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SPECIAL PROCEEDINGS What is a special proceeding?

Rule 1, section 3 (c): remedy which a party seeks to establish a right, status, or particular fact What is the difference between Specpro, ordinary civil action, summary procedure? Ordinary civil action: Rule 1, section 3 (a): civil action may be ordinary or special. Summary procedure: What special proceedings are provided in the rules? Those in the Rules of court!! But take note that there are other special proceedings enforced by law like enforcement of arbitration awards How are special proceedings summary judgment? distinguished from

be found NOTE: the court first taking cognizance excludes all other courts otherwise there will severable proceedings When may you contest the assumption of jurisdiction of the court? a. In an appeal from that settlement proceeding in the original case b. When the want of jurisdiction appears on the record. In this case it is obvious, so you do not need to proceed. If the improper venue is not patent then there must be evidence presented to show that there is want of jurisdiction. How do you settle of a deceased married person? If both of them die, then their estates can be settled in either of the proceeding. What is the nature of probate proceedings? They cannot resolve collateral matters, only those matters pertaining to the settlement of the estate. Example: they can only settle those liquidation and distribution of estate May the probate court decide on issue of ownership? GR: NO. Except: a. When the parties to the settlement submit themselves to the court to resolve issue on ownership b. Provisionally for purposes of inventory What are the different kinds of settlement proceedings? a. Principal b. Ancillary decreed by foreign court or when some of properties are in foreign country What is the nature of an estate? It is in the nature of an artificial person however there is now a conflict in the jurisprudence that says it is not an artificial person. What is the extent of jurisdiction of probate courts? Merely on the settlement of estate What warrants and processes may the courts may issue? [Rule 73, section 3] In the exercise of probate jurisdiction, Courts of First Instance may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law. The court may issue a warrant for the apprehension and imprisonment of a person [until s/he performs the order or judgment] if such person does not perform the order or judgment rendered by a court in the exercise of its probate jurisdiction.

Are the rules in ordinary civil actions applicable in special proceedings? Yes in some instances. Like filing and service of pleadings Special Proceeding v. Ordinary Civil Action Special Proceeding there is only one party as a general rule commenced through a petition no responsive pleading is required unless there is an oppositor limited jurisdiction no need for cause of action, you precisely go to court to establish that particular right Ordinary Civil Action

commenced through a complaint responsive pleading is called an answer

there is a cause of action which is the right violated 15 day ordinary period of appeal a record on appeal is not required judgment

Record on appeal is usually required, multiple appeals are allowed decree

NOTE: there are some special proceedings that are to be filed in FAMILY COURTS/REGIONAL TRIAL COURT SETTLEMENT OF ESTATES Rule 86 In what courts should the estate of a deceased be settled? It depends on:

Jurisdiction consider the gross value of the estate [exceeds 300k/400k depends if outside/inside Manila RTC] if less than that, MTC (if in Manila, MetroTC) Venue: Consideration is his residence, residence not domicile!! Physical habitation at the time of his death If the decedent is a non-resident file in the court having jurisdiction where any of his property can

May the estate of an absentee be settled? Yes! What are the modes of settlement? a. Judicial Intestate REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

b.

Partition Summary when the gross value of the estate DOES NOT EXCEED 10k (this is irrelevant! Wala namang estate na Php10k!!) Extrajudicial Settlement Among several heirs Sole heir self adjudication

Why is the production of wills mandatory? a. Based on civil code on succession (article 888) b. Against public policy c. Imprescriptible there is no time bar where the will may be probated What is the effect of probate? Rule 39, Section 47 effect of judgment: res judicata in actions in rem Conclusive as to its due execution When you say that it is conclusive as to its due execution, what do you mean by that? That the decedent has/had testamentary capacity because he knows/knew the nature of his estate and the persons entitled to inherit it What about the testamentary dispositions? Can the probate court pass upon this? As a general rule: NO Exception: The practicality rule. e.g. if there is preterition, it is obvious on the face that the will is not valid and it would not be practical for the court to proceed with probate without considering the validity of the testamentary disposition What are the duties of the custodian of the will? What kind of custody is contemplated? Section 2. Custodian of will to deliver. The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. Section 4. Custodian and executor subject to fine for neglect. A person who neglects any of the duties required in the two last preceding sections without excused satisfactory to the court shall be fined not exceeding two thousand pesos. Section 5. Person retaining will may be committed. A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will. Not every type of possession of the will is included. The custody must be in the nature of bailment. You have to tell the person that he has to deliver it otherwise he will not be held accountable. If you dont tell him that then section 4 will not come into place. Note that the executor should present the will if he is in possession of it. What is the difference between section 4 and section 5 of Rule 86? What is the nature of the proceeding? Section 4: There is a penalty in the nature of a fine. There is no pending probate proceeding so it is merely in the nature of a penalty. In order to enforce the fine you have to file a criminal action. Section 5: There must be a prior order. Meaning there must be a pending settlement proceeding. When can the court hold the person who fails to deliver the will in contempt? Section 5 DOUBLE CHECK THIS, Im not sure

