institutions
SPECIAL PROCEEDINGS
and
centers
in
said
municipalities or cities.
It
may
also
order
the
establishment of a permanent
trust, so that only the income
from the property shall be used.
II. DUTY
OF
COURT;
PETITION SUFFICIENT
Chapter 3: Escheats
WHEN
goes
to
the
municipality or city where same is
situated
If the deceased never resided in the
Philippines, the whole estate may be
assigned
to
the
respective
municipalities or cities where the same
is located.
Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers in said
municipalities or cities.
The court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
permanent trust, so that the only
income from the property shall be used
1. By whom:
Devisee, legatee, heir, widow, widower,
or other person entitled to such estate
appears
Such person shall have possession of
and title to the same, or if sold, the
municipality
or
city
shall
be
accountable to him for the proceeds
after deducting reasonable charges for
the care of the estate
2. Period for filing claim
5 years from date the property was
delivered to the state.
3. Conclusiveness
of
judgment
of
escheat
Conclusive upon persons notified by
advertisement to all persons interested.
4. Evidence required
Escheats and forfeitures are not favored
by law, and the modern rule under
statutes regulating escheat proceedings
is that the burden of proof rests on the
state to prove that the property in
question is in all respects liable to
escheat.
5. Waiver
The right to escheat may be waived,
either expressly or impliedly.
SPECIAL PROCEEDINGS
A. Guardianship In General
1. Guardianship
the power of protective authority given
by law and imposed on an individual
who is free and in the enjoyment of his
rights, over one whose weakness on
account of his age or other infirmity
renders him unable to protect himself
(Herrera).
2. Guardian
4. Purpose
GUARDIANSHIP
A. GUARDIANSHIP IN GENERAL
B. GUARDIANSHIP OF MINORS
1. PARENTS AS LEGAL GUARDIANS (ART.
225, FC)
2. RULE ON GUARDIANSHIP OF MINORS
(A.M. NO. 03-02-05-SC)
a. SCOPE & APPLICABILITY
b. PETITION FOR APPOINTMENT OF
GUARDIAN
c. THE GUARDIAN
d. SELLING & ENCUMBERING THE
PROPERTY OF THE WARD
e. REMOVAL,
RESIGNATION,
&
TERMINATION OF GUARDIANSHIP
C. GUARDIANSHIP
OF
INCOMPETENTS
(RULES 92-98)
a. SCOPE & APPLICABILITY
b. PETITION FOR APPOINTMENT OF
GUARDIAN
c. THE GUARDIAN
d. SELLING
&
ENCUMBERING
THE
PROPERTY OF THE WARD (RULE 95)
e. TERMINATION
OF
GUARDIANSHIP
(RULE 97)
3. Nature
1.
2.
3.
6. Ancillary Guardianship
B. Guardianship of Minors
1. Parents as Legal Guardians (Art.
225, FC)
SPECIAL PROCEEDINGS
I.
b. Petition
for
Guardian
Appointment
of
SPECIAL PROCEEDINGS
c. The Guardian
Order of Preference of Appointment
(in default of parents or a courtapproved guardian)
1. The surviving grandparent. In case
several grandparents survive, the
court shall select any of them taking
into
account
all
relevant
considerations.
Qualifications
The court shall consider the
guardians:
1. Moral character;
2. Physical,
mental
and
psychological condition;
3. Financial status;
4. Relationship of trust with the
minor;
5. Availability to exercise the
powers and duties of a guardian
for the full period of the
guardianship;
6. Lack of conflict of interest with
the minor;
7. Ability to manage the property of
the minor.
Powers and Duties
In general
Guardian of resident minor: Care
and custody of the person of his
ward and the management of his
property,
or
only
the
management of his property.
Guardian of non-resident minor:
Management of all his property
within the Philippines.
Specific duties
1. To pay the just debts of the ward
out of:
a. Personal property and the
income of the real property of
the ward, if the same is
sufficient;
b. Real property of the ward
upon obtaining an order for
its sale or encumbrance.
2. To settle all accounts of his
ward;
3. To demand, sue for, receive all
debts due him, or, with the
approval of the court, compound
for the same and give discharges
to the debtor on receiving a fair
and just dividend of the property
and effects;
4. To appear for and represent the
ward in all actions and special
proceedings,
unless
another
SPECIAL PROCEEDINGS
Procedure
1. Filing of petition.
2. Court shall fix a time and place for
hearing.
3. Notice Requirement
Court shall cause reasonable notice
to be given to:
a. The persons mentioned in
the petition;
b. The minor if he is fourteen
years of age or over.
For non-resident minors, notice
shall be given to the minor by
publication or any other means
as the court may deem proper.
Court may also direct other general
or special notice to be given.
4. Case Study Report Court shall
order a social worker to conduct a
case study of the minor and all the
prospective guardians and submit
his report and recommendation to
the court for its guidance before the
scheduled hearing.
5. Hearing
Compliance with notice requirement
must be shown.
The prospective ward shall be
presented to the court. If the minor
is non-resident, the court may
dispense with his presence.
At the discretion of the court, the
hearing on guardianship may be
closed to the public.
The records of the case shall not be
released without court approval.
6. Issuance or denial of letters of
guardianship.
7. Service of final and executory
judgment or order upon the Local
Civil Registrar of the municipality or
city where the minor resides and the
Register of Deeds of the place where
his property or part thereof is
situated, who shall annotate the
same in the corresponding title, and
report to the court their compliance
within fifteen days from receipt of
the order.
5.
7.
8.
9.
Bonds of Guardians
When filed: Before a guardian
enters upon the execution of his
trust, or letters of guardianship
issue.
Amount: As determined by the
Court.
Conditions: The guardian is:
1. To make and return to the court,
within three months after the
issuance of his letters of
guardianship,
a
true
and
The
court
may
authorize
reimbursement to the guardian,
other than a parent, of reasonable
expenses incurred in the execution
of his trust.
SPECIAL PROCEEDINGS
6.
Investment
of
Proceeds
and
Management of Property
The court may authorize and require
the guardian to invest the
proceeds
of
sales
or
encumbrances, and any other
money of his ward in his hands,
in real or personal property, for
the best interests of the ward.
The court may make such other
orders for the management,
investment, and disposition of
the property and effects, as
circumstances may warrant.
the
Grounds
When the income of a property
under
guardianship
is
insufficient to maintain and
educate the ward
When it is for the benefit of the ward
that his personal or real
property or any part thereof be
sold, mortgaged or otherwise
encumbered, and the proceeds
invested in safe and productive
security, or in the improvement
or
security
of
other
real
property.
e. Removal,
Resignation,
Termination of Guardianship
and
Removal
How: Upon reasonable notice to the
guardian.
Grounds: The guardian:
1. Becomes insane or otherwise
incapable of discharging his
trust;
2. Is found to be unsuitable;
3. Wasted or mismanaged the
property of the ward;
4. Failed to render an account or
make a return for thirty days
after it is due.
Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of
the guardian, the court shall
appoint a new one.
No motion for removal or resignation
shall be granted unless the
guardian has submitted the
SPECIAL PROCEEDINGS
Embezzlement, Concealment, or
Conveyance of Wards Properties
The court may require any person
suspected of having embezzled,
concealed, or disposed of any
money, goods or interest, or a
written instrument belonging to the
ward or his property to appear for
examination concerning any thereof
and issue such orders as would
secure the property against such
embezzlement,
concealment
or
conveyance, upon complaint of:
The guardian or ward, or;
Any person having actual or
prospective interest in the property
of the ward.
proper
accounting
of
the
property of the ward and the
court has approved the same.
2. Petition
Guardian
Where to file:
For resident incompetents: RTC of the
province or MTC of the municipality
or
chartered
city
where
the
incompetent resides.
For non-resident incompetents: RTC of
the province where the property of
the incompetent or part thereof is
situated.
Transfer of Venue - The court taking
cognizance
of
a
guardianship
proceeding may transfer the same to
the court of another province or
municipality wherein the ward has
acquired real property, if he has
transferred thereto his bona-fide
residence.
Contents
1. Jurisdictional facts;
2. Incompetency
rendering
the
appointment
necessary
or
convenient;
3. Names, ages, and residence of the
relatives of the incompetent, and of
the person having him in their care;
4. Probable value and character of his
estate;
5. Name of the person for whom letters
of guardianship are prayed.
Incompetents
a. Persons suffering the penalty of civil
interdiction;
b. Hospitalized lepers;
c. Prodigals;
d. Deaf and dumb who are unable to read
and write;
e. Those who are of unsound mind, even
though they have lucid intervals;
f. Persons not being of unsound mind, but
by reason of age, disease, weak mind,
and other similar causes, cannot,
without outside aid, take care of
themselves and manage their property,
of
(RULES 92-98)
The Rules on Guardianship (Rules 9298, RoC) apply to guardianship over the
person or property, or both, of
incompetents other than a minor.
The Rule on Guardianship of Minors
(A.M.
No.
03-02-05-SC)
governs
guardianship of minors.
Appointment
C. Guardianship of Incompetents
for
Opposition
Who may file: Any interested person.
How: By filing a written opposition.
SPECIAL PROCEEDINGS
Termination
Grounds:
1. The ward has come of age;
2. The ward has died.
How:
1. Court motu propio terminates
guardianship;
2. Upon verified motion of any
person allowed to file a petition
for guardianship.
The guardian shall notify the court
of the fact of coming of age or
death of the ward within 10 days
of its occurrence.
