Feb 28proceedings Notes Final

Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in SPECIAL PROCEEDINGS
Notes by: Paul Lemuel E. Chavez
SPECIAL PROCEEDINGS NOTES
Preminary Considerations Special Proceedings - Defined by R1 S4 as a remedy by which a party seeks to establish a status, a right, or a particular fact 1970 Bar: Distinguish Special Proceedings from Criminal Procedure and Ordinary Civil Action Special Proceedings apply suppletory May involve only one party Involves 2 or more parties Initiated by petition Involves the State against the accused Initiated by complaint Except Habeas Corpus, NOT based on a cause of action Initiated by complaint (but filed in court by Information) Based on a cause of action Sources of Special Proceedings: - R72-109 - 1987 Constitution - RA7160 Katarungang Pambarangay Law - BP 129 or the Judiciary Reorganization Act of 1980 - RA 7691 or An Act Expanding the Jurisdiction of the MTC (particularly those with respect to gross estate of the deceased) - A8 S5 P5, 1985 Constitution - Administrative Circulars issued by SC o AM 3-2-5- Guardianship of Minors o AM 3-4-4- Custody of Minors/HC o AM 8-1-16- Habeas Data o AM 7-9-12- Amparo - RA 9048 or Correction of Entries in the Civil Registry - RA 8042 - Jurisprudence - RA 9262 CONSTITUTIONAL PROVISIONS RELATING TO SPECIAL PROCEEDINGS A3 S1 Based on an act or omission punishable by law Criminal Procedure Ordinary Civil Action A remedy by which a party seeks to establish a status, a right, or a particular fact A party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, The State prosecutes a person for an act or omission punishable by law A proceeding wherein a person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the corresponding penalty provided for by penal laws Governed by the Revised Rules of Criminal Procedure Governed by the rules for ordinary civil actions
Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in SPECIAL PROCEEDINGS Notes by: Paul Lemuel E. Chavez
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. A8 S1 Judicial Power shall be vested in 1 Supreme Court and in all other courts as may be established by law. Judicial Power includes the duty of the courts to settle actual controversies involving rights which are legally demandable or enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. A8 S5 P5 The Supreme Court shall promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the IBP, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial bodies shall remain effective unless disapproved by the Supreme Court. A6 S30 No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. A7 S18 P3 The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision within 30 days from its filing. A8 S2 The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 thereof No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members. A8 S5 The Supreme Court shall have the following powers: 1. exercise original jurisdiction over cases affecting ambassadors, public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus 2. review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may provide, final judgments and orders of lower courts in: a. all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question
b. all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto c. All cases in which the jurisdiction of the lower court is in issue d. All criminal cases in which the penalty involved is reclusion perpetua or higher e. All cases in which only an error or question of law is involved (Others) : A2 S11 The state values the dignity of every human person and guarantees full respect for human rights. A2 S12 The state recognizes the sanctity of the family and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and moral character shall receive the support of the government. (A3 S13 All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. [?]) A3 S15 The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion or when public safety requires it. A15 S1 The state recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. A15 S2 Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. A15 S3 The State shall defend: 1. the rights of spouses to found a family in accordance with their religious convictions and the demand of responsible parenthood 2. rights of children to assistance including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.