When may there be extrajudicial settlement? When the decedent left no will and no debts If there are outstanding debts, what will happen? The heirs can opt to pay debts first then proceed with extrajudicial settlement What do you mean of newspaper of general circulation? Is Bomba included? No! There must be a BONA FIDE subscription. But nevertheless the SC now allows to be published in these kinds of newspapers There should be 21 days of publication, but if there is a total of 15 days of publication that is sufficient <- double check Why do you need publication? Because the proceedings are QUASI-IN REM When real properties are subject to extra judicial partition, what are other requirements? Registration of the affidavit of sole adjudication Why is registration required? The lis pendens is technically not a lien, it is merely in the nature of a notice. The affidavit of sole adjudication is required to be registered so that all other persons may be notified, and so they have the opportunity to present their claims before the period of prescription. If it is a real property, the period of prescription is two years from the date of registration. To whom does this two year period apply? Those unduly deprived in their participation in the estate as an heir. This does not apply to those heirs who were deprived of their right to participate, as this becomes an implied trust (10years). This only applies to heirs who took part in the settlement and cheated among themselves. Even creditors can demand from those who took part, and they may be bound as to the 2-year period. After the lapse of this two-year period, do you have to go to court to cancel the annotation? No, it becomes functus officio What are the modes that are in rem?

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

What are the contents of a petition for probate? Section 2. Contents of petition. A petition for the allowance of a will must show, so far as known to the petitioner: a. The jurisdictional facts; b. The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; c. The probable value and character of the property of the estate; d. The name of the person for whom letters are prayed; e. If the will has not been delivered to the court, the name of the person having custody of it. But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. Note: It is not required that you have an existing interest to be an executor/administrator. Note: 6, 7, 8, and 9 these are provisions regarding weight and sufficiency of evidence for purposes of allowing in the will.

sufficient to show you are still alive. Rule 87 Do you need to file an action under Rule 87? As a general rule, no, because you have to present the will in Rule 86. Exceptions:

a.
b.

Action to recover real or personal property because they are not money claims Foreclosure of real estate Damages for an injury to persons or property earlier we said money claims present it under Rule 86 Judgment for Money, in here, Judgment for Damages. Example: subpoena by the decedent of those who are in Samar, but it turned out that the subpoena was fictitious but the decedent dies during the pending of the case, so you can still claim this

c.

What are the grounds for disallowing a will? a. Formalities were not followed b. Testator not of sound mind at the time he executed the will c. Vitiated consent d. Signed the document without the intention of creating a will What is the reprobate of will? It is a special proceeding to establish the validity of a will previously proven in a foreign country What are the things to be proven? a. That the court is a probate court b. Prove foreign law c. Lex loci celebrationis in accordance with the formalities of the will What may be probated? Any instrument that contains testamentary disposition and complies with the formalities of law NOTE: a petition/motion/presentation of claims to the probate court is not an initiatory pleading, so you dont need a certificate of non-forum shopping even if there is a new matter or a new claim. Just present your claim. What is the nature of estate of a deceased? There are conflicting decisions! In one case, the court says the estate has no capacity to sue, as it is not a juridical person. In another case, the court said it is a juridical entity that can sue and be sued. Can you appeal summary cases under the Family Code? No. According to a case (Republic v. Loguino? Londrino???) Summary cases under the family ode, NO APPEAL may be taken, specifically an action for presumptive death for purposes of remarriage w/c are final and executory. Do NOT confuse this situation w/ cases on summary procedure. The remedy is CETIORARI b/c 65 says where there is no appeal or adequate remedy under the law. Of course if you are presumed dead, you dont need to re-appear, an affidavit is

How long may the admin/exec retain property not distributed in the will? For as long as there are still debts to be paid, the admin/exec has power to retain the property in the estate. This is why Section 3 forbids the exec/admin to sue until the heirs are assigned. This usually happens when there is already partition, until it is assigned the rights are inchoate. What do you mean to compound? Compound simply means to compromise with the debtor, note that this should be w/ approval of the court. How is Section 6 different from Rule 39? The purpose of this in SpecPro is to find out if there are properties w/ third persons. The proceeding is inquisitorial. If these are made, and it is found that 3rd persons are in possession, you cannot compel the person to put the prop back, you have to bring an action. HOWEVER in Rule 39 you can COMPEL the person to deliver to court w/o the necessity of filing an action. This is how rule 39 and rule 87 are different. 28 Phil 137?? Under Section 7, who is the other person referred to? It is someone who was designated by the executor/administrator, which usually happens when the executor/administrator does not live in the place where the property is located, so he asks someone to manage for him. When that person does not give the proceeds, apply sec 7. To what situation does Section 8 refer? To the period before the issuance of letters testamentary, if there is embezzlement, the penalty is DOUBLE the value of the property. BUT if the decedent authorized the person to administer the property this provision does not apply (as in the case of adminstrators). This provision only applies to unauthorized people. NOTE: Section 9 is similar to the provisions in Civil Law of transactions in fraud of creditors E.g. X is about to die, he has cancer. He alienates his property to his friend on the condition that when his children come of age, the friend has to give to his children (Because his liabilities exceed assets). X dies. The admin finds out that there was an alienation in fraud of creditors, avail of sec 9. Under Section 10, if the executor does not bring action, creditor may bring action to recover property fraudulently conveyed during the lifetime of the decedent. The creditor is a third party who is allowed to bring an action to recover the 3