The final and executory judgment or
order removing a guardian or
terminating the guardianship
shall be served upon the Local
Civil
Registrar
of
the
municipality or city where the
minor resides and the Register of
Deeds of the province or city
where his property or any part
thereof is situated, who shall
enter the final and executory
judgment or order in the
appropriate books in their
offices.
3. The Guardian
SPECIAL PROCEEDINGS
Grounds:
1. Competency
of
the
alleged
incompetent;
2. Unsuitability of the person for whom
letters are prayed.
Procedure
1. Filing of petition for appointment of
guardian for an incompetent.
2. Court shall fix a time and place for
hearing the petition.
3. Court shall cause reasonable notice
of hearing to be given to the persons
mentioned in the petition residing in
the
province,
including
the
incompetent himself, and may direct
other general or special notice to be
given.
o If incompetent is a non-resident,
notice shall be given to him in
such manner as the court deems
proper,
by
publication
or
otherwise (Rule 93, Sec. 6).
4. Hearing
o The
incompetent
must
be
present, if able to attend.
o Fulfilment of notice requirement
must be shown.
5. Issuance of letters of appointment of
a guardian.
6. The final order or judgment shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part thereof is
situated (Rule 93, Sec. 8).
Reimbursement
of
Reasonable
Expenses
and
Payment
of
Consideration (Rule 96, Sec. 8)
The guardian, other than a parent, shall
be allowed the amount of his reasonable
SPECIAL PROCEEDINGS
4. Selling
and
Encumbering
Property of the Ward (Rule 95)
the
Grounds
a. When the income of a property
under guardianship is insufficient to
maintain the ward and his family;
b. When it is for the benefit of the ward
that his real estate or some part
thereof be sold, mortgaged or
otherwise encumbered, and the
proceeds thereof put out at an
interest, or invested in some
productive security, or in the
improvement or security of other
real estate.
How: Verified petition filed by the
guardian to the Court which appointed
him.
Order to Show Cause
The court shall order the wards next of
kin and all persons interested in the
estate to appear at a reasonable
time and place and show cause why
the petition should not be granted.
Investment
of
proceeds
and
Management of Property
The court may authorize and require
the guardian to invest the proceeds
of sales or encumbrances, and any
other money of his ward in his
hands, in real estate or otherwise,
for the best interests of the ward.
The court may make such other orders
for the management, investment,
and disposition of the estate and
effects, as circumstances may
warrant.
SPECIAL PROCEEDINGS
Embezzlement,
Concealment
or
Conveyance of Wards Properties
(Rule 96, Sec. 6)
The court may require any person
suspected of having embezzled,
concealed, or conveyed away any
money, goods or interest, or a
written instrument belonging to the
ward or his estate to appear for
examination touching such money,
goods, interest, or instrument, and
make such orders as will secure the
estate against such embezzlement,
concealment or conveyance, upon
complaint of:
a. The guardian or ward, or;
b. Any person having actual or
prospective interest
in the
property of the ward as creditor,
heir, or otherwise.
Newly-acquired
or
Discovered
Properties (Rule 96, Sec. 7)
Whenever any property of the ward not
included in an inventory already
rendered is discovered, or succeeded
to, or acquired by the ward, like
proceedings shall be had for
securing
an
inventory
and
appraisement thereof within 3
months
after
such
discovery,
succession, or acquisition
Grounds
for
Termination
of
Guardianship
a. Death of the guardian or the ward;
b. Marriage or voluntary emancipation;
o Note: Voluntary emancipation is
rendered obsolete by RA 6809,
making emancipation attainable
only by reaching the age of
majority.
c. Adjudgment of competency.
SPECIAL PROCEEDINGS
of
Petition
for
Adjudgment
Competency (Rule 97, Sec. 1)
Service of Judgment
Final orders or judgments terminating
or replacing a guardian shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part of it is
situated.
II. ADOPTION
A. DOMESTIC ADOPTION
1. SCOPE & APPLICABILITY
2. THE ADOPTER & THE ADOPTEE
3. PETITION FOR ADOPTION
4. RESCISSION OF ADOPTION OF THE
ADOPTEE
B. INTER-COUNTRY ADOPTION (RA 8043)
1. SCOPE & APPLICABILITY
2. INTER-COUNTRY ADOPTION AS THE
LAST RESORT
3. PETITION FOR ADOPTION
Adoption
A. Domestic Adoption
1. Scope and Applicability
Qualified Adopters
a. Any Filipino citizen;
Of legal age;
In possession of full civil
capacity and legal rights;
Of good moral character;
Has not been convicted of any
crime involving moral turpitude;
At least 16 years older than the
adoptee;
This requirement may be
waived when the adopter is
the biological parent of the
SPECIAL PROCEEDINGS
Qualified Adoptees
a. Any person below 18 years of age
who has been voluntarily committed
to the DSWD under Articles 154,
155 and 156 of PD No. 603 or
judicially declared available for
adoption;
b. The legitimate child of one spouse,
by the other spouse;
c. An illegitimate child, by a qualified
adopter to raise the status of the
former to that of legitimacy;
d. A person of legal age regardless of
civil status, if, prior to the adoption,
said person has been consistently
considered and treated by the
adopters as their own child since
minority;
e. A child whose adoption has been
previously rescinded;
f. A child whose biological or adoptive
parents have died, provided that no
proceedings shall be initiated within
6 months from the time of death of
said parents;.
g. A child not otherwise disqualified by
law or these rules.
Child
one who is not more than 18 years old
at the time of the filing of the
petition for adoption.
Child legally available for adoption
voluntarily or involuntarily committed
to DSWD or to a duly licensed and
accredited child-placing or childcaring agency, freed of the parental
authority of his biological parents,
or in case of rescission of adoption,
his guardian or adopter/s.
[Note (though might not be a part of
the Bar): RA 9523, signed into law
as of March 2009, amended the
Domestic
and
Inter-country
Adoption act to the effect that the
authority
to
declare
a
child
abandoned and free for adoption
has been transferred to the DSWD
Foundling
Deserted or abandoned infant or child
whose parents, guardian or relatives
are unknown.
A child committed to an orphanage or
charitable or similar institution with
unknown facts of birth and
parentage and registered in the Civil
Register as a foundling.
Abandoned child
One who has no proper parental care or
guardianship.
One whose parents have deserted him
for a period of at least 6 continuous
months and has been judicially
declared as such.
Dependent child
One who is without a parent, guardian
or custodian.
One whose parents, guardian or other
custodian for good cause desires to
be relieved of his care and custody
and is dependent upon the public
for support.
Neglected child
one whose basic needs have been
deliberately not attended to or
inadequately attended to, physically
or emotionally, by his parents or
guardian.
Physical neglect - when the child is
malnourished, ill-clad and without
proper shelter.
Emotional neglect - when a child is
raped,
seduced,
maltreated,
exploited, overworked or made to
SPECIAL PROCEEDINGS
work
under
conditions
not
conducive to good health or made to
beg in the streets or public places,
or placed in moral danger, or
exposed to drugs, alcohol, gambling,
prostitution and other vices.
Contents
Allegations common to all petitions
a. First name, surname or names,
age and residence of the
adoptee, as shown by his record
of birth, baptismal or foundling
certificate and school records;
b. That
the
adoptee
is
not
disqualified by law to be
adopted;
c. Probable value and character of
the estate of the adoptee;
d. First name, surname or names
by which the adoptee is to be
known and registered in the
Civil Registry;
e. Certification
of
non-forum
shopping.
o The petition shall be verified.
At the heading of the initiatory pleading,
whether the petition contains:
a. Application for change of name;
b. Rectification of simulated birth;
c. Voluntary
or
involuntary
commitment of children;
d. Declaration
of
child
as
abandoned,
dependent
or
neglected.
Additional allegations
a. If the adopter is a Filipino
citizen:
Jurisdictional facts;
Adopters qualifications;
That the adopter has
undergone pre-adoption
services.
b. If the adopter is an alien:
Jurisdictional facts;
Alien
adopters
qualifications;
That
the
adopter
has
undergone
pre-adoption
services.
c. If the adopter is the legal
guardian of the adoptee, that the
guardianship
had
been
terminated and the guardian
had
cleared
his
financial
accountabilities.
d. If the adoptee is a foundling:
The entries which should
appear
in
his
birth
certificate, such as name of
child, date of birth, place of
birth, if known;
Sex, name and citizenship of
adoptive mother and father,
and the date and place of
their marriage.
e. If the petition prays for a change
of name:
The cause or reason for the
change of name;
The registered name of the
child;
Aliases or other names by
which the child has been
known;
Full name by which the child
is to be known.
f. If petition seeks rectification of
simulated birth:
That petitioner is applying
for
rectification
of
a
simulated birth;
That the simulation of birth
was made prior to the date of
effectivity
of
RA
8552
(August 22, 2002) and the
application for rectification of
the birth registration and the
petition for adoption were
filed within 5 years from said
date;
That the petitioner made the
simulation of birth for the
best interests of the adoptee;
That the adoptee has been
consistently considered and
treated by petitioner as his
own child.
g. If the adoptee is a foundling, an
abandoned,
dependent
or
neglected child:
Facts showing that the child
is a foundling, abandoned,
dependent or neglected;
Names of the parents, if
known, and their residence.
