Transcript
PART II.
SPECIAL PROCEEDINGS
Rules 72 – 109
(1)
Subject Matters of Special Proceedings: CATCH AGED SHARC (Rules 72 – 109)
(a)
Change of Name
(b)
Adoption
(c)
Trustees
(d)
Constitution of Family Home
(e)
Hospitalization of Insane Persons
(f)
Absence and Death, Declaration of
(g)
Guardianship and Custody of Children
(h)
Escheat
(i)
(Voluntary) Dissolution of Corporation
(j)
Settlement of Estate of Deceased Persons
(k)
Habeas Corpus
(l)
(Judicial) Approval of Voluntary Recognition of Minor Natural Children
(m) Rescission and Revocation of Adoption
(n)
Cancellation or Correction of Entries in the Civil Registry
(2) Special Proceedings is an application or proceeding to establish the status or right
of a party, or a particular fact, generally commenced by application, petition or
special form of pleading as may be provided for by the particular rule or law.
I.
SETTLEMENT OF ESTATE OF DECEASED PERSONS (Rules 73 – 91)
Settlement of Estate of Deceased Persons, Venue and Process (Rule 73)
Which court has jurisdiction
(1) If the decedent is an inhabitant of the Philippines at the time of his death, whether
a citizen of an alien, his will shall be proved, or letters of administration granted, and his
estate settled, in the RTC in the province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the RTC of any province in which he had
his estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts (Sec. 1).
(2) Under RA 7691, the law expanding the jurisdiction of the inferior courts, MTC, MeTC
and MCTC shall exercise exclusive original jurisdiction over probate proceedings,
testate and intestate, where the value of the estate does not exceed P200,000 (outside
Metro Manila) or where such estate does not exceed P400,000 (in Metro Manila).
(3)
The jurisdiction of the RTC is limited to the settlement and adjudication of
properties of the deceased and cannot extend to collateral matters.
Venue in judicial settlement of estate
(1)
The residence of the decedent at the time of his death is determinative of the
venue of the proceeding. If he was a resident (inhabitant) of the Philippines, venue is
laid exclusively in the province of his residence, the jurisdiction being vested in the
Regional Trial Court thereof. Residence means his personal, actual, or physical
habitation, his actual residence or place of abode.
(2) It is only where the decedent was a nonresident of the Philippines at the time of
his death that venue lies in any province in which he had estate, and then CFI thereof
first taking cognizance of the proceeding for settlement acquires jurisdiction to the
exclusion of other courts. The question of residence is determinative only of the venue
and does not affect the jurisdiction of the court. Hence, the institution of the
proceeding in the province wherein the decedent neither had residence nor estate
does not vitiate the action of the probate court.
(3) Where the proceedings were instituted in two courts and the question of venue is
seasonably raised, the court in which the proceeding was first filed has exclusive
jurisdiction to resolve the issue (De Borja vs. Tan, 97 Phil. 872).
Extent of jurisdiction of Probate Court
(1)
The main function of a probate court is to settle and liquidate the estates of
deceased person either summarily or through the process of administration. The RTC
acting a s a probate court exercises but limited jurisdiction, thus it has no power to take
cognizance of and determine the issue of title to property claimed by a third person
adversely to the decedent unless the claimant and all other parties have legal interest
in the property consent, expressly or impliedly, to the submission of the question to the
probate court. In that case, if the probate court allows the introduction of evidence on
ownership it is for the sole purpose of determining whether the subject properties should
be included in the inventory, which is within the probate court’s competence. The
determination is only provisional subject to a proper action at the RTC in a separate
action to resolve the title.
(2) The jurisdiction of the probate court merely relates to matters having to do with
the settlement of the estate and the probate of wills, the appointment and removal of
administrators, executors, guardians and trustees. The question of ownership is, as a rule,
an extraneous matter which the probate court cannot resolve with finality (Intestate
Estate of Ismael Reyes, Heirs of Reyes vs. Reyes, GR 139587, Nov. 2, 2000).
Powers and Duties of Probate Court
(1)
In probate proceedings, the court:
(a)
Orders the probate of the will of the decedent (Sec. 3, Rule 77);
(b)
Grants letters of administration of the party best entitled thereto or to any
qualified applicant (Sec. 5, Rule 79);
(c)
Supervises and controls all acts of administration;
(d)
Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86);
(e)
Orders payment of lawful debts (Sec. 11, Rule 88);
(f)
Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89);
(g)
Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
(h) Issue warrants and processes necessary to compel the attendance of witnesses or
to carry into effect their orders and judgments, and all other powers granted them by
law (Sec. 3, Rule 73);
(i)
If a person defies a probate order, it may issue a warrant for the apprehension
and imprisonment of such person until he performs such order or judgment, or is
released (Sec. 3, Rule 73).
(2) The court acts as trustee, and as such, should jealously guard the estate and see
to it that it is wisely and economically administered, not dissipated (Timbol vs. Cano, 111
Phil. 923).
Summary Settlement of Estates (Rule 74)
(1)
Summary settlement of estate is a judicial proceeding wherein, without the
appointment of executor or administrator, and without delay, the competent court
summarily proceeds to value the estate of the decedent; ascertain his debts and order
payment thereof; allow his will if any; declare his heirs, devisee and legatees; and
distribute his net estate among his known heirs, devisees, and legatees, who shall
thereupon be entitled to receive and enter into the possession of the parts of the estate
so awarded to them, respectively (Sec. 2).
Extrajudicial settlement by agreement between heirs, when allowed
(1) If the decedent left no will and no debts and the heirs are all of age, or the minors
are represented by their judicial or legal representatives duly authorized for the
purpose, the parties may, without securing letters of administration, divide the estate
among themselves as they see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by stipulation in a pending
action for partition, or the sole heir who adjudicates the entire estate to himself by
means of an affidavit shall file, simultaneously with and as a condition precedent to the
filing of the public instrument, or stipulation in the action for partition, or of the affidavit
in the office of the register of deeds, a bond with the said register of deeds, in an
amount equivalent to the value of the personal property involved as certified to under
oath by the parties concerned and conditioned upon the payment of any just claim
that may be filed under section 4 of this rule. It shall be presumed that the decedent left
no debts if no creditor files a petition for letters of administration within two (2) years
after the death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding
section; but no extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof (Sec. 1).
(2)
Extrajudicial partition of the estate shall be valid when the following conditions
concur:
(a)
The decedent left no will;
(b)
The decedent left no debts, or if there were debts left, all had been paid;
(c)
The heirs are all of age or if they are minors, the latter are represented by their
judicial guardian or legal representative;
(d) The partition was made by means of a public instrument or affidavit duly filed with
the Register of Deeds; and
(e)
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation.
Two-year prescriptive period
(1) It shall be presumed that the decedent left no debts if no creditor files a petition
for letters of administration within two (2) years after the death of the decedent (Sec. 1).
(2)
If it shall appear at any time within two (2) years after the settlement and
distribution of an estate in accordance with the provisions of either of the first two
sections of this rule, that an heir or other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person may compel the settlement of
the estate in the courts in the manner hereinafter provided for the purpose of satisfying
such lawful participation. And if within the same time of two (2) years, it shall appear
that there are debts outstanding against the estate which have not been paid, or that
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
such real estate shall remain charged with a liability to creditors, heirs, or other persons
for the full period of two (2) years after such distribution, notwithstanding any transfers of
real estate that may have been made (Sec. 4).
Affidavit of Self-adjudication by sole heir
(1) If there is only one heir, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds (Sec. 1).
Summary settlement of estates of small value, when allowed
(1) Whenever the gross value of the estate of a deceased person, whether he died
testate or intestate, does not exceed ten thousand pesos, and that fact is made to
appear to the Court of First Instance having jurisdiction of the estate by the petition of
an interested person and upon hearing, which shall be held not less than (1) month nor
more than three (3) months from the date of the last publication of a notice which shall
be published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to interested persons as the
court may direct, the court may proceed summarily, without the appointment of an
executor or administrator, and without delay, to grant, if proper, allowance of the will, if
any there be, to determine who are the persons legally entitled to participate in the
estate, and to apportion and divide it among them after the payment of such debts of
the estate as the court shall then find to be due; and such persons, in their own right, if
they are of lawful age and legal capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter
into the possession of the portions of the estate so awarded to them respectively. The
court shall make such order as may be just respecting the costs of the proceedings,
and all orders and judgments made or rendered in the course thereof shall be
recorded in the office of the clerk, and the order of partition or award, if it involves real
estate, shall be recorded in the proper register’s office (Sec. 2).
(2)
The court, before allowing a partition, may require the distributees, if property
other than real is to be distributed, to file a bond in an amount to be fixed by court,
conditioned for the payment of any just claim (Sec. 3).
Remedies of aggrieved parties after extra-judicial settlement of estate
(1) The creditor may ask for administration of enough property of the estate sufficient
to pay the debt, but the heirs cannot prevent such administration by paying the
obligation (McMicking vs. Sy Conbieng, 21 Phil. 211);
(2) Where the estate has been summarily settled, the unpaid creditor may, within the
two-year period, file a motion in the court wherein such summary settlement was had
for the payment of his credit. After the lapse of the two-year period, an ordinary action
may be instituted against the distributees within the statute of limitations, but not
against the bond.
(3)
The action to annul a deed of extrajudicial settlement on the ground of fraud
should be filed within four years from the discovery of the fraud (Gerona vs. De
Guzman, L-19060, May 29, 1964).
Production and Probate of Will (Rule 75)
Nature of probate proceeding
(1)
Probate of a will is a proceeding in rem. It cannot be dispensed with and
substituted by another proceeding, judicial or extrajudicial, without offending public
policy. It is mandatory as no will shall pass either real or personal property unless proved
and allowed in accordance with the Rules. It is imprescriptible, because it is required by
public policy and the state could not have intended to defeat the same by applying
thereto the statute of limitation of actions (Guevara vs. Guevara, 74 Phil. 479).
Who may petition for probate; persons entitled to notice
(1) Any executor, devisee, or legatee named in a will, or any other person interested
in the estate, may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in his possession or not, or is
lost or destroyed. The testator himself may, during his lifetime, petition the court for the
allowance of his will (Sec. 1, Rule 76).
(2)
The court shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees, and
devisees of the testator resident in the Philippines at their places of residence, and
deposited in the post office with the postage thereon prepaid at least twenty (20) days
before the hearing, if such places of residence be known. A copy of the notice must in
like manner be mailed to the person named as executor, if he be not be petitioner;
also, to any person named as co-executor not petitioning, if their places of residence
be known. Personal service of copies of the notice at least ten (10) days before the day
of hearing shall be equivalent to mailing. If the testator asks for the allowance of his
own will, notice shall be sent only to his compulsory heirs (Sec. 4, Rule 76).