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

assets. In order to protect the estate, the creditor must put up a bond, as it may have been a transaction at arms length. Also, the action must be brought on behalf of all the creditors, and there must be approval of the court. However, if the action is by the creditor against the administrator himself, the requirement of prior court approval may be dispensed with. Rule 90 When may order for distribution be made? This procedure is preceded by an order of partition. An order of partition is an agreement among the heirs. You cannot have distribution if there are debts to be paid, so prior to distribution, the heirs may agree on the project of partition because sometimes it is not practical to demand physical distribution of the property What is the jurisdiction of the probate court? Earlier we said probate courts have limited jurisdiction and cannot pass on ownership. This section tells us what other matters can be determined by the probate court. The probate court can pass upon:

execution

Rule 74 Sec 4 Liability of distributes and estate Rule 88 Sec 6 Court to fix contribute shares where devisees, legatees or heirs have been in possession Rule 90 Sec 3 By whom expenses of partition paid Rule 142 Sec 30 Rule 90 Sec 1 o Estate of Pran v. Salas 210 SCRA 303 execution may be issued against admin/exec to distribute property to the heirs

NOTE: the probate court not limited to settlement proceedings, also has jurisdiction over guardianship ESCHEAT What is escheat? In default of heirs, the state inherits. What are the requisites of escheat? Someone died

Who are the lawful heirs of the deceased (declaration of heirship) Issue of hereditary shares under the law of legitime (how much the heirs can receive) Collation (see Sec 2) NOTE: these are resolved in an ORDINARY action, but the probate court will be the one trying the case. Since it is an ordinary case, there must be a full blown trial w/ presentation of evidence. How can you effect distribution if there are contingent claims? If the existing claims are contigent b/c they are not due and demandable, you can give a bond to answer to answer for contingent liabilities, then you can have distribution. Which properties may be subject to collation? Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (1035a) Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a) Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a) Section 3 and 4 were read aloud. VERY IMPORTANT: WRITTEN IN THE SYLLABUS Instances when probate court can issue writ of

Leaving no heir or person entitled by law to inherit (this is INTESTATE! If he died w/ a will though an instituted heir is not legally mandated to inherit, you follow the will of the testator and escheat will not take place) Initiated by the Solicitor General NOTE: the seizure refers to an owner in fee simple What are the three kinds of escheat? 1. Sec. 1. No heir, no will 2. Sec. 5. Alienation in violation of law. Republic v. Quasha: Recent jurisprudence recent when property is illegally transferred and is already titled in favor of a THIRD PERSON through a legal transaction, the court cannot take the property back. Escheat is only applicable if the transaction was illegal. 3. Act 3936. Unclaimed Balances Law. Dormant accounts. Where the res is located In whose name are estate actions filed? In the name of the REPUBLIC of the Philippines not People of the Philippines NOTE: in FORFEITURE proceedings are criminal in nature but effect is civil. They must be filed in the name of the Republic of the Philippines and not by People of the Philippines. Proceedings are now filed by the Ombudsman not the SolGen (Cabal v. Kapunan G.R. No. L-25018) What is the required period for publication? See Sec 2. In escheat the publication is longer than usual, as the law requires 6 weeks consecutive weeks for publication. The idea is to give people a longer period to come forward to claim the property Can you convert a probate proceeding into an escheat proceeding? NO because the rules are different!! Similarly, you cannot convert settlement proceeding into an escheat proceeding. Who is entitled to the property escheated? The municipalities! Ordinarily where they are located

Within what period do you have to claim the estate escheated? REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) 4 Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

If a person entitled to the estate escheated appears and files a claim with the court within five (5) years from the date of the judgment, he shall obtain possession and title to the property. If it has already been sold, the municipality or city shall be accountable to him for the proceeds, after deducting expenses for the care of the estate, but a claim not made with said time shall be forever barred. TRUSTEES This Rule only applies to express trusts NOT implied trusts. Distinguish a trustee from an executor/administrator Trustees are not limited to carrying out the settlement of the estate. Even if the trustor is alive trustee may act. Administrators/executors are limited to the settlement of the estate, and has a limited duration. If there is property that is supposed to be left to a minor, the testator can provide for a specific trustee to manage this property, because the executor has limited duration. As a general rule the trustee must file a bond. What are the exceptions to this rule? When the testator has directed or requested such exemption; and When all persons beneficially interested in the trust, being of full age, request the exemption. NOTE: Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond. What are the conditions included in the bond of the trustee? See Sec 6 Rule 98

What are the requisites for resignation of the trustee? Trustee must render his final account so he can be held accountable in case anything is missing Dont need the grounds for removal Must be approved by the court What is the limitation on the powers of the trustee? Sec 9 Rule 98. The powers of the trustee are limited with respect to the sale of the properties under the administration, as there must always be prior court approval.

a.