If the child has no known or
living parents, then the
name and residence of the
guardian, if any;
Name of the duly licensed
child-placement agency or
SPECIAL PROCEEDINGS
Consent Requirement
Procedure
1. Filing of petition for adoption.
2. Order of Hearing by the Court
Issued
if
the
petition
and
attachments are sufficient in
form and substance
Contents:
a. Registered name of the adoptee
in the birth certificate and the
names by which the adoptee has
been known which shall be
stated in the caption;
b. Purpose of the petition;
c. Complete name which the
adoptee will use if the petition is
granted;
d. Date and place of hearing which
shall be set within 6 months
from the date of the issuance of
the order;
e. A directive for the publication of
a copy of the order before the
date of hearing at least once a
week for 3 successive weeks in a
newspaper of general circulation
in the province or city where the
court is situated;
o In case of application for
change of name, the date set
for hearing shall not be
within 4 months after the
last publication of the notice
or within 30 days prior to an
election.
o The newspaper shall be
selected by raffle under the
supervision of the Executive
Judge.
Page 193 of 370
SPECIAL PROCEEDINGS
f.
4. Hearing
Upon satisfactory proof that the
order of hearing has been
published
and
jurisdictional
requirements
have
been
complied with.
The petitioner and the adoptee must
personally appear and the
former must testify before the
court on the date set for hearing.
The court shall:
a. Verify from the social worker
and determine whether the
biological parent has been
properly counseled against
making
hasty
decisions
caused by strain or anxiety
to give up the child;
b. Ensure that all measures to
strengthen the family have
been exhausted;
c. Ascertain if any prolonged
stay of the child in his own
home will be inimical to his
welfare and interest.
5. Supervised trial custody
Trial custody given the adopter
before issuance of the decree of
adoption for a period of at least
6 months within which the
parties are expected to adjust
psychologically and emotionally
to each other and establish a
bonding relationship.
Monitored by the social worker of
the court, the DSWD, or the
social service of the local
government unit, or the childplacement or child-caring agency
which submitted and prepared
the case studies.
Temporary parental authority is
vested in the adopter.
o The court may, motu proprio
or upon motion of any party,
reduce the period or exempt
the parties if it finds that the
same shall be for the best
interests of the adoptee.
o General Rule: An alien
adopter must complete the
6-month trial custody.
SPECIAL PROCEEDINGS
Exceptions:
a. A former Filipino citizen
who seeks to adopt a
relative within the 4th
degree of consanguinity
or affinity;
b. One who seeks to adopt
the legitimate child of his
Filipino spouse;
c. One who is married to a
Filipino citizen and seeks
to adopt jointly with his
or her spouse the latters
relative within the 4th
degree of consanguinity
or affinity.
If the child is below 7 years of age
and
is
placed
with
the
prospective adopter through a
pre-adoption
placement
authority issued by the DSWD,
the court shall order that the
prospective adopter shall enjoy
all the benefits to which the
biological parent is entitled from
the date the adoptee is placed
with him.
The social worker shall submit to
the court a report on the result
of the trial custody within 2
weeks after its termination.
Book of Adoptions
The Clerk of Court shall keep a book of
adoptions showing the date of
issuance of the decree in each case,
compliance by the Civil Registrar
with the courts order, and all
incidents arising after the issuance
of the decree.
Confidentiality
of
Adoption
Proceedings
All hearings in adoption cases, after
compliance with the jurisdictional
SPECIAL PROCEEDINGS
of
Adoption
of
the
When to file:
1. Within 5 years after reaching age of
majority;
2. If he was incompetent at the time of
the adoption, within 5 years after
recovery from such incompetency.
Procedure:
1. Filing of petition to rescind the
adoption.
2. Court shall issue an order requiring
the adverse party to answer the
petition within 15 days from receipt
of a copy thereof.
3. The order and copy of the petition
shall be served on the adverse party
in such manner as the court may
direct.
SPECIAL PROCEEDINGS
4. Rescission
Adoptee
4. Judgment.
o If the court finds that the
allegations of the petition are
true, it shall render judgment
ordering
the
rescission
of
adoption, with or without costs,
as justice requires.
o The court shall:
a. Order that the parental
authority of the biological
parent of the adoptee, if
known, or the legal custody
of DSWD be restored if the
adoptee is still a minor or
incapacitated and declare
that the reciprocal rights and
obligations of the adopter
and the adoptee to each
other be extinguished;
b. Declare that successional
rights revert to its status
prior to adoption, as of the
date of judgment of judicial
rescission.
Vested
rights
acquired prior to judicial
rescission shall be respected;
c. Order the adoptee to use the
name stated in his original
birth or foundling certificate;
d. Order the Civil Registrar
where the adoption decree
was registered to cancel the
new birth certificate of the
adoptee and reinstate his
original birth or foundling
certificate.
5. Service of judgment
o A certified true copy of the
judgment
together
with
a
certificate of finality issued by
the Branch Clerk of the Court
which rendered the decision
shall be served by the petitioner
upon
the
Civil
Registrar
concerned within 30 days from
receipt of the certificate of
finality.
o The
Civil
Registrar
shall
forthwith enter the rescission
decree in the register and
submit proof of compliance to
the court issuing the decree and
the Clerk of Court within 30
days from receipt of the decree.
Where to file:
a. Family Court having jurisdiction
over the place where the child
resides or may be found;
b. Directly with the ICAB;
c. To
the
ICAB,
through
an
intermediate
agency,
whether
governmental or an accredited
agency, in the country of the
prospective adopters.
Contents of petition
a. The adopters age and the age of the
child to be adopted, showing that he
is at least 27 years of age and at
least 16 years older than the child to
be adopted at
the time of
application, unless the petitioner is
the parent by nature of the child to
be adopted or the spouse of such
parent;
b. If married, the name of the spouse
who must be joined as co-petitioner
except when the adoptee is a
legitimate child of his spouse;
c. That he has the capacity to act and
assume
all
rights
and
responsibilities of parental authority
SPECIAL PROCEEDINGS
d.
e.
f.
h.
i.
III.
RULES
ON
CUSTODY
OF
CHILDREN (RULE 99, SECS. 6
AND 7)
A.
SPECIAL PROCEEDINGS
g.
Applicability
Applies to petitions for custody of
minors and writs of habeas corpus
in relation thereto.
Rules of Court shall apply suppletorily.
Contents:
a. The personal circumstances of the
petitioner and of the respondent;
b. The
name,
age
and
present
whereabouts of the minor and his or
her relationship to the petitioner
and the respondent;
c. The
material
operative
facts
constituting deprivation of custody;
d. Such other matters which are
relevant to the custody of the minor
Verified and accompanied with a
certificate against forum shopping
signed by the petitioner personally.
If court is satisfied that the petition is
sufficient in form and substance, it
shall direct the clerk of court to
issue summons, which shall be
served together with a copy of the
petition
personally
on
the
respondent.
B. Proceedings as to Vagrant or
Abused Child (RULE 99, SEC. 7)
SPECIAL PROCEEDINGS
Interim Reliefs
1. Temporary visitation rights court shall provide in its order
awarding
provisional
custody
appropriate visitation rights to the
non-custodial parent or parents.
Unless the court finds said parent
or parents unfit or disqualified.
The temporary custodian shall give
the court and non custodial
parent or parents at least 5 days'
notice of any plan to change the
residence of the minor or take
him out of his residence for more
than 3 days
2. Hold Departure Order the minor
child shall not be brought out of the
country without prior order from the
court while the petition is pending.
Court, motu proprio or upon
application under oath, may
issue ex parte a hold departure
order, addressed to the Bureau
of Immigration and Deportation
(BID), directing it not to allow
the departure of the minor from
the Philippines without court
permission.
The Family Court issuing the hold
departure order shall furnish the
DFA and the BID of the DOJ a
copy of the hold departure order
within 24 hours from its
issuance.
The court may recall the hold
departure order motu proprio or
upon verified motion of any of
the parties after summary
hearing.
Page 200 of 370
SPECIAL PROCEEDINGS
Mandatory pre-trial
Notice - 15 days after the filing of the
answer or the expiration of the
period to file answer, the court shall
issue an order:
a. Fixing a date for the pre-trial
conference;
b. Directing the parties to file and
serve their respective pre-trial
briefs;
c. Requiring the respondent to
present the minor before the
court.
o The notice of its order shall be
served separately on both the
parties and their respective
counsels.
Pre-trial brief contains the following:
a. A statement of the willingness of
the parties to enter indicating its
terms;
b. A concise statement of their
respective claims;
c. Admitted facts and proposed
stipulations of facts;
d. The disputed factual and legal
issues;
e. All the evidence to be presented;
f. The number and names of the
witnesses and their respective
affidavits;
g. Such other matters as the court
may require to be included.
o Failure to file the pre-trial brief
or to comply with its required
contents has same effect as
failure to appear at the pre-trial.
o If the petitioner fails to appear
personally at the pre-trial, the
case shall be dismissed.
o Unless his counsel or a duly
authorized
representative
appears in court and proves a
valid excuse for the nonappearance of the petitioner.
If the respondent has filed his answer
but fails to appear at the pre-trial,
the petitioner shall be allowed to
present his evidence ex parte.
o Court
shall
then
render
judgment on the basis of the
pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree
on the custody of the minor.
o If the parties fail to agree, the
court may refer the matter to a
mediator who shall have 5 days
to effect an agreement between
the parties.
Judgment
Court shall render judgment awarding
the custody of the minor to the
proper party considering the best
interests of the minor.
If both parties are unfit to have the care
and custody of the minor, the court
may designate either the paternal or
maternal grandparent of the minor,
or his oldest brother or sister, or
any reputable person to take charge
of such minor, or commit him to any
suitable home.
Court may order either or both parents
to give an amount necessary for the
support,
maintenance
and
education of the minor, irrespective
of custodianship.
Appeal
Appeal from the decision shall be
allowed.
o Unless the appellant has filed a
motion for reconsideration or
new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal
within 15 days from notice of the
denial
of
the
motion
for
reconsideration or new trial and
serving a copy on the adverse
parties.