Allowance or Disallowance of Will (Rule 76)
Contents of petition for allowance of will
(1) 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 (Sec. 2, Rule 76).
Grounds for disallowing a will
(1)
The will shall be disallowed in any of the following cases;
(a)
If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
(c)
If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
(e)
If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto
(Sec. 9, Rule 76).
(2)
Grounds under Art. 839, Civil Code:
(a)
If the formalities required by law have not been complied with;
(b) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
(c)
If it was executed through force or duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
(e)
If the signature of the testator was procured by fraud;
(f)
If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.
Reprobate; Requisites before will proved outside allowed in the Philippines; effects of
probate
(1) Will proved outside Philippines may be allowed here. Wills proved and allowed in
a foreign country, according to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines (Sec. 1, Rule 77).
(2)
When will allowed, and effect thereof. If it appears at the hearing that the will
should be allowed in the Philippines, the court shall so allow it, and a
certificate of its
allowance, signed by the judge, and attested by the seal of the court, to which shall be
attached a copy of the will, shall be filed and recorded by the clerk, and the will shall
have the same effect as if originally proved and allowed in such court (Sec. 3, Rule 77).
(3) When a will is thus allowed, the court shall grant letters testamentary, or letters of
administration with the will annexed, and such letters testamentary or of administration,
shall extend to all the estate of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be disposed of according
to such will, so far as such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country (Sec. 4, Rule 77).
(4) Certificate of allowance attached to proved will. To be recorded in the Office of
Register of Deeds. If the court is satisfied, upon proof taken and filed, that the will was
duly executed, and that the testator at the time of its execution was of sound and
disposing mind, and not acting under duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge, and attested by the seal of the court
shall be attached to the will and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of certificate of allowance thereof,
shall be recorded in the register of deeds of the province in which the lands lie (Sec. 13,
Rule 76).
(5) The general rule universally recognized is that administration extends only to the
assets of the decedent found within the state or country where it was granted, so that
an administrator appointed in one state or country has no power over the property in
another state or country (Leon & Ghezzi vs. Manufacturer’s Life Ins., 80 Phil. 495). When
a person dies intestate owning property in the country of his domicile as well as in
foreign country, administration shall be had in both countries. That which is granted in
the jurisdiction of the decedent’s domicile is termed the principal administration, while
any other administration is termed ancillary administration. The ancillary administration is
proper whenever a person dies leaving in a country other than that of his domicile,
property to be administered in the nature of assets of the decedent, liable for his
individual debts or to be distributed among his heirs (Johannes vs. Harvey, 43 Phil. 175).
Letters Testamentary and of Administration (Rule 78)
(1) Letters testamentary is the appointment issued by a probate court, after the will
has been admitted to probate, to the executor named in the will to administer the
estate of the deceased testator, provided the executor named in the will is competent,
accepts the trust and gives a bond (Sec. 4).
When and to whom letters of administration granted
(1) No person is competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude (Sec. 1).
(2) Executor of executor not to administer estate. The executor of an executor shall not,
as such, administer the estate of the first testator (Sec. 2).
(3) Married women may serve. A married woman may serve as executrix or
administratrix, and the marriage of a single woman shall not affect her authority so to
serve under a previous appointment (Sec. 3).
(4) Letters testamentary issued when will allowed. When a will has been proved and
allowed, the court shall issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust, and gives bond as required by
these rules (Sec. 4).
(5) Where some coexecutors disqualified others may act. When all of the executors
named in a will cannot act because of incompetency, refusal to accept the trust, or
failure to give bond, on the part of one or more of them, letters testamentary may issue
to such of them as are competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will (Sec. 5).
(6) If no executor is named in the will, or the executor or executors are incompetent,
refuse the trust, or fail to give bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for administration
or to request that administration be granted to some other person, it may be granted to
one or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select (Sec. 6).
Order of preference
(1) Priority in selecting an administrator
(a) Surviving spouse, or next of kin, or both, or person as such surviving spouse, or next
of kin, requests;
(b) One or more of the principal creditors – if such surviving spouse, or next of kin, or
the person selected, be incompetent or unwilling, or if they neglect for 30 days after the
death of the decedent to apply for administration or to request that administration be
granted to some other person, it may be granted to, if competent and willing to serve;
(c)
Such other person as the court may select.
Opposition to issuance of letters testamentary; simultaneous filing of petition for
administration
(1)
Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein executors, or any of them,
and the court, after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of administration with the
will annexed (Sec. 1, Rule 79).
Powers and duties of Executors and Administrators; restrictions on the powers (Rule 84)
(1) An executor is the person nominated by a testator to carry out the directions and
requests in his will and to dispose of his property according to his testamentary
provisions after his death (21 Am. Jur. 369).
(2)
An administrator is person appointed by the court, in accordance with the
governing statute, to administer and settle intestate estate and such testate estate as
no competent executor was designated by the testator.
(3) Executor or administrator to have access to partnership books and property. How
right enforced. The executor or administrator of the estate of a deceased partner shall
at all times have access to, and may examine and take copies of, books and papers
relating to the partnership business, and may examine and make invoices of the
property belonging to such partnership; and the surviving partner or partners, on
request, shall exhibit to him all such books, papers, and property in their hands or
control. On the written application of such executor or administrator, the court having
jurisdiction of the estate may order any such surviving partner or partners to freely
permit the exercise of the rights, and to exhibit the books, papers, and property, as in
this section provided, and may punish any partner failing to do so for contempt (Sec. 1,
Rule 84).
(4) Executor or administrator to keep buildings in repair. An executor or administrator
shall maintain in tenantable repair the houses and other structures and fences
belonging to the estate, and deliver the same in such repair to the heirs or devisees
when directed so to do by the court (Sec. 2, Rule 84).
(5) Executor or administrator to retain whole estate to pay debts, and to administer
estate not willed. An executor or administrator shall have the right to the possession and
management of the real as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and the expenses of administration (Sec. 3,
Rule 84).
(6)
An administrator of an intestate cannot exercise the right of legal redemption
over a portion of the property owned in common sold by one of the other co-owners
since this is not within the powers of administration (Caro vs. CA, 113 SCRA 10). Where
the estate of a deceased person is already the subject of a testate or intestate
proceeding, the administrator cannot enter into any transaction involving it without any
prior approval of the Court (Estate of Olave vs. Reyes, 123 SCRA 767). The right of an
executor or administrator to the possession and management of the real and personal
properties of the deceased is not absolute and can only be exercised so long as it is
necessary for the payment of the debts and expenses of administration (Manaquil vs.
Villegas, 189 SCRA 335).
Appointment of Special Administrator
(1)
When there is delay in granting letters testamentary or of administration by any
cause including an appeal from the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or
administrators appointed (Sec. 1, Rule 80).
Grounds for removal of administrator
(1) Administration revoked if will discovered. Proceedings thereupon. If after letters of
administration have been granted on the estate of a decedent as if he had died
intestate, his will is proved and allowed by the court, the letters of administration shall
be revoked and all powers thereunder cease, and the administrator shall forthwith
surrender the letters to the court, and render his account within such time as the court
directs. Proceedings for the issuance of letters testamentary or of administration under
the will shall be as hereinbefore provided (Sec. 1, Rule 82).
(2)
Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation, or removal. If an executor or administrator
neglects to render his account and settle the estate according to law, or to perform an
order or judgment of the court, or a duty expressly provided by these rules, or absconds,
or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the
court may remove him, or, in its discretion, may permit him to resign. When an executor
or administrator dies, resigns, or is removed the remaining executor or administrator may
administer the trust alone, unless the court grants letters to someone to act with him. If
there is no remaining executor or administrator, administration may be granted to any
suitable person (Sec. 2, Rule 82).
Claims Against the Estate (Rule 86)
(1) Administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. Liquidation means the determination of all the
assets of the estate and payment of all debts and expenses.
(2)
The purpose of presentation of claims against decedents of the estate in the
probate court is to protect the estate of deceased persons. That way, the executor or
administrator will be able to examine each claim and determine whether it is a proper
one which should be allowed. Further, the primary object of the provisions requiring
presentation is to apprise the administrator and the probate court of the existence of
the claim so that a proper and timely arrangement may be made for its payment in full
or by pro rata portion in the due course of the administration, inasmuch as upon the
death of a person, his entire estate is burdened with the payment of all his debts and
no creditor shall enjoy any preference or priority; all of them shall share pro rata in the
liquidation of the estate of the deceased.
Time within which claims shall be filed; exceptions
(1) In the notice provided in the preceding section, the court shall state the time for
the filing of claims against the estate, which shall not be more than twelve (12) nor less
than six (6) months after the date of the first publication of the notice. However, at any
time before an order of distribution is entered, on application of a creditor who has
failed to file his claim within the time previously limited, the court may, for cause shown
and on such terms as are equitable, allow such claim to be filed within a time not
exceeding one (1) month (Sec. 2).
Statute of Non-claims
(1) The rule requires certain creditors of a deceased person to present their claims for
examination and allowance within a specified period, the purpose thereof being 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 (Santos
vs. Manarang, 27 Phil. 213).
Claim of Executor or administrator against the Estate
(1) If the executor or administrator has a claim against the estate he represents, he
shall give notice thereof, in writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim, have the same power and be
subject to the same liability as the general administrator or executor in the settlement of
other claims. The court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim (Sec. 8).
Payment of Debts (Rule 88)
(1)
If there are sufficient properties, the debts shall be paid, thus:
(a)
All debts shall be paid in full within the time limited for the purpose (Sec. 1);
(b)
If the testator makes provision by his will, or designates the estate to be
appropriated for the payment of debts they shall be paid according to the provisions of
the will, which must be respected (Sec. 2);
(c) If the estate designated in the will is not sufficient, such part of the estate as is not
disposed of by will shall be appropriated for the purpose (Sec. 2);
(d) The personal estate not disposed of by will shall be first chargeable with payment
of debts and expenses (Sec. 3);
(e)
If the personal estate is not sufficient, or its sale would be detrimental to the
participants of the estate, the real estate not disposed of by will shall be sold or
encumbered for that purpose (Sec. 3);
(f)
Any deficiency shall be met by contributions from devisees, legatees and heirs
who have entered into possession of portions of the estate before debts and expenses
have been paid (Sec. 6);
(g)
The executor or administrator shall retain sufficient estate to pay contingent
claims when the same becomes absolute (Sec. 4).