Make a true inventory of all the real and personal estate belonging to him as trustee; Manage and dispose of all such estate, and faithfully discharge his trust; Render upon oath at least once a year until his trust is fulfilled, unless he is excused, a true account of the property in his hands and of the management and disposition thereof; At the expiration of his trust, settle his accounts in court and pay over and deliver all the estate remaining in his hands

b. c.

d.

Discussion on conditions of the bond: Purpose to ensure that whoever assumes the office knows which property is included. He should administer the properties. The degree of care is that of a extra-ordinary diligence The other condition is that he must render an accounting. This will determine w/n there is good/bad administration b/c it will show what you started w/ and which properties are left. What are the requisites for removal of a trustee? 1. File a petition 2. Notice to trustee 3. Hearing REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan 5

GUARDIANSHIP NOTE: For guardianship of MINORS you have to go to family courts. But for anyone else you can go to the regular courts. READ A.M. No. 03-02-05-SC [May 01, 2003] Re: Proposed Rule on Guardianship of Minors Sec. 27. Effect of the rule. This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court. Who may petition for guardianship of minors? Any relative Third person on behalf of minor If minor over certain age, minor himself Secretary of health Secretary DSWD Where do you file petition as to venue? In the family court where the minor has actual residence What are the circumstances considering in granting guardianship? See Family Code provisions on substitute parental authority. Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317) Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a) Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n) Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. What are the grounds for a petition of guardianship? See Sec 4.

c.

remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental authority; or d. when the best interests of the minor so require. Also consider: Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) Even if the minor has parents, if the best interest of the child is prejudiced, the child can have a guardian. This is because of the doctrine of parens patriae. Who may be appointed as a guardian? There is an order of preference, firstly the grandparents, if none, oldest brother or sister over 21 years of age, then the actual custodian over 21 years of age, or any person at the discretion of the court who would serve the best interests of the minor What if all the grandparents survive? There is no preference/heiarchy among the grandparents. Is the order of preference mandatory? NO. because the rule says so: observing as far as practicable What are the contents of the petition for guardianship? a. Jurisdictional facts Those that set forth facts that show the case is within the jurisdiction of the court b. Name, age, prospective wards c. Ground

d.

State who the relatives are w/in the 4th civil degree, and they should be notified

Who may oppose the petition for guardianship? No longer a minor

That the person for whom letters of guardianship are prayed is UNSUITABLE

In which case the person can ask that the petition for guardianship be denied, or that letters of guardianship be issued to himself or to another suitable person named in the opposition. What is the venue when the minor is a non-resident? Where the properties of the minor can be found Is the presence of the non-resident minor required? The court may dispense with the presence of the nonresident minor. Does the judgment become final in guardianship? See Sec 26 + 13 in A.M. No. 03-02-05-SC 6

a. b.

death, continued absence, or incapacity of his parents; suspension, deprivation or termination of parental authority;

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

It becomes final, and is entered w/ civil registrar, and annotated on the title of the property belonging on the minor. When the the minor becomes of age, you have to go to court to cancel the guardianship, then you have to go to the civil registrar and have it entered again. NOTE: Even if there is already a decree granting guardianship, it doesnt end there, the guardian has to report regularly and ask permission from the court to do things like sell/encumber the property. Guardianship only terminates when the minor becomes of age and you go to court and have the guardianship terminated. Under the old rule, you had go back to same court which granted the guardianship. However, under the present rule, you can go to any court to have cancelled. If reason for guardianship is not just minority but is also incompetency, when does it terminate? o When the ward dies! Then notify court of the wards death What about the bond requirement for parents? If the market value of the property or the annual income of the child exceeds P50,000, the parent should give a bond in the amount determined by the court, but this bond cannot be less than 10% of the value of such property. When can the guardian sell or encumber the property? See Sec 19. When the income of a property under guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be sold etc. Can the property of the ward be disposed or encumbered for the benefit of the family? NO. Family Code Art 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. Note that the property belongs to the child ONLY, and shall be devoted EXCLUSIVELY for the childs support and education, UNLESS the title so provides. This is a deviation from the old rule that parents enjoy usufructuary rights on the property of the minor Sec 24 grounds for removal or resignation: Sec. 24. Grounds for removal or resignation of guardian. When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto. The court may allow the guardian to resign for justifiable causes. 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 proper accounting of the property of the ward and the court has approved the same. This is VERY similar to the provision on TRUSTEES. Note the requirement of accounting. REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