Petition for Writ of Habeas Corpus
A verified petition for a writ of habeas
corpus involving custody of minors filed
with the Family Court.
The writ shall be enforceable within
the judicial region the Family Court
belongs.
However, the petition may be filed with
a regular court in the absence of the
presiding judge of the Family Court
provided that the regular court shall
refer the case to the Family Court as
soon as its presiding judge returns to
duty.
Petition may also be filed with the
appropriate regular courts in places
where there are no Family Courts.
The petition may be filed with the SC,
CA, or with any of its members and
shall be enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to any
regular court within the region where
the petitioner resides or where the
minor may be found for hearing and
decision on the merits.
Upon return of the writ, the court shall
decide the issue on custody of minors.
SPECIAL PROCEEDINGS
Rights involved
Situations applicable
Party authorized to file
SPECIAL PROCEEDINGS
Respondents
Before which court or
judicial authority filed
Right to liberty
a minor
V. COMMITMENT
OF
(A.M. NO. 02-1-19-SC)
CHILDREN
A. INVOLUNTARY
COMMITMENT
OF
A
DEPENDENT,
ABANDONED,
OR
NEGLECTED CHILD
B. VOLUNTARY
COMMITMENT
OF
A
DEPENDENT,
ABANDONED,
OR
NEGLECTED CHILD
C. COMMITMENT OF A DISABLED CHILD
A. Involuntary Commitment of a
Dependent,
Abandoned,
or
Neglected Child
1.
2.
1.
2.
SPECIAL PROCEEDINGS
Summons
If the court is satisfied that the petition
is sufficient in form and substance,
it shall direct the clerk of court to
immediately issue summons which
shall be served together with a copy
of the petition and a notice of
hearing, not less than 5 days before
the date of the hearing, upon:
1. The parents or guardian of the
child;
2. Office of the public prosecutor.
The
office
of
the
public
prosecutor shall be directed to
immediately
transmit
the
summons to the prosecutor
assigned to the Family Court
concerned.
If it appears from the petition that both
parents of the child are dead or that
neither parent can be found in the
province or city where the court is
located and the child has no guardian
residing therein, summons may not be
issued and the court shall thereupon
appoint a guardian ad litem and
proceed with the hearing of the case
with due notice to the provincial or city
prosecutor.
Hearing
The provincial or city prosecutor shall:
o Appear for the State;
o Ascertain if there has been due
notice to all parties concerned
and that there is justification for
the declaration of dependency,
abandonment or neglect.
The court shall:
o Direct the person or agency
which has custody of the child to
bring the latter to the court on
the date of the hearing of the
petition;
o Ascertain
the
facts
and
determine whether the child is
dependent,
abandoned,
or
neglected, and if so, the-cause
and circumstances of such
condition.
Judgment.
If, after the hearing, the court shall find
the
child
to
be
dependent,
abandoned, or neglected, it shall
render judgment committing him to
the care and custody of DSWD or
any duly licensed child-placement or
child-caring agency or individual
until he reaches the age of 18.
If the child is committed to DSWD, it
shall notify the court within 30 days
from the order of commitment, the
name and address of the duly
licensed and accredited childplacement or child-caring agency or
individual where the child shall be
placed.
The judgment shall likewise make
proper provisions for the custody of
Visitation or Inspection
Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed by
the court shall be subject to visitation
or inspection by a representative of the
court or of the DSWD, as the case may
be or of both, to determine whether the
welfare and interests of the child are
being served.
Report of Person or Institution.
Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
by judicial order may at any time be
required by the court to submit a
report, containing all necessary
information for determining whether
the welfare of the child is being
served.
Temporary Custody of Child.
The duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
may file a verified motion with the
court which granted the petition for
involuntary commitment of a child
to place him in the care of any
suitable person, upon the latter's
request, for a period not exceeding 1
month at a time.
The court may order the social worker
to submit a case study report to aid
it in evaluating whether such
temporary custody shall be for the
best interests of the child.
The period of temporary custody of the
child may be extended by the court
for a period not exceeding 1 month
at a time upon motion of the duly
licensed child-placement or childcaring agency or individual to which
the child has been committed.
The court, mote propriety, or upon
request of the child assisted by his
guardian ad litem, or at the instance
of the agency or person to whom the
child was committed, after due
notice
and
hearing,
shall
SPECIAL PROCEEDINGS
Removal of Custody
A motion to remove custody of a child
may be filed by an authorized
representative of the DSWD with
knowledge of the facts against a
child-placement
or
child-caring
agency or individual to whose
custody a child has been committed
by the court on the ground of
neglect of such child.
Neglect
Physical neglect occurs when the child
is
malnourished,
ill-clad
and
without proper shelter.
Emotional neglect occurs when a child
is raped, seduced, mal-treated,
exploited, overworked or made to
work
under
conditions
not
conducive to good health; made to
beg in the streets or public places,
or when placed in moral danger, or
exposed to drugs, alcohol, gambling,
prostitution and other vices.
The court shall set the motion for
hearing with notice to the public
prosecutor and the court-designated
social worker.
Notice of Hearing.
The court shall:
o Fix the time and date for the hearing
of the motion, which shall not be
earlier than 30 days nor later than
60 days from the date of the filing of
said motion;
o Cause notice of the hearing to be
sent at least 5 days before the date
of hearing to:
1. The person, agency or institution
to which the child has been
committed;
2. The public prosecutor;
3.
The
court-designated
social
worker.
Hearing
Any person may be allowed to intervene
at the discretion of the court to
contest the right to the relief
demanded.
Witnesses may be called and examined
by the parties or by the court motu
proprio.
SPECIAL PROCEEDINGS
Change of Custody
If the child is committed to the DSWD,
it shall have the authority to change
the custody of a child it had placed
with any duly licensed childplacement or child-caring agency or
individual if it appears that such
change is for the best interests of
the child.
The DSWD shall notify the court of any
change in custody of the child.
When conflicting interests arise among
child-placement
or
child-caring
agencies, the court which granted
the involuntary commitment of the
child, upon motion of the DSWD or
any of the agencies concerned, shall
order the change of commitment of
the child.
Resolution
If it is found that the cause for the
commitment of the child no longer
exists and that the movant is
already able to take proper care and
custody of the child.
Effects:
Terminates the parental authority of the
person, agency or institution to
whom the child was committed by
judicial order;
Restores parental authority to the
movant.
Notice of Hearing
If the petition is sufficient in form and
substance, the court shall set the same
for hearing with notice to:
1. DSWD;
2. The public prosecutor;
3. The court-designated social worker;
4. The agency or individual to whom
the child has been committed;
5. In appropriate cases, the parents of
the
child.
Judgment
If after hearing the court finds that the
allegations of the petition have been
established and that it is for the best
interests and welfare of the child, it
shall issue an order:
Removing the child from the custody of
the person or agency concerned;
Committing him to the custody of
another
duly
licensed
childplacement or child-caring agency or
individual;
If proper, suspending or revoking the
license of the agency or individual
found guilty of such neglect
depending upon the gravity or
frequency
of
the
offense.
SPECIAL PROCEEDINGS
B. Voluntary Commitment of a
Dependent,
Abandoned,
or
Neglected Child
Venue:
Family Court of the place where:
1. The parent or guardian resides, or;
2. The child is found.
Contents of Verified Petition
1. The facts showing that the child
appears to be mentally retarded,
physically handicapped, emotionally
disturbed, mentally ill, with cerebral
palsy or with similar afflictions and
needs institutional care;
2. The name of the parents and their
residence, if known, or if the child has
no living parent, the name and
residence of the guardian;
3. The fact that the parents or guardian or
any duly licensed disabled childplacement or child-caring agency has
opposed the commitment of such child;
4. The name and written conformity of the
institution where the child is to be
committed;
5. An estimate of the costs and other
expenses of maintaining the child in the
institution.
The verified petition shall be sufficient if
based upon the personal knowledge
of the petitioner.
Order of Hearing
If the petition filed is sufficient in form
and substance, the court, by an order
reciting the purpose of the petition,
shall fix the date of the hearing
A copy of such order shall be served on:
1. The child alleged to be mentally
retarded, physically handicapped,
emotionally disturbed, mentally ill,
with cerebral palsy or with similar
afflictions;
2. The person having charge of him or
any of his relatives residing in the
province or city as the court may
deem proper.
The order shall also direct the sheriff or
any other officer of the court to produce,
if necessary, the alleged disabled child
on the date of the hearing.
SPECIAL PROCEEDINGS
Disabled child
includes mentally retarded, physically
handicapped, emotionally disturbed and
mentally ill children, children with
cerebral palsy and those with similar
afflictions.
SPECIAL PROCEEDINGS
II.
III.
V.
Procedure
1. Filing of petition.
2. If the petition is sufficient in form and
substance, the court, by an order
reciting the purpose of the petition,
shall fix a date for the hearing.
3. A copy of such order shall be served on
the person alleged to be insane, and to
the one having charge of him, or on
such of his relatives residing in the
province or city as the judge may deem
proper.
4. The court shall order the sheriff to
produce the alleged insane person, if
possible, on the date of the hearing.
5. Hearing.
The provincial or city fiscal shall
prepare the petition for the Director
of Health and represent him in court
in the proceedings.
The burden of proving insanity is on the
person who alleges it (Director of
Health).
6. Order of commitment. The court shall
make proper provisions for the custody
of property or money belonging to the
insane until a guardian be properly
appointed.