(2)
If the estate is insolvent, the debts shall be paid in the following manner:
(a)
The executor or administrator shall pay the debts in accordance with the
preference of credits established by the Civil Code (Sec. 7);
(b)
No creditor of any one class shall receive any payment until those of the
preceding class are paid (Sec. 8);
(c)
If there are no assets sufficient to pay the credits of any one class of creditors,
each creditor within such class shall be paid a dividend in proportion to his claim (Sec.
8);
(d)
Where the deceased was a nonresident, his estate in the Philippines shall be
disposed of in such a way that creditors in the Philippines and elsewhere may receive
an equal share in proportion to their respective credits (Sec. 9);
(e) Claims duly proved against the estate of an insolvent resident of the Philippines,
the executor or administrator, having had the opportunity to contest such claims, shall e
included in the certified list of claims proved against the deceased. The owner of such
claims shall be entitled to a just distribution of the estate in accordance with the
preceding rules if the property of such deceased person in another country is likewise
equally apportioned to the creditors residing in the Philippines and other creditors,
according to their respective claims (Sec. 10);
(f)
It must be noted that the payments of debts of the decedent shall be made
pursuant to the order of the probate court (Sec. 11).
(3)
Time for paying debts and legacies fixed, or extended after notice, within what
periods. On granting letters testamentary or administration the court shall allow to the
executor or administrator a time for disposing of the estate and paying the debts and
legacies of the deceased, which shall not, in the first instance, exceed one (1) year; but
the court may, on application of the executor or administrator and after hearing on
such notice of the time and place therefor given to all persons interested as it shall
direct, extend the time as the circumstances of the estate require not exceeding six (6)
months for a single extension nor so that the whole period allowed to the original
executor or administrator shall exceed two (2) years (Sec. 15).
(4)
Applicable provisions under the Civil Code:
Art. 2241. With reference to specific movable property of the debtor, the following
claims or liens shall be preferred:
(1) Duties, taxes and fees due thereon to the State or any subdivision thereof;
(2) Claims arising from misappropriation, breach of trust, or malfeasance by public
officials committed in the performance of their duties, on the movables, money or
securities obtained by them;
(3) Claims for the unpaid price of movables sold, on said movables, so long as they are
in the possession of the debtor, up to the value of the same; and if the movable has
been resold by the debtor and the price is still unpaid, the lien may be enforced on the
price; this right is not lost by the immobilization of the thing by destination, provided it
has not lost its form, substance and identity; neither is the right lost by the sale of the
thing together with other property for a lump sum, when the price thereof can be
determined proportionally;
(4) Credits guaranteed with a pledge so long as the things pledged are in the hands of
the creditor, or those guaranteed by a chattel mortgage, upon the things pledged or
mortgaged, up to the value thereof;
(5) Credits for the making, repair, safekeeping or preservation of personal property, on
the movable thus made, repaired, kept or possessed;
(6) Claims for laborers’ wages, on the goods manufactured or the work done;
(7) For expenses of salvage, upon the goods salvaged;
(8) Credits between the landlord and the tenant, arising from the contract of tenancy
on shares, on the share of each in the fruits or harvest;
(9) Credits for transportation, upon the goods carried, for the price of the contract and
incidental expenses, until their delivery and for thirty days thereafter;
(10) Credits for lodging and supplies usually furnished to travellers by hotel keepers, on
the movables belonging to the guest as long as such movables are in the hotel, but not
for money loaned to the guests;
(11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor,
upon the fruits harvested;
(12) Credits for rent for one year, upon the personal property of the lessee existing on
the immovable leased and on the fruits of the same, but not on money or instruments of
credit;
(13) Claims in favor of the depositor if the depositary has wrongfully sold the thing
deposited, upon the price of the sale.
In the foregoing cases, if the movables to which the lien or preference attaches have
been wrongfully taken, the creditor may demand them from any possessor, within thirty
days from the unlawful seizure.
Art. 2242. With reference to specific immovable property and real rights of the debtor,
the following claims, mortgages and liens shall be preferred, and shall constitute an
encumbrance on the immovable or real right:
(1) Taxes due upon the land or building;
(2) For the unpaid price of real property sold, upon the immovable sold;
(3) Claims of laborers, masons, mechanics and other workmen, as well as of architects,
engineers and contractors, engaged in the construction, reconstruction or repair of
buildings, canals or other works, upon said buildings, canals or other works;
(4) Claims of furnishers of materials used in the construction, reconstruction, or repair of
buildings, canals or other works, upon said buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of Property, upon the real estate
mortgaged;
(6) Expenses for the preservation or improvement of real property when the law
authorizes reimbursement, upon the immovable preserved or improved;
(7) Credits annotated in the Registry of Property, in virtue of a judicial order, by
attachments or executions, upon the property affected, and only as to later credits;
(8) Claims of co-heirs for warranty in the partition of an immovable among them, upon
the real property thus divided;
(9) Claims of donors or real property for pecuniary charges or other conditions imposed
upon the donee, upon the immovable donated;
(10) Credits of insurers, upon the property insured, for the insurance premium for two
years.
Art. 2243. The claims or credits enumerated in the two preceding articles shall be
considered as mortgages or pledges of real or personal property, or liens within the
purview of legal provisions governing insolvency. Taxes mentioned in No. 1, article 2241,
and No. 1, article 2242, shall first be satisfied.
Art. 2244. With reference to other property, real and personal, of the debtor, the
following claims or credits shall be preferred in the order named:
(1) Proper funeral expenses for the debtor, or children under his or her parental authority
who have no property of their own, when approved by the court;
(2) Credits for services rendered the insolvent by employees, laborers, or household
helpers for one year preceding the commencement of the proceedings in insolvency;
(3) Expenses during the last illness of the debtor or of his or her spouse and children
under his or her parental authority, if they have no property of their own;
(4) Compensation due the laborers or their dependents under laws providing for
indemnity for damages in cases of labor accident, or illness resulting from the nature of
the employment;
(5) Credits and advancements made to the debtor for support of himself or herself, and
family, during the last year preceding the insolvency;
(6) Support during the insolvency proceedings, and for three months thereafter;
(7) Fines and civil indemnification arising from a criminal offense;
(8) Legal expenses, and expenses incurred in the administration of the insolvent’s estate
for the common interest of the creditors, when properly authorized and approved by
the court;
(9) Taxes and assessments due the national government, other than those mentioned in
articles 2241, No. 1, and 2242, No. 1;
(10) Taxes and assessments due any province, other than those referred to in articles
2241, No. 1, and 2242, No. 1;
(11) Taxes and assessments due any city or municipality, other than those indicated in
articles 2241, No. 1, and 2242, No. 1;
(12) Damages for death or personal injuries caused by a quasi-delict;
(13) Gifts due to public and private institutions of charity or beneficence;
(14) Credits which, without special privilege, appear in (a) a public instrument; or (b) in
a final judgment, if they have been the subject of litigation. These credits shall have
preference among themselves in the order of priority of the dates of the instruments
and of the judgments, respectively.
Art. 2245. Credits of any other kind or class, or by any other right or title not comprised in
the four preceding articles, shall enjoy no preference.
CHAPTER 3
ORDER OF PREFERENCE OF CREDITS
Art. 2246. Those credits which enjoy preference with respect to specific movables,
exclude all others to the extent of the value of the personal property to which the
preference refers.
Art. 2247. If there are two or more credits with respect to the same specific movable
property, they shall be satisfied pro rata, after the payment of duties, taxes and fees
due the State or any subdivision thereof.
Art. 2248. Those credits which enjoy preference in relation to specific real property or
real rights, exclude all others to the extent of the value of the immovable or real right to
which the preference refers.
Art. 2249. If there are two or more credits with respect to the same specific real property
or real rights, they shall be satisfied pro rata, after the payment of the taxes and
assessments upon the immovable property or real right.
Art. 2250. The excess, if any, after the payment of the credits which enjoy preference
with respect to specific property, real or personal, shall be added to the free property
which the debtor may have, for the payment of the other credits.
Art. 2251. Those credits which do not enjoy any preference with respect to specific
property, and those which enjoy preference, as to the amount not paid, shall be
satisfied according to the following rules:
(1) In the order established in article 2244;
(2) Common credits referred to in article 2245 shall be paid pro rata regardless of dates.
Actions by and against Executors and Administrators (Rule 87)
(1)
No action upon a claim for the recovery of money or debts or interest thereon
shall be commenced against the executor or administrator (Sec. 1).
Actions that may be brought against executors and administrators
(1)
An action to recover real or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced against the executor or
administrator (Sec. 1).
(2)
Whenever a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty shall be a
ground for disciplinary action. The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice. If no legal
representative is named by the counsel for the deceased party, or if the one so named
shall fail to appear within the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an executor or administrator for
the estate of the deceased and the latter shall immediately appear for and on behalf
of the deceased. The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs (Sec. 16, Rule 3).
(3) When the action is for recovery of money arising from contract, express or implied,
and the defendant dies before entry of final judgment in the court in which the action
was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the manner especially provided in these Rules
for prosecuting claims against the estate of a deceased person (Sec. 20, Rule 3).
Requisites before creditor may bring an action for recovery of property fraudulently
conveyed by the
deceased
(1) For the creditor to file and action to recover property fraudulently conveyed by
the deceased, the following requisites must be present:
(a) There is a deficiency of assets in the hands of an executor or administrator for the
payment of debts and expenses of administration;
(b)
The deceased in his lifetime had made or attempted to make a fraudulent
conveyance of his real or personal property, or a right or interest therein, or a debt or
credit, with intent to defraud his creditors or to avoid any right, debt or duty; or had so
conveyed such property, right, debt, or credit that by law the conveyance would be
void as against his creditors;
(c) The subject of the attempted conveyance would be liable to attachment by any
of them in his lifetime;
(d)
The executor or administrator has shown to have no desire to file the action or
failed to institute the same within a reasonable time;
(e)
Leave is granted by the court to the creditor to file the action;
(f)
A bond is filed by the creditor as prescribed in the Rules;
(g)
10).
The action by the creditor is in the name of the executor or administrator (Sec.