ADOPTION What is adoption? It is a juridical act, a proceeding in REM, That creates between two persons a relationship similar to that which results form legitimate paternity and filiation What is filiation? Rights and responsibilities of children with their parents What is paternity? Rights and responsibilities of parents to their children What laws apply? Domestic adoption and Inter-country adoption DOMESTIC ADOPTION Who may adopt? Yes. See Sec 4. Filipinos of legal age, with full civil capacity, of good moral character, not convicted of a crime involving moral torpitude, emotionally and psychologically capable of caring for child, at least 16 years older and in a position to support and care of the child. Can aliens adopt? Yes. See Sec 4. They must have all the qualifications of the Filipinos, and additional requirements:

birth was made prior to the date of effectivity of RA 8552, and that the petition for adoption was filed within 5 years from that date. Who may be adopted? See Sec 5 What is the rule when there are four petitions in one? One single petition for adoption, there are several reliefs prayed for: grant adoption, change of name.? Whos consent is required for adoption? Children of the adoptive parents Adopted children of the adoptive parents Do you have to present the party giving consent? No, a verified affidavit is sufficient Does adoption give rise to the right to acquire citizenship? No, citizenship is a matter of political law, adoption is a process in civil law. You have to go through the process to acquire citizenship. Note: Sec 16 The decree of adoption take effect as of the date of the filing of the original petition. Thus, adoption retroacts to the date of the filing the petitionThat way if even before the issuance of the decree the adopter dies, the adopted child can inherit from the adopter. What is the effect of adoption? Legal tie between parents and child terminate Adopted child is considered the legitimate child of the adopter and can inherit from the adopter

Resident Philippines at least 3 years prior Maintain residence until adoption is final Certified to have legal capacity to adopt by his country His country allows him to adopt

If aliens can adopt in the Philippines, can Filipinos adopt aliens? When is a child legally available for adoption? A child voluntarily or involuntarily committed to the DSWD What is simulation of birth? The tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status Can you be criminally prosecuted for simulation of birth? Yes. You can now criminally prosecuted for simulation of birth RPC Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos. The same penalties shall be imposed upon any person who shall conceal or abandon any legitimate child with intent to cause such child to lose its civil status. Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification.

Reserva adoptive NO LONGER EXISTS. At the death of the adopted child, the estate goes to heirs, if none, goes to adoptive parents Adoptive parents have parental authority INTER-COUNTRY ADOPTION

Who may be adopted? Same as in domestic adoption Whats the role of the RTC? The petition can be filed in the Court having jurisdiction, but it will certify the case to the ICAB. You can also file the petition directly with the ICAB, so really the court has no role. If you file in the Court you need to pay filing fee.[Sec 32 A.M. No.02-6-02-SC] What is the best interest of the minor standard? Must have best interest of child at hard, cant subject child to child-trafficking etc Read requirements in annex: police clearance, character ref, full body postcard-size picture What child trafficking?

After 2003 prosecution for simulated birth was allowed because the amnesty in the law provides that simulation of REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

HABEAS CORPUS What is habeas corpus? Literal translation: have the body with you What are the governing rules of HC? Rule 102 and A.M. No. 03-04-04-SC 2003-04-22 Habeas Corpus in relation to the Custody of Minors Obiter: J. Abads expertise while at OSG was Martial law cases What are the two situations contemplated in S1R102? Unlawful deprivation of liberty Deprivation of custody from one who is entitled to it Whats the difference between the two situtations? Unlawful deprivation of liberty refers to public acts Deprivation of custody refers to private acts What is the nature of habeas corpus? It is a special proceeding in the nature of a civil proceeding. NOTE: Consti provisions related to HC When does habeas corpus apply? o Deprivation of constitutional right resulting in restraint of a person o Court has no jurisdiction to impose sentenc o An excessive penalty has been imposed o Denial of right to speedy trial o When the law is amended, as when penalty is lowered Must physical restraint be the only basis? Actual physical restraint is not required, any restraint which will prejudice freedom of action is sufficient. What are the requisites for the application for the writ of habeas corpus? The petition must be signed and verified either by the party for whose relief it is intended, or by some person on his behalf. It must 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 restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; c) The place where he is so imprisoned or restrained, if known; d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.[Rule 102, Sec 3] What is the responsive pleading to the writ? Return to the writ

commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint. (Sec 13 Rule 102) If he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. (Sec 13 Rule 102) Can you resort to HC in lieu of appeal? NO Can you resort to HC if the right to bail exists? NO, because there is another remedy (the right to bail) that exists Distinguish preemptory writ from preliminary citation Basically, these pertain to the stages in a HC proceeding.