I. HOSPITALIZATION OF INSANE
PERSONS (Rule 101)
Insanity Condition of the mind where it is
so impaired in function or so deranged as
to induce deviation from normal conduct in
the person so afflicted.
SPECIAL PROCEEDINGS
IV.
A. Absence
Contents of Petitions
1. Jurisdictional facts;
2. Names, ages, and residences of the
heirs instituted in the will, copy of
which shall be presented, and of the
relatives who would succeed by the
law of intestacy;
3. Names and residences of creditors
and others who may have any
adverse interest over the property of
the absentee;
4. Probable
value,
location
and
character of the property belonging
to the absentee.
Opposition
Anyone appearing
petition shall:
to
contest
Procedure
1. Filing of petition for appointment of
representative
or
petition
for
declaration of absence.
2. Court shall fix a date and place for
the hearing of the petition where all
concerned may appear to contest
the petition.
3. Copies of the notice of the time and
place fixed for the hearing shall be:
a. Served upon the known heirs,
legatees, devisees, creditors and
other interested persons, at least
10 days before the day of the
hearing;
b. Published once a week for 3
consecutive weeks prior to the
time designated for the hearing,
in a newspaper of general
circulation in the province or
city where the absentee resides,
as the court shall deem best.
4. Hearing.
Compliance with the notice and
publication requirements must
be shown.
5. Issuance of order granting or
denying the petition.
The judge shall :
Take
the
necessary
measures to safeguard the
rights and interests of the
absentee;
Specify
the
powers,
obligations
and
remuneration
of
his
representative, trustee or
administrator,
regulating
them by the rules concerning
guardians.
6. In case of declaration of absence,
the same shall not take effect until 6
months after its publication in a
newspaper of general circulation
designated by the court and in the
Official Gazette.
the
SPECIAL PROCEEDINGS
Who
may
be
appointed
Representative, Administrator, or
Trustee
1. The spouse present, who shall be
preferred when there is no legal
separation;
2. Any competent person:
a. If the absentee left no spouse;
b. If the spouse present is a minor
or otherwise incompetent.
III.CHANGE
OF
NAME
AND
CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
(Asked in the
Examinations)
Periods
For all purposes, except for succession
7 years.
For the purpose of opening of
succession 10 years.
o If disappeared after the age of 75
years 5 years.
Cases where there is danger of death,
for
all
purposes,
including
succession:
o A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing - 4
years since the loss of the vessel
or aeroplane.
o A person in the armed forces
who has taken part in war - 4
years.
o A person who has been in
danger of death under other
circumstances - 4 years.
For the purpose of remarriage 4 years.
In cases where there is danger of death
2 years.
Petition
for
Declaration
of
Presumptive Death
No independent action is necessary for
the declaration of presumption of
death, except for purposes of
remarriage, where the present
spouse must first file a summary
proceeding for the declaration of
presumptive death of the absent
spouse before contracting a second
marriage (Art. 41, FC).
and
2007
Bar
Applicable Rules
Substantial changes in name: Rule 103
Substantial changes in entries in the
civil registry (other than name): Rule
108
Non-substantial changes in entries in
the civil registry (i.e., changes in
first name or nickname and
correction
of
clerical
or
typographical errors) : RA 9048
B. Presumption of Death
2005
Contents of Petition
1. That the petitioner has been a bona
fide resident of the province where
the petition is filed for at least 3
years prior to the date of such filing;
2. The cause for which the change of
the petitioner's name is sought;
3. The name asked for;
4. All names by which the petitioner is
known (Secan Kok vs. Republic
(1973); Go Chiu Beng vs. Republic
(1972)).
The petition shall be signed and
verified.
SPECIAL PROCEEDINGS
Termination of Administration
1. When
the
absentee
appears
personally or by means of an agent;
2. When the death of the absentee is
proved and his testate or intestate
heirs appear;
3. When a third person appears,
showing by a proper document that
he has acquired the absentee's
property by purchase or other title.
Opposition
Who may file: Any interested person.
Procedure
1. Filing of petition for change of name.
2. Court shall promulgate an order
fixing a date and place for hearing
the petition. The date set for the
hearing shall not be:
Within 30 days prior to an
election, and;
Within 4 months after the last
publication of the notice.
3. Court shall direct a copy of the
order to be published before the
hearing at least once a week for 3
successive
weeks
in
some
newspaper of general circulation
published in the province.
4. Hearing.
o The Solicitor General or the
proper provincial or city fiscal
shall appear on behalf of the
Government of the Republic.
5. Judgment granting or denying the
change of name.
6. Copy
of
judgments
shall
be
furnished the civil registrar of the
municipality or city where the court
issuing the same is situated, who
shall forthwith enter the same in the
civil register.
Publication requirement
A change in name is a proceeding in
rem. As such, strict compliance with
all
jurisdictional
requirements,
particularly on publication, is
essential in order to vest the court
with jurisdiction (Regalado).
B. Change
of
First
Name
or
Nickname and Correction of
Clerical Or Typographical Errors
In Entries In The Civil Registry
(RA 9048)
1. Scope and Application
Scope
RA 9048
Administrative:
Petition is filed
before the local
civil registrar or,
for non-resident
citizens, the
consul general
Correction of
clerical or
typographical
errors and
changes in first
name or
nickname
RULE 103
Judicial
Substantial
changes in
name,
including
surname
SPECIAL PROCEEDINGS
3. The Petition
Who may file: A natural person having
direct and personal interest in the
correction of a clerical or typographical
error in an entry or change of first name
or nickname in the civil register.
Where to file:
General Rule: The local civil registry
office of the city or municipality
where the record being sought to be
corrected or changed is kept.
If the petitioner has already migrated to
another place in the country and it
would not be practical for him, in
terms of transportation expenses,
time and effort, to appear in person
before the local civil registrar
keeping the documents to be
corrected or changed: The local civil
registrar of the place where the
interested party is presently residing
or domiciled.
o The two local civil registrars
concerned will communicate to
facilitate the processing of the
petition.
If the petitioner is a Filipino citizen
presently residing or domiciled in
foreign countries: The nearest
Philippine Consulate.
Grounds
1. Petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has
been habitually and continuously
used by the petitioner and he has
been publicly known by the first
name
or
nickname
in
the
community;
3. The change will avoid confusion.
Number of changes of name
allowed
Petition for change of name
correction
of
clerical
of
error
can
only
be
Form of petition
1. In the form of an affidavit;
2. Verified, and;
3. Subscribed and sworn to before any
person authorized by law to
administer oaths.
or
or
SPECIAL PROCEEDINGS
typographical
availed once.
Contents of petition
1. Facts necessary to establish the
merits of the petition;
2. A showing that the petitioner is
competent to testify to the matters
stated;
3. Particular erroneous entry or entries
which are sought to be corrected
and/or the change sought to be
made.
Supporting documents
In correction of clerical or typographical
errors:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other
documents
which
the
petitioner or the city or municipal
civil registrar, or the consul general
may
consider
relevant
and
necessary for the approval of the
petition.
In changes of first name or nickname:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other
documents
which
the
petitioner or the city or municipal
civil registrar, or the consul general
may
consider
relevant
and
necessary for the approval of the
petition;
4. Certification from the appropriate
law enforcement agencies that the
petitioner has no pending case or no
criminal record.
Procedure
1. Filing of petition. The petition and
its supporting papers shall be filed
in 3 copies to be distributed to:
a.
The concerned city or municipal
civil registrar or the consul
general;
b.
The Office of the Civil Registrar
General;
c.
The petitioner;
2. The City or Municipal Registrar or
the Consul General shall post the
petition in a conspicuous place for
ten 10 consecutive days after he
finds the petition and its supporting
documents sufficient in form and
substance.
3. In case of change of first name or
nickname, the petition shall be
published at least once a week for 2
consecutive weeks in a newspaper of
general circulation.
4. The City or Municipal Registrar or
the Consul General shall render a
decision not later than 5 working
days after the completion of the
posting
and/or
publication
requirement. He shall transmit a
copy of his decision together with
the records of the proceedings to the
Office of the Civil Registrar General
within 5 working days from the date
of the decision.
Where the petition is denied by
the city or municipal civil
registrar or the consul general,
the petitioner may either appeal
the decision to the civil registrar
general or file the appropriate
petition with the proper court.
5. The Civil Registrar General shall,
within 10 working days from receipt
of the decision granting a petition,
exercise the power to impugn such
decision by way of an objection.
SPECIAL PROCEEDINGS
Correction of
Civil Registry
Nature of
Proceeding
Scope
Scope
Nature of
Proceeding
Scope
Who may
File
Where and
How Filed
Standing of
Local Civil
Register
Notice
requirement
Rule 108
Judicial
Substantial
changes in
entries in
the civil
registry,
other than
name
RA 9048
Administrative:
Petition is filed
with the local
civil registrar
or, for nonresident
citizens, the
consul general
Correction of
clerical or
typographical
errors and
changes in first
name or
nickname
Rule 108
Judicial
RULE 103
Judicial
Substantial
changes in
entries in the
civil registry,
other than
name
Any person
interested in
any act,
event, order,
or decree
concerning
the civil
status of
persons.
Verified
petition filed
in the RTC
where the
corresponding
civil registry is
located
Civil register
concerned is
made party to
the
proceeding as
a respondent.
The court
shall cause
reasonable
notice to be
given to
persons
named in the
petition.
Substantial
changes in
name,
including
surname
Person
desiring to
change his
name or
some other
person on
his behalf
Petition
filed in the
RTC where
the
petitioner
resides
Civil
register is
not a party
to the
proceeding.
No mention
of cause of
notice to be
sent.