Distribution and Partition (Rule 90)
(1) Before there could be a distribution of the estate, the following two stages must
be followed:
(a) Payment of obligations (liquidation of estate) – under the Rules, the distribution of
a decedent’s assets may only be ordered under any of the following three
circumstances: (1) when the inheritance tax, among other is paid; (2) when a sufficient
bond is given to meet the payment of the inheritance tax and all other obligations; and
(3) when the payment of the said tax and all other obligations has been provided for;
and
(b) Declaration of heirs – there must first be declaration of heirs to determine to whom
the residue of the estate should e distributed. A separate action for the declaration of
heirs is not proper. And likewise after, not before the declaration of heirs is made may
the residue be distributed and delivered to the heirs.
(2)
The settlement of a decedent’s estate is a proceeding in rem which is binding
against the whole world. All persons having interest in the subject matter involved,
whether they were notified or not, are equally bound.
Liquidation
Sec. 1. When order for distribution of residue made. When the debts, funeral charges,
and expenses of administration, the allowance to the widow, and inheritance tax, if
any, chargeable to the estate in accordance with law, have been paid, the court, on
the application of the executor or administrator, or of a person interested in the estate,
and after hearing upon notice, 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, and such person may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If there
is a controversy before the court as to who are the lawful heirs of the deceased person
or as to the distributive shares to which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributees, or any of them, give
a bond, in a sum to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
Sec. 2. Questions as to advancement to be determined. Questions as to advancement
made, or alleged to have been made, by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate proceedings; and the final
order of the court thereon shall be binding on the person raising the questions and on
the heir.
Sec. 3. By whom expenses of partition paid. If at the time of the distribution the executor
or administrator has retained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties distributed, such expenses of
partition may be paid by such executor or administrator when it appears equitable to
the court and not inconsistent with the intention of the testator; otherwise, they shall be
paid by the parties in proportion to their respective shares or interest in the premises,
and the apportionment shall be settled and allowed by the court, and, if any person
interested in the partition does not pay his proportion or share, the court may issue an
execution in the name of the executor or administrator against the party not paying for
the sum assessed.
Project of Partition
(1)
Project of partition is a document prepared by the executor or administrator
setting forth the manner in which the estate of the deceased is to be distributed among
the heirs. If the estate is a testate estate, the project of partition must conform to the
terms of the will; if intestate, the project of partition must be in accordance with the
provisions of the Civil Code (Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629).
Remedy of an heir entitled to residue but not given his share
(1)
If there is a controversy before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to which each person is entitled under
the law, the controversy shall be heard and decided as in ordinary cases (Sec. 1).
(2) The better practice for the heir who has not received his share is to demand his
share through a proper motion in the same probate or administration proceedings, or
for reopening of the probate or administrative proceedings if it had already been
closed, and not through an independent action, which would be tried by another court
or judge (Ramos vs. Octuzar, 89 Phil. 730).
(3) It has been held that an order which determines the distributive share of the heirs
of a deceased person is appealable. If not appealed within the reglementary period, it
becomes final (Imperial vs. Muñoz, 58 SCRA).
(4) The Court allowed the continuation of a separate action to annul the project of
partition by a preterited heir, since the estate proceedings have been closed and
terminated for over three years (Guilas vs. Judge of the CFI of Pampanga, 43 SCRA
117), and on the ground of lesion, preterition and fraud (Solivio vs. CA, 99 Phil. 1069).
Instances when probate court may issue writ of execution
(1) The only instances when the probate court may issue a writ of execution are as
follows:
(a) To satisfy the contributive shares of devisees, legatees and heirs in possession of
the decedent’s assets (Sec. 6, Rule 88);
(b)
To enforce payment of expenses of partition (Sec. 3, Rule 90); and
(c) To satisfy the costs when a person is cited for examination in probate proceedings
(Sec. 13, Rule 132).
1. II.
GENERAL GUARDIANS AND GUARDIANSHIP
Trustees (Rule 98)
Distinguished from executor/administrator
Conditions of the Bond
(1) A trustee appointed by the court is required to furnish a bond and the terms of the
trust or a statute may provide that a trustee appointed by a court shall be required to
furnish a bond in order to qualify him to administer the trust (54 Am. Jur. 425). However,
the court may until further order exempt a trustee under a will from giving a bond when
the testator has directed or requested such exemption or when all persons beneficially
interested in the trust, being of full age, request the exemption. Such exemption may be
cancelled by the court at any time, and the trustee required to forthwith file a bond
(Sec. 5). If the trustee fails to furnish a bond as required by the court, he fails to qualify
as such. Nonetheless the trust is not defeated by such a failure to give bond.
(2)
The following conditions shall be deemed to be a part of the bond whether
written therein or not:
(a) That the trustee will make and return to the court, at such time as it may order, a
true inventory of all the real and personal estate belonging to him as trustee, which at
the time of the making of such inventory shall have come to his possession or
knowledge;
(b) That he will manage and dispose of all such estate, and faithfully discharge his trust
in relation thereto, according to law and the will of the testator or the provisions of the
instrument or order under which he is appointed;
(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he
is excused therefrom in any year by the court, a true account of the property in his
hands and of the management and disposition thereof, and will render such other
accounts as the court may order;
(d) That at the expiration of his trust he will settle his accounts in court and pay over
and deliver all the estate remaining in his hands, or due from him on such settlement, to
the person or persons entitled thereto.
But when the trustee is appointed as a successor to a prior trustee, the court may
dispense with the making and return of an inventory, if one has already been filed, and
in such case the condition of the bond shall be deemed to be altered accordingly
(Sec. 6).
Requisites for the removal and resignation of a trustee
(1)
A trustee may be removed upon petition to the proper RTC of the parties
beneficially interested, after due notice to the trustee and hearing, if it appears
essential in the interests of the petitioners. The court may also, after due notice to all
persons interested, remove a trustee who is insane or otherwise incapable of
discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by
the court or under a written instrument, may resign his trust if it appears to the court
proper to allow such resignation (Sec. 8).
(2)
A trustee whose acts or omissions are such as to show a want of reasonable
fidelity will be removed by the court and where trust funds are to be invested by the
trustee, neglect to invest constitutes of itself a breach of trust, and is a ground for
removal (Gisborn vs. CAvende, 114 US 464).
Grounds for removal and resignation of a trustee
(1)
The proper Regional Trial Court may, upon petition of the parties beneficially
interested and after due notice to the trustee and hearing, remove a trustee if such
removal appears essential in the interests of the petitioners. The court may also, after
due notice to all persons interested, remove a trustee who is insane or otherwise
incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether
appointed by the court or under a written instrument, may resign his trust if it appears to
the court proper to allow such resignation (Sec. 8).
(2)
A trustee whose acts or omissions are such as to show a want of reasonable
fidelity will be removed by the court and where trust funds are to be invested by the
trustee, neglect to invest constitutes of itself a breach of trust, and is a ground for
removal (Gisborn vs. CAvende, 114 US 464).
Extent of authority of trustee
(1) A trustee appointed by the RTC shall have the same rights, powers, and duties as if
he had been appointed by the testator. No person succeeding to a trust as executor or
administrator of a former trustee shall be required to accept such trust (Sec. 2).
(2) Such new trustee shall have and exercise the same powers, rights, and duties as if
he had been originally appointed, and the trust estate shall vest in him in like manner as
it had vested or would have vested, in the trustee in whose place he is substituted; and
the court may order such conveyance to be made by the former trustee or his
representatives, or by the other remaining trustees, as may be necessary or proper to
vest the trust estate in the new trustee, either alone or jointly with the others (Sec. 3).
Escheat (Rule 91)
(1) Escheat is a proceeding whereby the real and personal property of a deceased
person in the Philippines, become the property of the state upon his death, without
leaving any will or legal heirs (21 CJS, Sec. 1, p. 848).
When to file
(1) When a person dies intestate, seized of real or personal property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor General or his
representative in behalf of the Republic of the Philippines, may file a petition in the
Court of First Instance of the province where the deceased last resided or in which he
had estate, if he resided out of the Philippines, setting forth the facts, and praying that
the estate of the deceased be declared escheated (Sec. 1).
Requisites for filing of petition
(1) In order that a proceeding for escheat may prosper, the following requisites must
be present:
(a)
That a person died intestate;
(b)
That he left no heirs or person by law entitled to the same; and
(c) That the deceased left properties (City of Manila vs. Archbishop of Manila, 36 Phil.
815).
Remedy of respondent against petition; period for filing a claim
(1) When a petition for escheat does not state facts which entitle the petitioner to the
remedy prayed for, and even admitting them hypothetically, it is clear that there is no
ground for the court to proceed to the inquisition provided by law, an interested party
should not be disallowed from filing a motion to dismiss the petition which is untenable
from all standpoints. And when the motion to dismiss is entertained upon this ground,
the petition may be dismissed unconditionally and the petitioner is not entitled to be
afforded an opportunity to amend his petition (Go Poco Grocery vs. Pacific Biscuit Co.,
65 Phil. 443).
(2) While the Rules do not in fact authorize the filing of a motion to dismiss the petition
presented for that purpose, and the Rules permitting the interposition of a motion to
dismiss to the complaint and answer, respectively, are not applicable to special
proceedings, nevertheless, there is no reason of a procedural nature which prevents
the filing of a motion to dismiss based upon any of the grounds provided for by law for a
motion to dismiss the complaint. In such a case, the motion to dismiss plays the role of a
demurrer and the court should resolve the legal questions raised therein (Municipal
Council of San Pedro, Laugna vs. Colegio de San Jose, 65 Phil. 318).
Guardianship (Rules 92 – 97)
(1) Guardianship is 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
(Cyclopedic Law Dictionary, 908). Guardianship may also describe the relation
subsisting between the guardian and the ward. It involves the taking of possession of an
management of, the estate of another unable to act for himself.
(2) A guardian is a person lawfully invested with power and charged with the duty of
taking care of a person who for some peculiarity or status or defect of age,
understanding or self-control is considered incapable of administering his own affairs
(Black’s Law Dictionary, Fifth Editoin).
(3)
Kinds of guardians:
(a)
According to scope or exent
a)
Guardian of the person – one who has been lawfully invested with the care of the
person of minor whose father is dead. His authority is derived out of that of the parent;
b)
Guardian of the property – that appointed by the court to have the
management of the estate of a minor or incompetent person;
c)
General guardians – those appointed by the court to have the care and custody
of the person and of all the property of the ward.
(b)
According to constitution
1)
Legal – those deemed as guardians without need of a court appointment (Art.
225, Family Court);
2)
Guardian ad litem – those appointed by courts of justice to prosecute or defend
a minor, insane or person declared to be incompetent, in an action in court; and
3)
Judicial – those who are appointed by the court in pursuance to law, as guardian
for insane persons, prodigals, minor heirs or deceased was veterans and other
incompetent persons.