Preliminary citation directing the person to bring the detainee to the court and explain the detention Preemptory refers to the writ already, w/n the court will grant the release, when the court resolves the writ itself See G.R. No. 160792 In the Matter of HC of Alejano When is HC not proper or applicable? As a substitute for appeal For asserting or vindicating denial of right to bail For correcting errors in appreciation of facts/appreciation of law When is the writ allowed to be discharged? Once the person in custody is charged in court, the function of the writ of HC is dismissed. His remedy will now be judicial. Remember that HC has nothing to do with the merits of a particular case. ILAGAN V. ENRILE Facts: Atty. Ilagan was arrested in Davao City & detained on the basis of a mission order allegedly issued by the Ministry of Natl. Defense. He was visited by 15 lawyers fr. IBP Davao Chapter. One of the visitors was also arrested & detained on the basis of an unsigned MO. After several days, another IBP member was arrested. Petitioners argue that the arrests were illegal & violative of the Consti, since arrests cannot be made on the basis of mission orders. Resps. Answered that the Writ was suspended as to them by virtue of Proc. #2045-A. Held: IF the detained attys. Question their detention bec. of improper arrest, or that no prelim inv has been conducted, the remedy is not a pet. for a writ of HC but a Motion for the TC to quash the Warrant of Arrest, &/or the info on grounds provided by the rules or to ask for an investigation/ reinvestigation of the case. This pet. is now moot & academic bec. of criminal charges for rebellion filed vs. the lawyers.

Distinguish between writ of habeas corpus and the writ of amparo (A) and habeas data (HD)? HC: Pertains to legality of detention (there must be an actual detention, custody of the person) What is the responsive pleading to the return? A: Pertains to actual and threatened violations of right to life It is called a TRAVERSE TO THE RETURN liberty or security This is unlike HC which is requires ACTUAL detention. So What is the nature of the return to the writ? A is more broad. See: Umil v. Ramos HD: Pertains to the right to privacy with respect to information dealing with the individuals life security or liberty If it appears that the prisoner is in custody under a warrant of Note there is no specific provision in our consti protecting REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) 9 Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

the right to PRIVACY. WRIT OF HABEAS CORPUS IN RELATION TO THE CUSTODY OF MINORS [A.M. NO. 03-04-04-SC 2003-04-22] NOTE: In order to avail of this writ, the case must be in relation to the custody of minors Kwento about a case: The children were divided into 2 groups, one pro-mother, the other pro-father, one group claims that the other group is unlawfully detaining the father and filed for HC under this rule. The Court held the rule did not apply to this case, because it was about the custody of adults. Note however that custody issues can also pertain to adults, but cases of this nature are not covered by this rule. Where do you file the petition under this rule? Family Court either where the petitioner resides or where the child may be found What is the rule on summons? How is this different from ordinary rules? See Sec 5. There is NO substituted service of summons under this rule. What is the rule on motion to dismiss? See Sec 6. Motion to dismiss is not allowed EXCEPT on the ground of lack of jurisdiction over the subject matter or over the parties. What is the rule on verified answer? See Sec 7. The Answer must be verified and filed within 5 days (not 15 days which is the regular period). What is the rule on pre-trial? See Sec 9. The notice of mandatory pre-trial shall be served separately on both the parties and their respective counsels. Note that pre-trial is mandatory. What is the effect of failure to appear at the pre-trial? See Sec 11. If PETITIONER fails to personally appear, the case shall be dismissed, UNLESS his counsel or duly authorized representative appears in court and provides a valid excuse for his non-appearance. If the RESPNDENT files his answer but fails to appear, the petitioner shall be allowed to present evidence ex-parte. What is the provisional order awarding custody? After: 1. An answer is filed or 2. The period to file an answer has expired The court may issue a provisional order awarding custody. As far as practicable, the preference shall be: Both parents jointly Either parent (taking into account all considerations, especially the preference of a minor older than 7, unless the parent chosen is unfit) Grandparent. If there are several, the one chosen by the minor above 7, unless unfit The eldest older brother or sister over 21, unless unfit or disqualified Any other person or institution deemed suitable by the court

separated from the mother unless the court finds good reason. What are the exceptions to the maternal preference rule? If the mother is unfit or disqualified. What are the factors to be considered in determining who should have custody? See Sec 14. Best interests of the child. What is the rule on temporary visitation rights? See Sec 15. In the order awarding provisional custody, the court shall award visitation rights to the parent who is not awarded custody, unless this parent is unfit or disqualified. When is a hold departure order effective? The moment the petition for HC is FILED, even if there is no issuance of an actual HDO yet. The HDO is effective even before the service of summons. See Sec 16. May an appeal be filed? Yes! See Sec 19. An appeal will not be allowed unless there was a prior MR or MNT. A notice of appeal is allowed within 15 days from the denial of the MR or MNT. NOTE: under this provision the period to appeal is only 15 days. Also note that the mode of appeal is an ordinary appeal. What is rule on the petition for writ of habeas corpus? See Sec 20. The petition shall be verified and filed in the FC where petitioner resides or where the minor may be found. It can be enforced in the judicial region of the FC. Petition can also be filed in the SC and CA, and in this case, can be enforced anywhere in the Philippines. NOTE: this rule was revised because in one case, the respondent kept bringing the child to a different place, so they had to keep filing for HC because it could not be enforced since the new place was outside the judicial region of the FC that issued the writ. Now the rule is that custody can be filed in the CA or SC so they can be enforced nationwide. WRIT OF AMPARO What is the writ of amparo? The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. Who may file? First and foremost, the aggrieved party. In default of the aggrieved party there is an order of preference. The immediate family (spouse, children and parents of the aggrieved party) can then file. Note that the immediate family can only file the petition in DEFAULT of the aggrieved party. In default of both of these, any concerned NGO may file. Why does the rule give preference over who may file? There may be a case where the family does not want to go to court because their own lives are threatened. Against who may the writ be enforced? Public officers, and some private individuals or entities. This is because the private individuals themselves may be responsible. Entities refer to artificial persons. e.g. NPA 10