SPECIAL PROCEEDINGS
C. Cancellation or
Entries in the
(RULE 108)
IV.
VOLUNTARY DISSOLUTION OF
CORPORATIONS (please refer
to the COMMERCIAL LAW
REVIEWER, p.116)
V.
NATURALIZATION
Naturalization process that confers
to an alien a nationality after birth by
any of the means provided by law.
Qualifications
1. The petitioner must not be less than
21 years of age on the date of
hearing the petition;
2. He must have resided in the
Philippines for a continuous period
of not less than 10 years;
Period may be reduced to 5 years if
the applicant:
a. Honorably held office under
the Government of the
Philippines or under any of
its
provinces,
cities,
municipalities, or political
subdivisions;
b. Established a new industry
or
introduced a useful
invention in the Philippines;
c. Is married to a Filipino
woman;
d. Had been engaged as a
teacher in a public or
recognized private school not
established for the exclusive
instruction of children of
persons of a particular
nationality or race in any of
the branches of education or
industry for a period of 2
years;
e. Was born in the Philippines.
3. He must be of good moral character,
and believe in the principles
underlying
the
Philippine
Constitution,
and
must
have
conducted himself in a proper and
irreproachable manner during the
entire period of his residence in the
Philippines in his relations with the
constituted government as well as
the community in which he is living;
How:
Verified petition.
Where to file:
RTC
of
the
province
where
corresponding civil registry is located.
the
Opposition
Who may file:
1. The civil registrar;
2. Any person having or claiming any
interest under the entry whose
cancellation or correction is sought
When filed: within 15 days from notice
of the petition or from the last date of
publication of the notice.
Procedure
1. Filing of the petition.
2. The court shall, by an order, fix the time
and place for the hearing of the petition.
3. The court shall cause reasonable notice
of the hearing to be given to the persons
named in the petition.
4. The court shall cause the order to be
published once a week for 3 consecutive
weeks in a newspaper of general
circulation in the province.
5. Hearing.
The court may make orders
expediting the proceedings.
The court may grant preliminary
injunction for the preservation of the
rights of the parties pending such
proceedings.
6. Judgment.
A certified copy of the judgment
shall be served upon the civil
registrar concerned
who shall
annotate the same in his record.
SPECIAL PROCEEDINGS
Disqualifications
1. Persons
opposed
to
organized
government or affiliated with any
association or group of persons who
uphold
and
teach
doctrines
opposing all organized governments;
2. Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination
for the success and predominance of
their ideas;
3. Polygamists or believers in the
practice of polygamy;
4. Persons
convicted
of
crimes
involving moral turpitude;
5. Persons suffering from mental
alienation or incurable contagious
diseases;
6. Persons who, during the period of
their residence in the Philippines,
have not mingled socially with the
Procedure
1. Filing of declaration of intention to
become a citizen;
When: 1 year before petition is filed.
Where: Office of the Solicitor
General.
How: Declaration under oath.
Exemptions:
a. Persons
born
in
the
Philippines and who have
received their primary and
secondary
education
in
public or private schools
recognized
by
the
Government, and not limited
to any race or nationality;
b. Those who have resided
continuously
in
the
Philippines for a period of
thirty years or more before
filing their application;
c. The
widow
and
minor
children of an alien who
declared his intention to
become a citizen of the
Philippines and dies before
he is actually naturalized.
2. Filing of petition for naturalization;
Where: RTC of the province in
which the petitioner has resided
at least one year immediately
preceding the filing of the
petition
How: Petition in triplicate, signed
by the applicant in his own
handwriting
SPECIAL PROCEEDINGS
3. Publication
at
the
petitioners
expense once a week for three
consecutive weeks in the Official
Gazette or newspaper of general
publication in the province where
the petitioner resides of the petition;
4. Posting of copies of the petition and
a general notice of the hearing in a
public and conspicuous place;
5. Forwarding of copies of the petition,
the sentence, the naturalization
certificate, and other pertinent data
to the DILG, DOJ, the Provincial
Inspector
of
the
Philippine
Constabulary of the province and
the MTC judge of the municipality
wherein the petitioner resides;
6. Hearing of petition;
No petition shall be heard within the
thirty
days
preceding
any
election until after six months
from the publication of the
application.
The hearing shall be public. The
Solicitor-General shall appear on
behalf of the Republic.
7. Approval or denial of petition and
issuance of the Certificate of
Naturalization;
8. Rehearing of petition 2 years after
the promulgation of the judgment ;
The decision shall not become
executory until the court finds
that during the intervening time
the applicant has:
a. Not left the Philippines;
b. Dedicated
himself
continuously to a lawful
calling or profession;
c. Not been convicted of any
offense
or
violation
of
Government
promulgated
rules;
d. Not committed any act
prejudicial to the interest of
the nation or contrary to any
Government
announced
policies.
9. Taking of the oath of allegiance to
support and defend the Constitution
and the laws of the Philippines.
Appeal
Final decision appealable to SC, at the
instance of either of the parties.
SPECIAL PROCEEDINGS
Contents:
a. Petitioners
name
and
surname;
b. His present and former
places of residence;
c. His occupation;
d. Place and date of his birth;
e. His civil status;
f. Names, ages, birthplaces and
residence of his wife and
children;
g. Approximate date of his
arrival in the Philippines, the
name
of
the
port
of
debarkation, and, the name
of the ship on which he
came;
h. Declaration that he has the
qualifications and none of
the
disqualifications
for
naturalization;
i. Declaration of compliance
with the declaration of
intention requirement;
j. Declaration that he will
reside continuously in the
Philippines from the date of
the filing of the petition up to
the time of his admission to
Philippine citizenship;
k. Affidavit of at least two
credible persons, stating that
they are citizens of the
Philippines and personally
know the petitioner to be a
resident of the Philippines
for the required period of
time and a person of good
repute
and
morally
irreproachable, and that said
petitioner
has
in
their
opinion all the qualifications
necessary and is not in any
way disqualified to become a
citizen of the Philippines;
l. Names
and
post-office
addresses of witnesses the
petitioner may desire to
introduce at the hearing of
the case;
m. Certificate of arrival and the
declaration of intention;
n. 2
photographs
of
the
petitioner.
Advance Distributions
Notwithstanding
a
pending
controversy/appeal
in
estate
settlement proceedings, the court
may permit that the estates parts
which are not affected by the
controversy/appeal be distributed,
upon compliance with Rule 90
SPECIAL PROCEEDINGS
Vital purposes:
To obtain relief from illegal confinement
To liberate those who may be
imprisoned without sufficient cause
To deliver them from unlawful custody
Essentially a writ of inquiry, granted to
test the right under which a person is
detained, and to relieve a person if such
restrain is illegal
Can only be suspended in cases if in
cases or rebellion or invasion and when
SPECIAL PROCEEDINGS
Requisites:
1. Petitioner has the right to the
custody of the minor
2. The rightful custody of the minor is
being withheld by the respondent
3. That it is the best interest of the
minor concerned to be in the
custody of petitioner and not that of
respondent
While a writ of right, WHC it will not
issue as a matter of course or as a mere
perfunctory operation on the filing of
the petition
Judicial discretion is exercised, and
whether or not the petition is
sufficient in form and substance,
writ should issue if the petition
complies with the legal requirements
and its averments make a prima
facie case for relief
WHC may be used with writ of certiorari
for purposes of review
The two writs may be ancillary to each
other where necessary to give effect
to the supervisory powers of higher
courts
WHC reaches the body of the
jurisdictional matters, but not the
record. Writ of certiorari reaches
the record but not the body
While generally, the WHC will not be
granted when there is and adequate
remedy like writ of error, appeal, or
certiorari, it may still be available in
exceptional cases
SPECIAL PROCEEDINGS
rendition
of
an
order
awarding
temporary custody of a child in habeas
corpus proceedings. Such continues in
force until a court with jurisdiction over
the guardianship appoints a guardian of
his person
C. Requisites of Application
Sec. 3 Application for the writ shall be by
petition signed and verified by the party for
whose relief it is intended, or by some person on
his behalf, and shall set forth:
(a) That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom
he is so imprisoned or retrained; or if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear.
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS
General Rule:
WHC will not issue
where the person alleged to be
restrained of his liberty is in custody of
an officer under a process issued by the
court which has jurisdiction to do so
Even if the arrest of a person is illegal,
supervening events may bar his
release or discharge form custody
The legality of the detention is inquired
into at the earliest, the application
for a WHC
Among the supervening events is the
issuance of a judicial process
(defined
as
a
writ,
warrant,
subpoena, or other formal writing
issued by authority of law)
Another supervening event is the filing
before a trial court a complaint
which issued a hold departure order
and denied motion to dismiss and to
grant bail (Velasco v. CA,1995)
Filing of an information for the offense
for which the accused is detained
bars the availability of WHC
Improper arrest or lack of preliminary
investigation is not a valid ground for
the issuance of WHC
Proper remedy is a motion to quash
warrant
of
arrest
and/or
information before the trial court
Posting of a bail is not a waiver of the
right to challenge the validity of the
arrest, and therefore the right to resort
to WHC (Revised Rules of Crim Pro Sec.
26)
A person discharged on bail is not
entitled to WHC, because such person
is not imprisoned or restrained of his
liberty in such a way as to entitle him to
the WHC
Sec. 12. Hearing on return. Adjournments. When the writ is returned before one judge, at a
time when the court is in session, he may
forthwith adjourn the case into the court, there
to be heard and determined. The court or judge
before whom the writ is returned or adjourned
must immediately proceed to hear and examine
the return, and such other matters as are
properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in
which event the court or judge shall make such
order for the safekeeping of the person
imprisoned or restrained as the nature of the
case requires. If the person imprisoned or
restrained is not produced because of his alleged
sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person
cannot be produced without danger, before
proceeding to hear and dispose of the matter. On
the hearing the court or judge shall disregard
matters of form and technicalities in respect to
any warrant or order of commitment of a court
or officer authorized to commit by law.