(4) Under the Family Courts Act of 1997 (RA 8369), the Family Courts are vested with
exclusive original jurisdiction over the following cases:
(a) Criminal case where one or more of the accused is below 18 years of age but less
than 9 years of age, or where one or more of the victims is a minor at the time of the
commission of the offense;
(b)
Petitions for guardianship, custody of children, habeas corpus in relation to the
latter;
(c)
Petitions for adoption of children and the revocation thereof;
(d)
Complaints for annulment of marriage, declaration of nullity of marriage and
those relating to marital status and property relations of husband and wife or those
living together under different status and agreements, and petitions for dissolution of
conjugal partnership of gains;
(e)
Actions for support and acknowledgment;
(f)
Summary judicial proceedings brought under the provisions of EO 209, the Family
Code;
(g)
Petitions for declaration of status of children as abandoned, dependent or
neglected children, petitions for voluntary or involuntary commitment of children; the
suspension, termination, or restoration of parental authority and other cases cognizable
under PD 603, EO 56 (s. 1986), and other related laws;
(h)
Petitions for the constitution of family home;
(i)
Cases against minors cognizable under the Dangerous Drugs Act, as amended;
(j)
Violations of RA 7610, the Anti-Child Abuse Law, as amended by RA 7658;
(k)
Cases of domestic violence against women and children;
General powers and duties of guardians (Rule 96)
(1)
The powers and duties of a guardian are:
(a) To have care and custody over the person of his ward, and/or the management
of his estate (Sec. 1);
(b)
To pay the just debts of his ward out of the latter’s estate (Sec. 2);
(c) To bring or defend suits in behalf of the ward, and, with the approval of the court,
compound for debts due the ward and give discharges to the debtor (Sec. 3);
(d)
To manage the estate frugally and without waste, and apply the income and
profits to the comfortable and suitable maintenance of the ward and his family (Sec. 4);
(e) To sell or encumber the real estate of the ward upon being authorized to do so
(Sec. 4);
(f)
To join in an assent to a partition of real or personal estate held by the ward jointly
or in common with others (Sec. 5).
Conditions of the bond of the guardian
(1)
Under Sec. 1, Rule 94, the conditions for the bond of a guardian are:
(a)
To file with the court complete inventory of the estate of the ward within 3
months;
(b) To faithfully execute the duties of his trust to manage and dispose of the estate
according to the Rules for the best interests of the ward, and to provide for the proper
use, custody, and education of the ward;
(c)
To render a true account of all the estate, and of the management and
disposition of the same;
(d) To settle his accounts with the court and deliver over all the estate remaining in his
hands to the person entitled thereto;
(e) To perform all orders of the court by him to be performed (Sec. 1; Sec. 14, AM 0302-05-SC).
Rule on Guardianship over Minors (AM 03-02-05-SC)
(1)
The father and mother shall jointly exercise legal guardianship over the person
and property of their unemancipated common child without the necessity of a court
appointment. The Rule shall be suppletory to the provisions of the Family Code on
guardianship (Sec. 1).
(2) On grounds authorized by law, any relative or other person on behalf of a minor,
or the minor himself if 14 years of age or over, may petition the Family Court for the
appointment of a general guardian over the person or property, or both, of such minor.
The petition may also be filed by the Secretary of DSWD and of the DOH in the case of
an insane minor who needs to be hospitalized (Sec. 1).
(3)
Grounds of petition (Sec. 4):
(a)
Death, continued absence, or incapacity of his parents;
(b)
Suspension, deprivation or termination of parental authority;
(c)
Remarriage of his surviving parent, if the latter is found unsuitable to exercise
parental authority; or
(d)
When the best interest of the minor so require.
(4)
Qualifications of guardians (Sec. 4);
(a)
Moral character;
(b)
Physical, mental and psychological condition;
(c)
Financial status;
(d)
Relationship of trust with the minor;
(e) Availability to exercise the powers and duties of a guardian for the full period of
the guardianship;
(f)
Lack of conflict of interest with the minor; and
(g)
Ability to manage the property of the minor.
(5)
Order of preference in the appointment of guardian or the person and/or
property of minor (Sec. 6):
(a)
The surviving grandparent and in case several grandparents survive, the court
shall select any of them taking into account all relevant considerations;
(b)
The oldest brother or sister of the minor over 21 years of age, unless unfit or
disqualified;
(c) The actual custodian of the minor over 21 years of age, unless unfit or disqualified;
and
(d) Any other person, who in the sound discretion of the court, would serve the best
interests of the minor.
(6)
Factors to consider in determining custody:
(a)
Any extrajudicial agreement which the parties may have bound themselves to
comply with respecting the rights of the minor to maintain direct contact with the noncustodial parent on a regular basis, except when there is an existing threat or danger of
physical, mental, sexual or emotional violence which endangers the safety and best
interests of the minor;
(b)
The desire and ability of one parent to foster an open and loving relationship
between the minor and the other parent;
(c)
The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has
had any filial relationship with the minor, including anyone courting the parent;
(e)
The nature and frequency of contact with both parents;
(f)
Habitual use of alcohol, dangerous drugs or regulated substances;
(g)
Marital misconduct;
(h)
The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor; and
(i)
The preference of the minor over 7 years of age and of sufficient discernment,
unless the parent chosen is unfit (Sec. 14, AM No. 03-04-04-SC).
(7) The 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.
Adoption (Rules 99-100, superseded by AM 02-6-02-SC)
(1)
Adoption is a juridical act which creates between two persons a relationship
similar to that which results from legitimate paternity (Prasnick vs. Republic, 98 Phil. 669).
(2) Adoption is a juridical act, a proceeding in rem, which creates between the two
persons a relationship similar to that which results from legitimate paternity and filiation.
(3)
Adoption is not an adversarial proceeding. An adversarial proceeding is one
having opposing parties, contested, as distinguished from an ex parte application, one
of which the party seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it excludes an adoption proceeding. In
adoption, there is no particular defendant to speak of since the proceeding involves
the status of a person it being an action in rem.
Distinguish domestic adoption from inter-country adoption
Domestic Adoption
Inter-Country Adoption
Governed by RA 8552, the Domestic
Governed by RA 8043, the Inter-Country
Adoption Act of 1998; procedure governed Adoption Act of 1995; procedure governed
by AM No. 02-06-02-SC, Aug. 22, 2002.
by the Amended Implementing Rules and
Regulations on ICAA.
Applies to domestic adoption of Filipino
Applies to adoption of a Filipino child in a
children, where the entire adoption process foreign country, where the petition for
beginning from the filing of the petition up adoption is filed, the supervised trial
to the issuance of the adoption decree
custody is undertaken and the decree of
takes place in the Philippines.
adoption is issued outside of the Philippines.
Who may be adopted
Who may be adopted
A child legally available for
Only a legally free child may be
adoption.Requisites:
adopted.Requisites:
a)
Below 18 years of age; and
b)
Judicially declared available for
adoption.
a) Below 15 years of age; and
b) Has been voluntarily or involuntarily
committed to the DSWD in accordance
with PD 603.
Exceptions:
a)
Legitimate son/daughter of one
spouse by the other spouse;
b)
Illegitimate son/daughter by a
qualified adopter;
c)
Person of legal age if, prior to the
adoption said person has been consistently
considered and treated by the adopter/s
as his/her own child since minority.
Who may adopt
1. Filipino Citizens
1)
Of legal age;
Who may adopt
1. Filipino Citizens
1)
Permanent resident of a foreign
country;
2)
In possession of full civil capacity and
legal rights;
2)
Has the capacity to act and assume
all rights and responsibilities of parental
authority under Philippine laws;
3)
Of good moral character;
Has undergone the appropriate
4)
Has not been convicted of any crime 3)
counseling from an accredited counselor in
involving moral turpitude;
country of domicile;
5)
Emotionally and psychologically
4)
Has not been convicted of a crime
capable of caring for children;
involving moral turpitude;
6)
In a position to support and care for
Eligible to adopt under Philippine
his/her children in keeping with the means 5)
laws;
of the family;
6)
In a position to provide the proper
7)
At least 16 years older than the
adoptee but this latter requirement may be care and support and to give the
waived if (a) the adopter is the biological necessary moral values and example to all
parent of the adoptee; or (b) the adopter his children, including the child to be
is the spouse of the adoptee’s parent; and adopted;
Agrees to uphold the basic rights of
Permanent resident of the Philippines. 7)
the child as embodied under Philippine
laws, the UN Convention on Rights of the
1. Aliens
Child, and to abide by the rules and
1)
Same qualifications as above, and in regulations issued to implement the
provisions of the ICAA;
addition:
8)
2)
His/her country has diplomatic
relations with the Republic of the
8)
Residing in a country with whom the
Philippines has diplomatic relations and
Philippines;
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed in that country;
3)
His/her government allows the
adoptee to enter his/her country as his/her
adopted son/daughter;
9)
Possesses all the qualifications and
none of the disqualifications provided in
4)
Has been living in the Philippines for the ICAA and in other applicable Philippine
at least 3 continuous years prior to the filing laws;
of the application for adoption and
maintains such residence until the adoption 10) At least 27 years of age at the time of
decree is entered; and
the application; and
5)
Has been certified by his/her
diplomatic or consular office or any
appropriate government agency that
he/she has the legal capacity to adopt in
his/her country. This requirement may be
waived if (a) a former Filipino citizens seeks
to adopt a relative within the 4th degree of
consanguinity or affinity; (b) one seeks to
adopt the legitimate son/daughter of
his/her Filipino spouse; (c) one who is
married to a Filipino citizen and seeks to
adopt a relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse.
11) At least 16 years older than the child to
be adopted at the time of application,
unless (a) adopted is the parent by nature
of the child to be adopted; or (b) adopter
is the spouse of the parent by nature of the
child to be adopted.
1. Aliens
1)
At least 27 years of age at the time of
the application;
2)
At least 16 years older than the child
to be adopted at the time of application
unless the adopter is the parent by nature
of the child to be adopted or the spouse of
such parent;
3)
Has the capacity to act and assume
all rights and responsibilities of parental
authority under his national laws;
4)
Has undergone the appropriate
counseling from an accredited counselor in
his/her country;
5)
Has not been convicted of a crime
involving moral turpitude;
6)
Eligible to adopt under his/her
national law;
7)
In a position to provide the proper
care and support and to give the
necessary moral values and example to all
his children, including the child to be
adopted;
8)
Agrees to uphold the basic rights of
the child as embodied under Philippine
laws, the UN Convention on the Rights of
the Child, and to abide by the rules and
regulations issued to implement the
provisions of the ICAA;
9)
Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed under his/her
national laws; and
10) Possesses all the qualifications and
none of the disqualifications provided in
the ICAA and in other applicable Philippine
laws.