What is the tender years rule? Art 2173 of the NCC provides that no child under 7 shall be REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

What are extra-legal killings? Without legal safeguards or judicial proceedings. Such as summary and arbitrary executions. What are enforced disappearances? The arrest detention or abduction of an individual by a government agency or private person to silence the individual. At what time can you file? Any time of the day, any day of the week, whether it is a holiday or not. Where do you file? In the RTC where any threat, act or omission was committed. This is not needed for the SB, CA or SC. SB was included because they perceived that most of the petitions would be against public officers. What is the requirement for the return to the writ? See Sec 9. Should be filed within 5 working days after service of the writ Should be filed with affidavits The period to file a return cannot be extended except on highly meritorious grounds Paragraph a is required so you know who you are looking for. Paragraph c is your allegation that is your cause of action. Paragraph d refers to the Commission on Human Rights who should conduct the investigation, requiring the standard of extraordinary diligence. Paragraph e is to prevent fishing expeditions on the part of petitioners. You have to show that you exerted effort to look for the person. What is the manner of service? The rule is PERSONAL service without prejudice to substitute service. What is the rule on defenses not pleaded? See Sec 10. Defenses not pleaded are deemed waived. What are the prohibited pleadings and motions? See Sec. 11. 1. Motion to dismiss; 2. Motion for extension of time to file opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order. NOTE: the prohibition on Motion to Dismiss is ABSOLUTE Read Sec 13 SEC. 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may

call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. NOTE: This amends RULE 20, because it gives preference to amparo proceedings. See the last paragraph. What are these interim reliefs? Temporary Protection Order, Inspection Order, Production Order, Witness Protection Order Which of the reliefs may the court effect motu propio? Temporary Protection Order and Witness Protection Order (because there is no need for a hearing) Why are they required to have hearings? To prevent fishing expeditions! Can respondent avail of these interim reliefs? Why? Yes, but only the Inspection Order and the Production Order. This is because its possible that the person is located elsewhere. Read Sec 16 SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. NOTE: there is a provision on contempt even though this is automatic in courts because this proceeding is a summary proceeding in nature, and courts sometimes exercise only limited jurisdiction. Read Sec 18 SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied NOTE: this is a deviation from the ordinary rules which allows 90 days for a decision NOTE: Rule 45 questions of law or fact or both, within 5 working days. This is a deviation from the ordinary rules. What is this archiving and revival of cases? If the court cannot proceed, the court should NOT dismiss the case, it should archive the case. After 2 years lapse and no action is taken, then the court can dismiss the case. During the 2 years, the action can be revived. What is the rule on preclusion of action? The Writ of Amparo is simply an inquiry to see who is responsible. The court does not make a determination of liability. After amparo, if responsibilities can be pinpointed, then it is without prejudice to the filing of civil, criminal or administrative cases. The court does not determine liability in amparo proceedings to allow for speedy resolution, because in these cases, there is an actual or immediate threat. What is the preference given to criminal actions? See Sec 22. When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal 11

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

case. What is the rule on consolidation? See Sec 23. If a petition for the writ is filed, then a criminal action is subsequently filed, the petition for the writ shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the writ shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. What is meant by the term suppletorily? In case there is a conflict between the ordinary rules and the writ of amparo, the writ of amparo will prevail. What is the quantum of proof required? Substantial evidence. WRIT OF HABEAS DATA What is the writ of habeas data? See Sec 1. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Compare writ of HD w/ writ of amparo. Basic distinction: the subject matter. In amparo, there is an actual/incipient threat on life or security. HD pertains to data, and its objective is for the documents to be destroyed. When is hearing possible in chambers? If the matter concerns national security or state secrets or are privileged in character How is the proceeding conducted? It is summary in nature The other provisions are same as writ of amparo. CHANGE OF NAME Rule 103 Change of name Judicial RA 9048 Correction of clerical or typohgraphical errors Extrajudicia(local civil registrar or consul general if non-resident); administrative correction Includes change of first name or nickname