SPECIAL PROCEEDINGS
I. Penalties
Sec. 16. A clerk of a court who refuses to issue
the writ after allowance thereof and demand
therefor, or a person to whom a writ is directed,
who neglects or refuses to obey or make return
of the same according to the command thereof,
or makes false return thereof, or who, upon
demand made by or on behalf of the prisoner,
refuses to deliver to the person demanding,
within six (6) hours after the demand therefor, a
true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recorded
in a proper action, and may also be punished by
the court or judge as for contempt.
Sec. 17. Person discharged not to be again
imprisoned. - A person who is set at liberty
upon a writ of habeas corpus shall not be again
imprisoned for the same offense unless by the
lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of this
rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense,
or pretended offense, any person so set at
liberty, or knowingly aids or assists therein,
shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper
action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and
may also be punished by the court or judge
granting the writ as for contempt.
SPECIAL PROCEEDINGS
B. Aspects of Filing
Sec. 2 Who may File. The petition may be filed
by the aggrieved party or by any qualified person
or entity in the following order:
(a) Any member of the immediate family
namely: the spouse, children and parents of
the aggrieved party;
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any
concerned
citizen,
organization,
association or institution if there is no
known member of the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein.
SPECIAL PROCEEDINGS
D. Aspects of Return
Sec. 9 Return; Contents. Within seventy-two
(72) hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain the following:
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
(b) The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission;
(c) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party; and
(d) If the respondent is a public official or
employee the return shall further state the
actions that have been or will still be
taken[...].
The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed.
Section 10
Defenses not pleaded deemed
waived. All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
Section 12 Effect of failure to file return. In
case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
SPECIAL PROCEEDINGS
g.
h.
i.
j.
k.
l.
Reply;
Motion to declare respondent in default;
Intervention;
Memorandum
Motion for reconsideration of interlocutory
orders or interim relief orders; and
Petition for certiorari, mandamus or
prohibition against any interlocutory order.
F. Allowable Reliefs
Section 14 Interim Reliefs. Upon filing of the
petition or at any time before final judgment, the
court, justice, or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. The court,
justice or judge, upon motion or motu propio,
may order that the petitioner or the
aggrieved party and any member of the
immediate family
be protected in a
government agency or by an accredited
person or private institution
capable of
keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may ne extended to the
officers concerned.
The SC shall accredit the persons and
private institutions that shall extend
temporary protection to the petitioner or
aggrieved party and any member of the
immediate family, in accordance to the
guidelines which it shall issue.
The accredited persons and private
persons and private institutions shall
comply with the rules and conditions that
may be imposed by the court, justice or
judge.
SPECIAL PROCEEDINGS
or places to be inspected.
It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of the
enforced disappearances or whereabouts of
the aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged
nature of the information, the court, justice
or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The movant must show that the
inspection order is necessary to establish
the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the
person or persons authorized to make the
inspection and the date, time, place and
manner of making the inspection and may
prescribe other conditions to protect the
constitutional rights of all parties. The order
shall expire five (5) days after the day of its
issuance, unless extended for justifiable
reasons.
More
similar
to
production
of
documents or things under Sec. 1 Rule
27 of Rules of Civil Procedure
G. Penalties
Sec. 7 Panalty for Refusing to Issue or Serve
the Writ. A clerk of court who refuses to issue
the writ after its allowance or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
H. Burden of Proof
the
SPECIAL PROCEEDINGS
K. Other Matters
Section 24 Substantive Rights. This Rule
shall not diminish, increase or modify
substantive rights recognized and protected by
the Constitution.
B. Aspects of Filing
Sec. 2 Who May File. Any aggrieved party
may file a petition for the writ of habeas data.
However, in cases of extralegal killings and
enforced disappearance, the petition may be
filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and patents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any
concerned
citizen,
organization,
association or institution if there is no
known member of the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein
Sec. 3 Where to File. The petition may be
filed with the RTC where the petitioner or
respondent resides, or that which has
jurisdiction over the place where the data or
SPECIAL PROCEEDINGS
D. Aspects of Return
Sec. 4
Where Returnable; Enforceable.
When the writ is issued by a RTC or any judge
SPECIAL PROCEEDINGS
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
F. Penalties
Sec. 8 Penalty for Refusing to Issue or Serve
the Writ. A clerk of court who refuses to the
writ after its allowance , or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
Sec. 11 Contempt. The court, justice or judge
may punish with imprisonment or fine a
respondent who commits contempt by making a
false return, or refusing to make a return; or any
person who otherwise disobeys or resist a lawful
process or order of the court.
Sec. 14
Return; Filing. In case the
respondent fails to file a return, the court,
justice or judge shall proceed to hear the
petition ex parte, granting the petitioner such
relief as the petition may warrant unless the
court in its discretion requires the petitioner to
submit evidence.
H. Return of
Thereon
Judgment,
Hearing
J. Other Matters
Sec. 24 Suppletory Application of the Rules of
Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
SPECIAL PROCEEDINGS
Nature,
scope,
function
Where filed
Habeas Corpus
All
cases
of
illegal
confinement and detention
which
any
person
is
deprived of his liberty; or
rightful custody of any
person is withheld from the
person entitled (102.1)
Actual violation before
writ
issues.
Note
Villavicencio v. Lukban
on applicability of the
writ
in
case
of
constructive restraint
May be suspended in cases
of invasion or rebellion
when public safety requires
it (Consti. Art. III Sec. 15)
By a petition signed and
verified by the party for
whose relief it is intended,
or by some person on his
behalf (102.3)
Amparo
Involves right to life, liberty
and security violated or
threatened with violation
by an unlawful act or
omission of a public official
or employee or a private
individual or entity
It covers extralegal killings
and
enforced
disappearances or threats
thereof.
Habeas Data
Involves the right to privacy
in life, liberty or security of
the aggrieved party and
covers extralegal killings
and
enforced
disappearances
Shall
not
diminish,
increase
or
modify
substantive rights (RWA
Sec. 23)
Petition
filed
by
the
aggrieved party or by any
qualified person or entity in
the following order:
a) Any member of the
immediate family
b) Any
ascendant,
descendant or collateral
relative of the aggrieved
within the 4th civil degree
of
consanguinity
or
affinity
c) Any concerned citizen,
organization, association
or institution
Filing by the aggrieved
suspends the right of all
others (RWA Sec. 2 )
Granted by:
SC
or
any
member
thereof, on any day and
at any time
CA
or
any
member
thereof
in
instances
authorized by law
RTC or a judge thereof,
on any day and at any
time, enforceable only
within his judicial district
(102.2)
MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section 35
BP 129)
Shall
not
diminish,
increase
or
modify
substantive rights (RWD
Sec. 23)
Any aggrieved party may
file a petition for the WHD
- However, in cases of
extralegal killings and
enforced
disappearances,
the
petition may be filed by
(also successive):
a) Any member of the
immediate family of
the aggrieved
b) Any
ascendant,
descendant
or
collateral relative of
the aggrieved party
within the fourth
civil
degree
of
consanguinity
or
affinity, (RWD Sec.
2)
Petition may be filed with
RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of petitioner
If public data files of
government offices, petition
shall be filed with the SC,
CA, or SB (RWD Sec. 3)
SPECIAL PROCEEDINGS
Limitations
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Where
enforceable
Where
returnable
Amparo
Writ shall be enforceable
anywhere in the Philippines
(RWA Sec. 4)
Habeas Data
Writ shall be enforceable
anywhere in the Philippines
(RWD Sec. 3)
If issued by:
- The SC or any of its
justices, before such
Court or any justice
thereof, or CA or SB or
any of its justices, or the
RTC of the place where
the
petitioner
or
respondent resides / has
jurisdiction
over
the
place where the data or
information is gathered,
stored or collected
- The CA or SB or any of
its justices, before such
court or any justice
thereof, or the RTC
(same with scenario: SC
issued
and
then
returned in RTC)
- RTC, returnable before
such court or judge
(RWD Sec. 4)
None for indigent petitioner
Petition shall be docketed
and
acted
upon
immediately,
w/o
prejudice to subsequent
submission of proof of
indigency not later than 15
days from filing (RWD Sec.