Requirement of Joint Adoption by Spouses Requirement of Joint Adoption by Spouses
General rule: husband and wife shall jointly Rule: if the adopter is married, his/her
adopt; otherwise, the adoption shall not be spouse must jointly file for the adoption.
allowed.Exceptions:
1)
If one spouse seeks to adopt the
legitimate son/daughter of the other;
2)
If one spouse seeks to adopt his/her
own illegitimate son/daughter but the other
spouse must give his/her consent;
3)
If the spouses are legally separated
from each other.
Procedure
Where to file application: In the Family
Court of the province or city where the
prospective parents reside.After filing: The
petition shall not be set for hearing without
a case study report by a licensed social
worker.
Supervised Trial Custody:
Procedure
Where to file application: Either in (a)
Family Court having jurisdiction over the
place where the child resides or may be
found, or (b) Inter-Country Adoption Board
(ICAB) through an intermediate agency,
whether governmental or an authorized
and accredited agency, in the country of
the prospective adoptive parents.After
filing: (a) if filed in the FC, court determines
sufficiency of petition in respect to form
and substance, after which, petition is
a)
Temporary parental authority is
vested in prospective adopter;
b)
Period is at least 6 months, but may
be reduced by the court motu propio or
upon motion;
transmitted to ICAB; (b) if petition is already
with ICAB, it conducts matching of the
applicant with an adoptive child; (c) after
matchmaking, the child is personally
fetched by the applicant for the trial
custody which takes place outside of the
Philippines.
c)
If adopter is alien, the law
mandatorily requires completion of the 6month trial custody and may not be
reduced, except if: (1) a former Filipino
Supervised Trial Custody:
citizen seeks to adopt a relative within 4th
degree of consanguinity or affinity; (2) one a)
This process takes place outside of
seeks to adopt the legitimate son/daughter the country and under the supervision of
of his/her Filipino spouse; (3) one who is
the foreign adoption agency;
married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative b)
For a period of 6 months;
within the 4th degree of consanguinity or
affinity of the Filipino spouse.
c)
If unsuccessful, ICAB shall look for
another prospective applicant.
Repatriation of the child is to be resorted
only as a last resort;
Decree of Adoption: Issued by Philippine
Family Court.
d)
If successful, ICAB transmits a written
consent for the adoption to be executed
Consent Required: Written consent of the by the DSWD, and the applicant then files a
following to the adoption is required, in the petition for adoption in his/her country.
form of affidavit: (1) adoptee, if 10 years of
age or over; (2) biological parent/s of the Decree of Adoption: Issued by a foreign
child, if known, or the legal guardian, or the court.
proper government instrumentality which
has legal custody of the child; (3)
Consent Required:
legitimate and adopted sons or daughters,
10 years of age or over, of the adopter/s
(1) Written consent of biological or
and adoptee, if any; (4) illegitimate
adopted children above 10 years of age, in
sons/daughters, 10 years of age of over, of the form of sworn statement is required to
the adopter if living with said adopter and be attached to the application to be filed
the latter’s spouse, if any; (5) spouse, if any, with the FC or ICAB;
of the person adopting or to be adopted.
(2) If a satisfactory pre-adoptive
relationship is formed between the
applicant and the child, the written
consent to the adoption executed by the
DSWD is required.
Domestic Adoption Act (RA 8552; AM 02-06-02-SC)
Effects of adoption
(1) Transfer of parental authority – except in cases where the biological parent is the
spouse of the adopter, the parental authority of the biological parents shall terminate
and the same shall be vested in the adopters (Sec. 16).
(2) Legitimacy – the adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born to them without
discrimination of any kind (Sec. 17).
(3)
Successional rights
(a)
In legal and intestate succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation (Sec. 18);
(b) However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern (Sec. 18);
(c)
Art. 18(3) of the Family Code and Sec. 18, Art V of RA 8552 provide that the
adoptee remains an intestate heir of his/her biological parent (Obiter Dictum in In re In
the Matter of Adoption of Stephanie Naty Astorga Garcia, 454 SCRA 541).
(4)
Issuance of new certificate and first name and surname of adoptee
(a) The adoption decree shall state the name by which the child is to be known (Sec.
13). An amended certificate of birth shall be issued by the Civil Registry attesting to the
fact that the adoptee is the child of the adopter(s) by being registered with his/her
surname (Sec. 14);
(b) The original certificate of birth shall be stamped “cancelled” with the annotation
of the issuance of an amended birth certificate in its place and shall be sealed in the
civil registry records. The new birth certificate to be issued to the adoptee shall not bear
any notation that it is an amended issue (Sec. 14);
(c)
All records, books, and papers relating to the adoption cases in the files of the
court, the DSWD, or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential and the court may order its release under
the following conditions only: (1) the disclosure of the information to a third person is
necessary for purposes connected with or arising out of the adoption; (2) the disclosure
will be for the best interest of the adoptee; and (3) the court may restrict the purposes
for which it may be used (Sec. 15).
Instances when adoption may be rescinded
(1)
Grounds for rescission:
(a)
Repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
(b)
Attempt on the life of the adoptee;
(c)
Sexual assault or violence; or
(d)
Abandonment and failure to comply with parental obligations (Sec. 19).
(2)
Prescriptive period:
(a)
If incapacitated – within five (5) years after he reaches the age of majority;
(b) If incompetent at the time of the adoption – within five (5) years after recovery
from such incompetency (Sec. 21, Rule on Adoption).
Effects of rescission of adoption
(1)
Parental authority of the adoptee’s biological parent(s), if known, or the legal
custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated;
(2)
Reciprocal rights and obligations of the adopter(s) and the adoptee to each
other shall be extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and restoration
of his/her original birth certificate; and
(4) Succession rights shall revert to its status prior to adoption, but only as of the date
of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall
be respected (Sec. 20).
Inter-Country Adoption (RA 8043)
(1) Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently residing abroad where the petition is
filed, the supervised trial custody is undertaken, and the decree of adoption is issued in
the Philippines (Sec. 3[a]).
When allowed
(1) Inter-country adoptions are allowed when the same shall prove beneficial to the
child’s best interests, and shall serve and protect his/her fundamental rights (Sec. 2).
(2) It is allowed when all the requirements and standards set forth under RA 8043 are
complied with.
Functions of the RTC
(1)
An application to adopt a Filipino child shall be filed either with the Philippine
Regional Trial Court having jurisdiction over the child, or with the Board, through an
intermediate agency, whether governmental or an authorized and accredited
agency, in the country of the prospective adoptive parents, which application shall be
in accordance with the requirements as set forth in the implementing rules and
regulations (Sec. 10).
“Best Interest of the Minor” Standard
(1) In case of custody cases of minor children, the court after hearing and bearing in
mind the best interest of the minor, shall award the custody as will be for the minor’s
best interests.
(2)
The totality of the circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the minor and most encouraging to his
physical, psychological and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development of the
minor.
Writ of Habeas Corpus (Rule 102)
(1)
Writ of habeas corpus is a writ which has been esteemed to the best and only
sufficient defense of personal freedom having for its object the speedy release by
judicial decree of persons who are illegally restrained of their liberty, or illegally
detained from the control of those who are entitled to their custody (Ballentine’s Law
Dictionary, 2nd Edition; Nava vs. Gatmaitan, 90 Phil. 172).
(2)
The writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody
of any person is withheld from the person entitled thereto. The function of the special
proceeding of habeas corpus is to inquire into the legality of one’s detention. In all
petitions for habeas corpus, the court must inquire into every phase and aspect of the
petitioner’s detention from the moment petitioner was taken into custody up to the
moment the court passes upon the merits of the petition and only after such scrutiny
can the court satisfy itself that the due process clause of the Constitution has been
satisfied. However, once the person detained is duly charged in court, he may no
longer question his detention by a petition for the issuance of a writ of habeas corpus.
His remedy then is the quashal of the information and/or the warrant of arrest duly
issued. The reason for the issuance of the writ even becomes more unavailing when the
person detained files a bond for his temporary release (Sec. 1; Bernarte vs. CA, 75 SCAD
400 [Oct. 18, 1996]).
(3)
Habeas corpus may not be used as a means of obtaining evidence on the
whereabouts of a person, or as a means of finding out who has specifically abducted
or caused the disappearance of a certain person (Martinez vs. Dir. Gen. Mendoza, GR
153795, Aug. 17, 2006).
(4) The writs of habeas corpus and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of the higher courts. A writ of habeas
corpus reaches the body and the jurisdictional matters, but not the record. A writ of
certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be
used with the writ of certiorari for the purpose of review (Galvez vs. CA, 237 SCRA 685).
(5)
The general rule is that the release, whether permanent or temporary, of a
detained person renders the petition for habeas corpus moot and academic, unless
there are restraints attached to his release which precludes freedom of action, in which
case the Court can still inquire into the nature of his involuntary restraint. Petitioner’s
temporary release does not render the petition for writ moot and academic
(Villavicencio vs. Lukban, 39 Phil. 778).
(6)
Some instances when the writ may issue:
(a) To inquire into the legality of an order of confinement by a court martial (Ogvir vs.
Dir. of Prisons, 80 Phil. 401);
(b)
To test the legality of an alien’s confinement and proposed expulsion from the
Philippines (Lao Tang Bun vs. Fabre, 81 Phil. 682);
(c) To enable parents to regain custody of a minor child, even if the latter be in the
custody of a third person of her own free will (Salvaña vs. Gaela, 55 Phil. 680);
(d)
To obtain freedom for an accused confined for failure to post bail where the
prosecuting officer unreasonably delays trial by continued postponement (Conde vs.