primary, but not exclusive jurisdiction. Note that if the petition is filed w/ the court, the court should follow the procedure provided in the Rules of Court, not in RA 9048. READ: Silverio v. Republic G.R.No. 174689 Republic v. Jennifer Cagandahan G.R.No. 166676 Republic v. Valencia 225 Phil 408 (198) G.R.No. L-32181 Republic v. Kho G.R.No. 170340 Although the procedure for change of name is summary in nature, the proceeding may also be adversarial. If the petition is filed to correct and delete the date and place of marriage, this will change status of child, so this cannot be done in a summary proceeding. The proceeding can be converted to an adversarial one if all the interested parties in the petition are notified and if they are heard. The deletion of the place and date of marriage of the childs parents will affect the childs successional rights. The Solicitor General and the grandparents must be notified. The grandparents should be notified because the child will become an heir of the grandparents. As such, they are entitled to be heard. ABSENTEES What is the purpose of this rule? To have a representative of the absentee appointed so that he/she may administer the properties of the absentee. If the absentee has no properties, the petition is unnecessary. NOTE: Under this rule, no one has died yet. This is preparatory. If the person is already dead then you go to settlement of estates. When do you file a petition for absence? When a person disappears without leaving a representative to administer his property Where is it filed? In the RTC where the absentee resided before the disappearance Who may file the petition? NOTE: THERE IS NO ORDER OF PREFERENCE!! See Rule 107 Section 2. The spouse present The heirs instituted in a will who may present an authentic copy Intestate heirs Those who have over the property of the absentee, some right subordinated to the condition of his death What is an example of a right subordinated? Creditors Who may oppose? Anyone who has interest to oppose. The oppositor must state in writing the grounds for his opposition. He must serve a copy of this on the petitioner and other interested parties on or before the hearing. See Sec 5. When do you file the petition for declaration? If the person did not leave an agent to administer his properties, 2 to 7 years after the last new received. After 7 years, or after 4 years under extraordinary circumstances, he may be declared presumptively dead. If the person left an administrator, the petition may be filed 5 years from the last news received. 12

Also includes change of surname

The SC held that with respect to the correction of first names or nicknames, primary jurisdiction lies with the civil registrar. Adm. Matter No. 06-7-414-RTC, October 19, 2007: ..local civil registrar has primary, not exclusive, jurisdiction over such petitions for correction of clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil registrar should follow

When a petition for change of name or correction is filed with the court, should the court dismiss the petition? The court should not dismiss, but should continue to hear, not withstanding RA 9048. This law gives the civil registrar REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

NOTE: The provisions in the Family Code are for purposes of remarriage. The court cannot declare a person dead, only doctors can do this. The court will merely declare that a person is presumed dead. Read Rule 39 section 47a (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; NOTE: There is a need for a separate proceeding. Read: In Re: Nicolai Szatraw G.R.No. L-1780 APPEALS IN SPECIAL PROCEEDINGS What is the rule on orders or judgments from which appeals may be taken? See Rule 109 Sec 1. (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing unless it be an order granting or denying a motion for a new trial or for reconsideration. NOTE: This rule covers trustees and guardians. In the course of the proceedings as in guardianship, there are incidents w/c are immediately appealable. What is the period to appeal? 30 days. See Rule 41 Sec 3 Why are multiple appeals allowed? These are special cases. In these cases there are several incidents and you cannot have the proceedings suspended for a long time because an incident was appealed. For example, estate settlement is the first stage is the allowance of a will. This has to be appealed immediately within 30 days. This appeal does NOT suspend the probate proceedings. Each stage in the proceedings is a final adjudication, so multiple appeals are allowed. You cannot wait until the end distribution and partition are completed because by then, the other incidents will have lapsed.

transcript presented in the original court w/ respect to that particular incident. Unlike in an ordinary appeal where the clerk of court should transmit everything. Obviously it is not possible to transmit all the records in cases where multiple appeals are allowed, otherwise the proceeding will necessarily be stopped pending the appeal. This is why there is a record on appeal. NOTE: The record on appeal must be approved by the court If you cannot complete the record on appeal w/in the 30 day period, you can ask for an extension. What is extended is the filing, NOT the notice of the filing. You have to give the court notice within 30 days so that the court can review the record. You can only file after the court gives its approval, and sometimes the court does not decide within 30 days, and thats why you can ask for an extension to file the record on appeal. If the court doesnt approve the notice to file a record on appeal, you dont file the record on appeal. NOTE: Multiple appeals are not proceedings, can also be allowed: Rule 36 Sec 4 Rule 39 Sec 4 Rule 69 Sec 2 limited to special

What is advanced distribution? See Rule 109 Sec 2. Sec 2. Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the ct may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees upon compliance with the conditions set forth in R. 90 of these rules. Ideally distribution only happens when there are no more debts. But there are certain instances that notwithstanding certain issues that are still pending (contingent claims), distribution may be effected as long as there is a bond and as long as it will not effect matters finally adjudicated and which will entitle heirs to receive property from the estate.

What is a record on appeal? See Rule 41 Sec 6 It is a compilation of all the pleadings, evidence and REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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