5)
Petitioner
shall
be
exempted
from
the
payment of the docket and
other lawful fees
- Court, justice or judge
shall docket the petition
and
act
upon
it
immediately (RWA Sec 4)
SPECIAL PROCEEDINGS
Docket Fees
Habeas Corpus
If SC or CA issued,
anywhere in the Philippines
Essential
allegations/
Contents of
petition
Amparo
Signed and verified and
shall allege:
a) The
personal
circumstances of the
petitioner
b) Name or appellation and
circumstances of the
respondent
c) The right to life, liberty,
and security violated or
threatened
with
violation,
d) The
investigation
conducted, if any, plus
circumstances of each
e) The
actions
and
recourses taken by the
petitioner
f) Relief prayed for
Habeas Data
Verified
and
written
petition shall contain:
a) Personal circumstances
of
petitioner
and
respondent
b) Manner the right to
privacy is violated or
threatened
and
its
effects
c) Actions and recourses
taken by the petitioner
to secure the data or
information
d) The location of the files,
registers, or databases,
the government office,
and the person in charge
or control
e) The reliefs prayed for
SPECIAL PROCEEDINGS
When proper
Habeas Corpus
Signed and verified either
by the party for whose relief
it is intended or by some
person on his behalf,
setting forth:
a) The person in whose
behalf
whose
the
application is made is
imprisoned or restrained
of his liberty
b) Name of the person
detaining another or
assumed appellation
c) Place
where
he
is
imprisoned or restrained
of his liberty
d) Cause
of
detention
(102.3)
Respondent
How
executed and
returned
Amparo
Respondent is a public
official or employee or
private individual or entity
Habeas Data
A
public
official
or
employee or a private
individual or entity engaged
in gathering, collecting or
storing data
Respondent files the return
SPECIAL PROCEEDINGS
Habeas Corpus
May or may not be an
officer
When to file
return
Same with WA
Contents
return
Amparo
Within 5 working days after
service of the writ, the
respondent shall file a
verified
written
return
together with supporting
affidavits which shall, ,
contain:
a) Lawful defenses
b) The steps or actions
taken to determine the
fate or whereabouts of
the aggrieved party
c) All relevant information
in the possession of the
respondent pertaining to
the
threat,
act
or
omission
against
the
aggrieved party
d) If the respondent is a
public
official
or
employee,
the return
shall further state acts:
i. To verify identity of
aggrieved party
ii. To
recover
and
preserve evidence
iii. To identify and collect
witness statements
iv. To determine cause,
manner, location, and
time of death or
disappearance
v. To
identify
and
apprehend
persons
involved
vi. Bring
suspected
offenders before
a
competent court (RWA
Sec.9)
the respondent shall file
a verified written return
together with supporting
affidavits (RWA Sec. 9)
Habeas Data
a) Lawful defenses such as
national security, state
secrets,
privileged
communications,
confidentiality of the
source of information of
media etc.
b) In case of respondent in
charge, in possession or
in control of the data or
information subject of
the petition:
i. A disclosure of the
data or information
about the petitioner,
the nature of such
data or information,
and the purpose for
its collection
ii. The steps or actions
taken
by
the
respondent to ensure
the
security
and
confidentiality of the
data or information
iii. The currency and
accuracy of the data
or information held
Other allegations relevant
to the resolution of the
proceeding (RWD Sec.10)
SPECIAL PROCEEDINGS
Formalities
of return
of
Habeas Corpus
When the person to be
produced is imprisoned or
restrained by an officer the
person who makes the
return shall state, and in
other cases the person in
whose custody the prisoner
is found shall state in
writing to the court or
judge before whom the writ
is returnable:
a) Truth of custody/power
over the aggrieved
b) If has custody or power,
or under restraint, the
authority and the cause
thereof, with a copy of
the
writ,
order,
execution
or
other
process, if any upon
which the party is held;
c) If the party is in his
custody or power, and is
not
produced,
particularly the nature
and
gravity
of
the
sickness or infirmity
d) If he has had the party
in his custody or power,
and
has
transferred
such
custody
or
restraint to another,
particularly to whom, at
what time, for what
cause, and by what
authority such transfer
was made. (102.10)
Penalties
For refusing
to issue or
serve
For
faulty
return
Yes.
Rule.
No
prohibition in
of
Date
time
hearing
and
of
Effect
of
failure to file
return
Nature
Hearing
Amparo
CoC who refuses to issue
the
writ
after
its
allowance, or
a deputized person who
refuses to serve the
same,
Summary.
However, the
court, justice, or judge may
call for a preliminary
conference to simplify the
issues
and
look
at
possibility
of
obtaining
stipulations
and
admissions
from
the
parties.
Hearing shall be from
day
to
day
until
completed;
same
priority as petitions for
WHC
Not later than 7 days from
the issuance of the writ
Habeas Data
COC who refuses to issue
the
writ
after
its
allowance, or
a deputized person who
refuses to serve the same,
shall be punished by the
court, justice, or judge for
contempt without prejudice
to
other
disciplinary
actions (RWD Sec. 8)
The court, justice, or judge
may
punish
with
imprisonment or fine a
respondent who commits
contempt by:
Making a false return or
Refusing to make a
return; or
Any
person
who
otherwise disobeys or
resists a lawful process
or order of the court
(RWD Sec. 11)
Yes, by the court, for
justifiable reasons (RWD
Sec. 10)
No, by virtue of RWD Sec.
10, last sentence.
SPECIAL PROCEEDINGS
Habeas Corpus
CoC who refuses to issue
the writ after allowance
and demand,
Or a person to whom a
writ is directed, who:
neglects/refuses
to
obey or make return of
the same according to
the command thereof,
or makes false return,
or upon demand made
by or on behalf of the
prisoner, refuses to
deliver to the person
demanding, within 6
hours a true copy of
the warrant or order of
commitment,
Habeas Corpus
Prohibited
pleadings
of
Presumption
of
Official
duty
Preponderance of evidence
Yes.
Consonant
wit
102.13, stating that if
warrant of commitment is
in pursuance with law,
serves as prima facie cause
of restraint
Judgment
Appeals
Consolidation
of actions
Effect
filing
criminal
action
of
Habeas Data
Same as writ of amparo
(RWD Sec. 13)
Substantial
evidence
required to prove the
allegations in the petition
(RWD Sec. 16)
SPECIAL PROCEEDINGS
Burden
Proof
Amparo
Motion to dismiss, Motion
for extension of time to file
opposition,
affidavit,
position paper and other
pleadings, Dilatory motion
for postponement, Motion
for bill of particulars,
Counterclaims or crossclaims,
Third-party
complaint, Reply, Motion to
declare
respondent
in
default,
Intervention,
Memorandum, Motion for
reconsideration
of
interlocutory
orders
or
interim
relief
orders,
petition
for
certiorari,
mandamus, or prohibition
(RWA Sec.11)
Establish
claims
by
substantial evidence
if respondent is a private
individual or
entity,
ordinary diligence
if
public
official
or
employee, extraordinary
diligence
Public official or employee
cannot
invoke
the
presumption that official
duty has been regularly
performed (RWA Sec. 17)
CHAPTER 8: Corporate
Rehabilitation
Procedure
1. Petition for rehabilitation with
rehabilitation plan and pertinent
annexes included therein
2. Court issues Stay Order and
appoints receiver (within 5 working
days from filing)
3. Publication (once a week for 2
weeks) and service of copy to
creditors
4. Creditors pass opposition (15 days
before the date of initial hearing)
5. Initial Hearing (within 45-60 days
from the filing of the petition)
6. Approval of Rehabilitation plan
(within 120 days of passing) and
termination of stay order
7. Appeals
/
Termination
of
rehabilitation proceedings
I.
II.
III.
IV.
Corpo Rehab
To enable a distressed
corporation to gain a
new lease on life and
continue business
Only
available
to
corporations,
partnerships
or
associations
Insolvency
To close and liquidate
insolvent corporation
Intended
to
close
corporations but also
available to individuals
and natural persons
Jurisdiction
over
corporate
rehabilitation was vested in the SEC
under PD 902-A, as amended
RA 8799 transferred this to regular
courts, and new Rules direct filing
in the RTCs, depending on the
operative venue
Proceedings under this Rule shall be in
rem and summary and nonadversarial.
Venue
New Rules now explicitly provides (Rule
3, Sec. 2):
1. It should be the office specified in its
articles of incorporation or partnership.
2. Where the principal office of the
corporation, partnership or association
is registered in the SEC as Metro
Manila, the action must be filed in the
RTC of the city or municipality where
the head office is located.
3. A joint petition by a group of companies
shall be filed in the RTC which has
jurisdiction over the principal office of
the parent company, as specified in its
Articles of Incorporation.
The
Interim
Rules
only
cover
rehabilitations that are:
(1) Debtor-Rehabilitation (Rule 4)
(2) Creditor-Initiated (Rule 5)
SPECIAL PROCEEDINGS
(3)
the petitioner to
a newspaper of
the Philippines
(2) consecutive
SPECIAL PROCEEDINGS
Pre-Negotiated Rehabilitation
(Rule 6)
The General Provisions (Rule 3, and
what is covered by this part) applies to
all types. Also, certain provisions on
Debtor-Initiated Rehabilitation (Sections
5-12 of Rule 4) are expressly made
applicable
to
Creditor-Initiated
Rehabilitation (Rule 5).
Recognition of foreign proceedings:
The provisions on Recognition of
Foreign Proceedings (Rule 7) are not
expressly provided in the Interim
Rules.
Such recognition in new Rules is a new.
Previously, the absence of express
provisions gave rise to many issues
that only delayed the speedy
resolution of the proceedings
New rules on the recognition of
foreign
rehabilitation
proceedings covers cases where
assistance is sought in Philippine
court by a foreign court in
connection with a foreign state
rehabilitation
proceeding,
or
assistance in both foreign and
domestic proceedings taking place
at the same time
III.
HEARING
Hearing (initial) shall then be conducted
not earlier than 45 days but not later
than 60 days from filing thereof
Prohibited pleadings.
a. Motion to dismiss;
b. Motion for a bill of particulars;
c. Petition for relief;
d. Motion for extension;
e. Motion for postponement;
f. Third-party complaint;
g. Intervention;
h. Motion to hear affirmative defenses;
and
i. Any pleading or motion which is
similar to or of like effect as any of
the foregoing.
IV.
CORPORATION
PLAN
REHABILITATION
OF
SPECIAL PROCEEDINGS
V. FINAL ORDERS
THEREFROM
AND
APPEALS
SPECIAL PROCEEDINGS