Rivera, 45 Phil. 650);
(e) To give retroactive effect to a penal provision favorable to the accused when the
trial judge has lost jurisdiction by virtue of the finality of the judgment of conviction
(Rodriguez vs. Dir. of Prisons, 57 Phil. 133);
(f)
To determine the constitutionality of a statute (People vs. Vera, 65 Phil. 66);
(g) To permit an alien to land in the Philippines (The Huan vs. Collector of Customs, 54
Phil. 129);
(h) To put an end to an immoral situation, as when a minor girl, although preferring to
stay with her employer, maintains illicit relationship with him (Macazo vs. Nuñez, L-12772,
Jan. 24, 1956);
(i)
When a bond given by an accused entitled thereto is not admitted or excessive
bail is required of him (In re Dick, 38 Phil. 41);
(j)
To determine the legality of an extradition (US vs. Rauscher, 119 US 407);
(k) To determine the legality of the action of a legislative body in punishing a citizen
for contempt (Lopez vs. Delos Reyes, 55 Phil. 170);
(l)
To obtain freedom after serving minimum sentence when the penalty under an
old law has been reduced by an amendatory law.
Contents of the petition
(1) Application for the writ shall be by petition signed and verified either 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 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 (Sec. 3).
Contents of the Return
(1) When the person to be produced is imprisoned or restrained by an officer, the
person who makes the return shall state therein, 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, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or power, or under restraint;
(b) If he has the party in his custody or power, or under restraint, the authority and the
true and whole cause thereof, set forth at large, 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 or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by reason of
which he cannot, without danger, be brought before the court or judge;
(d) If he has had the party in his custody or power, or under restraint, 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 (Sec. 10).
Distinguish peremptory writ from preliminary citation
Peremptory writ
Preliminary citation
Unconditionally commands the respondent Requires the respondent to appear and
to have the body of the detained person show cause why the peremptory writ
before the court at a time and place
should not be granted
therein specified;
(Lee Yick Hon vs. Collector of Customs, 41
Phil. 563)
When not proper/applicable
(1)
Instances when the writ of habeas corpus is not proper are:
(a)
For asserting or vindicating denial of right to bail (Galvez vs. CA, 237 SCRA 685);
(b) For correcting errors in appreciation of facts or appreciation of law – where the
trial court had no jurisdiction over the cause, over the person of the accused, and to
impose the penalty provided for by law, the mistake committed by the trial court, in the
appreciation of the facts and/or in the appreciation of the law cannot be corrected by
habeas corpus (Sotto vs. Director of Prisons, May 30, 1962);
(c) Once a person detained is duly charged in court, he may no longer file a petition
for habeas corpus. His remedy would be to quash the information or warrant (Rodriguez
vs. Judge Bonifacio, Nov. 26, 2000).
When writ disallowed/discharged
(1) If it appears that the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment, or order. Nor shall anything
in this rule be held to authorize the discharge of a person charged with or convicted of
an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment (Sec. 4).
Distinguish from writ of Amparo and Habeas Data
Writ of Habeas Corpus
A remedy available to any
person, it covers cases of
illegal confinement or
detention by which any
person is deprived of his
liberty, or by which the
rightful custody of any
person is withheld from the
person entitled thereto.
Writ of Amparo
Writ of Habeas Data
A remedy available to any A remedy available to any
person whose right to life,
person whose right to
liberty and security is violated privacy in life, liberty or
or threatened with violation security is violated or
by an unlawful act or
threatened by an unlawful
omission of a public official act or omission of a public
or employee, or of a private official or employee, or of a
individual or entity. The writ private individual or entity
covers extrajudicial killings
engaged in the gathering,
and enforced
collecting or storing of data
disappearances or threats
or information regarding the
thereof.
person, family, home and
correspondence of the
aggrieved party.
Who may file petition:By the Who may file (in
Who may file (in
party for whose relief it is
order):a) Any member of order):a) Any member of
intended, or by some person the immediate family:
the immediate family:
on his behalf.
spouse, children and parents spouse, children and parents
of the aggrieved party;
of the aggrieved party;
b) Any ascendant,
descendant or collateral
relative of aggrieved party
within the 4th civil degree of
consanguinity or affinity;
Where to file:RTC,
enforceable within its area
of jurisdiction.
b) Any ascendant,
descendant or collateral
relative of aggrieved party
within the 4th civil degree of
consanguinity or affinity.
c) Any concerned citizen,
organization, association or
institution, if no known
member of immediate
family.
Where to file:RTC,
Where to file:RTC, SC, CA,
Sandiganbayan, CA, SC;
Sandiganbayan;
Writ is enforceable anywhere Writ is also enforceable
CA or SC, enforceable
in the Philippines.
anywhere in the Philippines.
anywhere in the Philippines.
Petitioner is exempted to pay Indigent petitioner is
docket and other lawful
exempted to pay docket
fees.
When issued:Forthwith when When issued:Immediately if
a petition therefor is
on its face it ought to be
presented and it appears
issued;
that the writ ought to issue,
Served immediately;
Summary hearing set not
later than seven (7) days
from date of issuance.
and other lawful fees.
When issued:Immediately if
on its face it ought to be
issued;
Served within 3 days from
issuance;
Summary hearing set not
later than ten (10) work days
from date of issuance.
Contents of verified
petition:a) Personal
circumstances of petitioner
and respondent;
Contents of verified petition: Contents of verified
petition:a) Personal
circumstances of petitioner
(a) That the person in
and of respondent
whose behalf the
responsible for the threat,
application is made is
imprisoned or restrained of act or omission;
b) The manner the right to
his liberty;
privacy is violated or
b) Violated or threatened threatened and how it
affects the right to life, liberty
(b) The officer or name of right to life, liberty and
the person by whom he is so security of aggrieved party, or security of aggrieved
party;
imprisoned or restrained; or, and how committed with
attendance circumstances
if both are unknown or
detailed in supporting
uncertain, such officer or
c) Actions and recourses
affidavits;
person may be described
taken by petitioner to secure
by an assumed appellation,
the data or information;
and the person who is
c) Investigation
served with the writ shall be conducted, specifying
d) Location of files,
deemed the person
names, personal
registers or databases,
intended;
circumstances and
government office, and the
addresses of investigating
person in charge, in
authority
or
individuals,
as
(c) The place where he is
possession or in control of
so imprisoned or restrained, well as manner and conduct the data or information, if
of investigation together with known;
if known;
any report;
(d) A copy of the
e) Reliefs prayed for, which
d)
Actions
and
recourses
commitment or cause of
may include the updating,
detention of such person, if taken by petitioner to
rectification, suppression or
it can be procured without determine the fate or
destruction of the database
impairing the efficiency of whereabouts of aggrieved or information or files kept by
party and identity of person respondent;
the remedy; or, if the
imprisonment or restraint is responsible for the threat,
without any legal authority, act or omission; and
f) In case of threats, relief
such fact shall appear
may include a prayer for an
e) The relief prayed for.
order enjoining the act
complained of; and
f)
May include general
Contents of return:
a) Whether he has or has
not the party in his custody
or power, or under restraint;
b) If he has the party in his
custody or power, or under
restraint, the authority and
the true and whole cause
thereof, set forth at large,
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 or is
restrained by him, and is not
produced, particularly the
nature and gravity of the
sickness or infirmity of such
party by reason of which he
cannot, without danger, be
brought before the court or
judge;
d) If he has had the party in
his custody or power, or
under restraint, 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.
prayer for other just and
equitable reliefs.
Contents of
return:a) Lawful defenses;
g) Such other reliefs as are
just and equitable.
Contents of
return:a) Lawful defenses
such as national security,
b) Steps or actions taken to state secrets, privileged
determine whereabouts of communications,
confidentiality of source of
aggrieved party;
information;
c) All relevant information
pertaining to threat, act or b) Disclosure of data/info
omission against aggrieved about petitioner, nature of
data/info, purpose of
party;
collection;
d) If respondent is a public
official or employee, further c) Steps or actions taken
state: (1) verify the identity of by respondent to ensure
aggrieved; (2) recover and security and confidentiality
preserve evidence related to of data or information;
death or disappearance of
person identified in petition; d) Currency and accuracy
(3) identify witnesses and
of data or information;
their statements; (4)
determine cause, manner, e) Other allegations
location and time of death relevant to resolution of the
or disappearance as well as proceedings.
pattern or practice; (5)
identify and apprehend
* A general denial of the
person/s involved in the
allegations in the petition is
death/disappearance; (6)
not allowed.
bring suspected offenders
before a competent court.
Effects of failure to file
return:The court, justice or
judge shall proceed to hear
the petition ex parte.
Effects of failure to file
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 petitioner
to submit evidence.
Procedure for 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.
Procedure for 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.
Interim reliefs available
(Not applicable)
before final
judgment:a) Temporary
Protection Order – protected
in a government agency of
by an accredited person or
private institution capable of
keeping and securing their
safety;
b) Inspection Order – with a
lifetime of 5 days which may
be extended, may be
opposed on the ground of
national security or
privileged information, allows
entry into and inspect,
measure, survey or
photograph the property;
c) Production Order – to
require respondents to
produce and permit
inspection, copying or
photographing of
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things that contain
evidence.
Effect of filing criminal
Effect of filing criminal
action:A criminal action first action:A criminal action first
filed excludes the filing of the filed excludes the filing of the
writ; relief shall be by motion writ; relief shall be by motion
in the criminal case. A
in the criminal case; A
criminal case filed
criminal case filed
subsequently shall be
subsequently shall be
consolidated with the
consolidated with the
petition for the writ of
petition for the writ of
amparo.
habeas data.
Appeal:To the SC under Rule Appeal:To the SC under Rule Appeal:To the SC under Rule
45, within 48 hours from
45, within 5 days from notice 45, within 5 days from notice
notice of judgment (Tan
of adverse judgment, to be of judgment or final order, to
Chin Hui vs. Rodriguez, GR given the same priority as
be given the same priority as
137571, Sept. 21, 2000).
habeas corpus cases.
habeas corpus and amparo
cases.
A writ of habeas corpus
does not lie where petitioner
has the remedy of appeal or
certiorari because it will not
be permitted to perform the
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having jurisdiction over the
person and the subject
matter (Galvez vs. CA, GR
114046, Oct. 24, 1994).
Quantum of proof:By
substantial evidence. Private
respondent to prove ordinary
diligence was observed in
the performance of duty.
Public official/employee
respondent to prove
extraordinary diligence was
observed, and cannot
invoke the presumption that
official duty has been
regularly performed to
evade responsibility or
liability.
Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors
(AM No.
03-04-04-SC)
(1) The Family Court has exclusive original jurisdiction to hear petitions for custody of
minors and the issuance of the writ of habeas corpus in relation to custody of minors.
The Court is tasked with the duty of promulgating special rules or procedure for the
disposition of family cases with the best interests of the minor as primary consideration,
taking into account the United Nations Convention on the Rights of the Child. It should
be clarified that the writ is issued by the Family Court only in relation to custody of
minors. An ordinary petition for habeas corpus should be filed in the regular Court. The
issue of child custody may be tackled by the Family Court without need of a separate
petition for custody being filed.
(2)
The Committee chose the phrase “any person claiming custody” as it is broad
enough to cover the following: (a) the unlawful deprivation of the custody of a minor;
or (b) which parent shall have the care and custody of a minor, when such parent is in
the midst of nullity, annulment or legal separation proceedings (Sec. 2).
(3) The hearings on custody of minors may, at the discretion of the court, be closed to
the public and the records of the case shall not be released to non-parties without its
approval (Sec. 21).
(4)
A motion to dismiss the petition is not allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties. Any other ground that might
warrant the dismissal of the petition shall be raised as an affirmative defense in the
answer (Sec. 6).
(5) Upon the filing of the verified answer of the expiration of the period to file it, the
court may order a social worker to make a case study of the minor and the parties and
to submit a report and recommendation to the court at least three days before the
scheduled pre-trial (Sec. 8).
(6) Hold Departure Order – The minor child subject of the petition shall not be brought
out of the country without prior order from the court while the petition is pending. The
court motu propio or upon application under oath may issue ex parte a hold departure
order addressed to the BID of the DOJ a copy of the hold departure order within 24
hours from its issuance and through the fastest available means of transmittal (Sec.16).
Writ of Amparo (AM No. 07-9-12-SC)
Coverage; Distinguish from habeas corpus and habeas data; Who may file; Contents of
return; Effects of failure to file return; Procedure for hearing; Institution of separate action;
Effect of filing of a criminal action; Consolidation; Interim reliefs available to petitioner
and respondent; Quantum of proof in application for issuance of writ of Amparo
(1)
See table above.
Differences between Amparo and search warrant
Omnibus waiver rule
Writ of Habeas Data (AM No. 08-1-16-SC)
Scope of writ; Availability of writ; Distinguish from Habeas Corpus and Amparo; Who
may file; Contents of the petition; Consolidation; Effect of filing of a criminal action;
Institution of separate action
(1)
See table above.
Instances when petition be heard in chambers
(1)
A hearing in chambers may be conducted where the respondent invokes the
defense that the release of the data or information in question shall compromise
national security or state secrets, or when the data or information cannot be divulged
to the public due to its nature or privileged character (Sec. 12).
Change of Name (Rule 103)
Differences under Rule 103, RA 9048 and Rule 108
Rule 103
RA 9048
Petition should be filed in the Petitions filed with the city or
RTC where the petitioner
municipal civil registrar, or
resides
with consul general for
citizens living abroad
Civil Registrar is not a party.
Solicitor General to be
notified by service of a copy
of petition.
Petition is filed by the person Verified petition in the form
Rule 108
Verified petition filed in the
RTC where the
corresponding Civil Registry is
located
Civil Registrar is an
indispensable party. If not
made a party, proceedings
are null and void. Reason: he
is interested party in
protecting the integrity of
public documents. Solicitor
General must also be
notified by service of a copy
of the petition.
By a person interested in any
desiring to change his name of affidavit is filed by any
person having direct and
personal interest in the
correction
Involves change of name
Involves first name and
only
nickname
acts, event, order or decree
All cancellation or correction
of entries of: (a) births; (b)
marriages; (c) deaths; (d)
legal separation; (e)
judgments or annulments of
marriage; (f) judgments
declaring marriages void
from the beginning; (g)
legitimations; (h) adoptions;
(i) acknowledgments of
natural children; (j)
naturalizations; (k) election,
loss or recovery of
citizenship; (l) civil
interdiction; (m) judicial
determination of filiation; (n)
voluntary emancipation of a
minor; and (o) changes of
name.
Involves substantial changes Involves clerical or
Substantial and adversary if
typographical errors
change affects the civil
status, citizenship or
nationality of a party;
Summary if involves mere
clerical errors (Republic vs.
Valencia, 141 SCRA 462).
Grounds:(a) Name is
Grounds:a)
First name or Grounds:Cancellation or
ridiculous, dishonorable or
nickname is found to be
correction of entries of: (a)
extremely difficult to write or ridiculous, tainted with
births; (b) marriages; (c)
pronounce;
dishonor or extremely
deaths; (d) legal separation;
difficult to write or
(e) judgments or annulments
pronounce;
of marriage; (f) judgments
(b) Change is a legal
declaring marriages void
consequence of legitimation
from the beginning; (g)
or adoption;
b)
The first name or
legitimations; (h) adoptions;
nickname has been
(i) acknowledgments of
habitually
and
continuous
(c) Change will avoid
used by petitioner publicly natural children; (j)
confusion;
known by that first name or naturalizations; (k) election,
(d) One has continuously nickname in the community; loss or recovery of
citizenship; (l) civil
used and been known since
interdiction; (m) judicial
c)
Change
will
avoid
childhood by a Filipino name
determination of filiation; (n)
confusion.
and was unaware of alien
voluntary emancipation of a
parentage;
minor; and (o) changes of
name.
(e) Change is based on a
sincere desire to adopt a
Filipino name to erase signs
of former alienage, all in
good faith and without
prejudice to anybody; and
(f)
Surname causes
embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose, or that
the change of name would
prejudice public interest
(Republic vs. Hernandez, 68
SCAD 279); Republic vs.
Avila, 122 SCRA 483).
Order for hearing to be
published once a week for
three consecutive weeks in
a newspaper of general
circulation in the province.
Entry is correct but petitioner
desires to change the entry
An appropriate adversary
proceeding
Requires judicial order
Service of judgment shall be
upon the civil register
concerned
Appeal may be availed of if
judgment or final order
rendered affects substantial
rights of person appealing.
Petition shall be published at Order shall also be published
least once a week for two
once a week for three
consecutive weeks in a
consecutive weeks in a
newspaper of general
newspaper of general
circulation.Also to be posted circulation in the province,
in a conspicuous place for and court shall cause
ten consecutive days.
reasonable notice to persons
named in the petition.
Entry is incorrect.
Cancellation or correction of
correct or incorrect entries
An appropriate
An appropriate summary or
administrative proceeding. adversary proceeding
depending on effects
Does not require judicial
Directed or changed by the
order.
city or municipal civil
registrar or consul general
without judicial order
Transmittal of decision to civil Service of judgment shall be
registrar general
upon the civil register
concerned
In case denied by the city or Appeal may be availed of if
municipal civil registrar or
judgment or final order
the consul general,
rendered affects substantial
petitioner may either appeal rights of person appealing,
the decision to the civil
to the RTC or to the CA.
register general or file
appropriate petition with
proper court by petition for
review under Rule 43.
Grounds for change of name
(g)
When the name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
(h)
When the change is a legal consequence of legitimation or adoption;
(i)
When the change will avoid confusion;
(j)
When one has continuously used and been known since childhood by a Filipino
name and was unaware of alien parentage;
(k) When the change is based on a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudice to anybody; and
(l)
When the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose, or that the change of name
would prejudice public interest (Republic vs. Hernandez, 68 SCAD 279); Republic vs.
Avila, 122 SCRA 483).
Absentees (Rule 107)
(1) Stages of absence:
(a)
provisional absence
(b)
declaration of absence
(c)
presumption of death
Purpose of the Rule
(1)
The purpose of the Rule is to allow the court to appoint an administrator or
representative to take care of the property of the person who is sought to be judicially
declared absent. It also aims to have the court appoint the present spouse as
administrator or administratrix of the absent spouse’s properties, or for the separation of
properties of the spouses.
Who may file; when to file
(1)
The following may file an application for the declaration of absence of a person:
(a)
Spouse present;
(b)
Heirs instituted in a will, who may present an authentic copy of the same;
(c)
Relatives who would succeed by the law of intestacy; and
(d)
Those who have over the property of the absentee some right subordinated to
the condition of his death (Sec. 2).
(2)
After the lapse of two (2) years from his disappearance and without any news
about the absentee or since the receipt of the last news, or of five (5) years in case the
absentee has left a person in charge of the administration of his property, the
declaration of his absence and appointment of a trustee or administrator may be
applied for (Sec. 2).
(3)
When a person disappears from his domicile, his whereabouts being unknown,
and without having left an agent to administer his property, or the power conferred
upon the agent has expired, any interested party, relative or friend, may petition the
Court of First Instance of the place where the absentee resided before his
disappearance for the appointment of a person to represent him provisionally in all that
may be necessary (Sec. 1).
Cancellation or Correction of Entries in the Civil Registry (Rule 108)
Entries subject to cancellation or correction under Rule 108, in relation to RA 9048
(1)
Upon good and valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a minor; and (a) changes of
name (Sec. 2, Rule 108).
(2) The petition for change of first names or nicknames may be allowed when such
names or nicknames are ridiculous, tainted with dishonor or extremely difficult to write or
pronounce; or the new name or nickname has been used habitually and continuously
petitioner and has been publicly known by that first name or nickname in the
community; or the change will avoid confusion (Sec. 4, RA 9048).
Appeals in Special Proceeding (Rule 109)
Judgments and orders for which appeal may be taken
(1) An interested person may appeal in special proceedings from an order or judgment
rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where
such order or judgment:
(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 (Sec. 1).
When to appeal
(1)
Appeals in special proceedings necessitate a record on appeal as the original
record should remain with the trial court, hence the reglementary period of thirty (30)
days is provided for the perfection of appeals in special proceedings.
Modes of appeal
(1) While under the concept in ordinary civil actions some of the orders stated in Sec.
1 may be considered interlocutory, the nature of special proceedings declares them as
appealable orders, as exceptions to the provisions of Sec., Rule 41. Thus:
(a)
Ordinary appeal. The appeal to the CA in cases decided by the RTC in the
exercise of its original jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in
special proceedings and other cases of multiple or separate appeals where the law or
the Rules so require. In such cases, the record on appeal shall be filed and served in like
manner.
(b)
Petition for review. The appeal to the CA in cases decided by the RTC in the
exercise of its appellate jurisdiction shall be by petition for review in accordance with
Rule 42.
(c) Petition for review on certiorari. In all cases where only questions of law are raised
or involved, the appeal shall be to the SC by petition for review on certiorari in
accordance with Rule 45.
Rule on Advance Distribution
(1)
Notwithstanding a pending controversy or appeal in proceedings to settle the
estate of a decedent, the court may, in its discretion and upon such terms as it may
deem proper and just, permit that such part of the estate as may not be affected by
the controversy or appeal be distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule 90 of these rules (Sec. 2).