A15 S4 The family has the duty to care for its elderly members but the state may also do so through just program of social security. What are the special proceedings? R72 S1- SEGTARHHCVJCDC 1. Settlement of estate of deceased persons 2. Escheat 3. Guardianship and custody of minors 4. Trustees 5. Adoption 6. Rescission and revocation of adoption 7. Hospitalization of insane persons 8. Habeas corpus 9. Change of name 10. Voluntary dissolution of corporations 11. Judicial approval of voluntary recognition of minor natural children 12. Constitution of the family home 13. Declaration of absence and death 14. Cancellation of correction of entries in the civil registry EXCLUSIVE?! NO!!! Certain proceedings not mentioned are considered as special proceedings, such as: 1. Declaration of presumptive death 2. Annulment / nullity of marriage 3. Naturalization proceedings 4. Liquidation proceedings 5. Corporate rehabilitation 6. Recognition and enforcement of arbitration proceedings 7. Vacation, setting aside, correction or modification of an arbitral award 8. Any application with a court for arbitration assistance and supervision 9. Writ of amparo 10. Writ of habeas data 11. Correction of clerical errors 12. Proceeding allowing illegitimate children to use the surname of their father 13. Declaration of nullity or annulment of marriage 14. Declaration of legal separation 15. Commitment of children Why? Because these are proceedings tending to establish a status, a right, or a particular fact Nature of Special Proceedings: IN REM! - Binding upon the whole world o Note that most special proceedings require publication Note further that Special Proceedings are not Special Civil Actions, though both are governed by own rules Special Proceedings are governed by own rules, EXCEPT: - When there are no applicable provisions in the rules, rules on Civil Procedure / Ordinary Civil Actions apply only in a suppletory character What rule governs special proceedings? Rule 72-109, Rules of Court
Exception: R72 S2 In the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, applicable in special proceedings
(aka Rules on Ordinary Civil Actions apply suppletorily to Special Proceedings) - Special Proceedings has its own rules, if there are no applicable provisions, apply Rules on Ordinary Civil Actions What are those specific provisions in Civil Procedure which also apply to special proceedings? 1. Rule 4- Rules on Venue Can the RTC-Manila entertain petition for probate of the will if the deceased died in Quezon City? YES!!! Because the rules on venue can be waived. Failure to object to improper venue is tantamount to waiver. (Special Proceedings in relation to Rule 4) 2. Rule 7 S1- Parts of a Pleading Note that all of special proceedings are commenced by way of petition A petition is a pleading Hence, the need to comply with Sections 4 and 5 of Rule 7 - Verification - Certification against non forum shopping Basis: Rule 72 S2 3. Rule 16- Motion to Dismiss YES! Basis: Rule 72 S2 4. R33- Demurrer to Evidence Settlement of Estate of the Deceased, being adversarial in character, is demurrer to evidence allowed? YES!!! Basis: Rule 72 S2, the rules on civil procedure apply to special proceedings in a suppletory character. Jurisdiction - Power or authority of the court to hear, decide a case, and implement its decisions IF the court has no jurisdiction over special proceedings, - Motion to dismiss can be filed for lack of jurisdiction over the subject matter o Note, however, that the dismissal is without prejudice What then will be your remedy? Refile the petition, as provided for in Rule 16 Can the court dismiss the petition motu proprio for lack of certification against forum shopping? NO!!!
A motion to that effect needs to be filed, for failure to comply with condition precedent (S) SETTLEMENT OF THE ESTATE OF THE DECEASED (RULE 73-90) What is ESTATE? An estate is an artificial being created by operation of law which will undertake distribution of properties left by the deceased.
- Distribution, disposition, management of properties left by deceased - Being a juridical being, it can sue and be sued o Juridical being with entity separate and distinct from the decedent RA7160- Barangay Conciliation Law / Katarungang Pambarangay For purposes of settlement of estate of the deceased, there is no need to refer the case to the Katarungang Barangay first! (vda de Borromeo vs Pogoy) Juridical persons such as estate are not covered by Barangay Conciliation proceedings. NOTE: Trusteeship and Guardianship does not need to pass Barangay SETTLEMENT OF ESTATE OF THE DECEASED Definition: Settlement of Estate of the Deceased is a conciliation proceeding where the property of the deceased would be distributed pursuant to the provisions of law or the will of the decedent. Personal and Real- Totality of Estate of Deceased (GROSS VALUE- value before deductions) Jurisdiction (BP129 RA7691): Depends upon the gross value of the estate of the deceased value of the estate prior to deductions of debts, etc If the gross value of the estate of the deceased exceeds 300k OMM or 400k MM, RTC has jurisdiction If the gross value of estate of the deceased does not exceed 300k OMM or 400k MM, MTC / MuTC / MCTC, MuTC in Cities has jurisdiction 1997 Bar: The gross estate of the deceased is 200k, the property is in Pampanga. Determine the jurisdiction and the venue. Because the gross value of the estate of the deceased does not exceed 300k OMM, MTC has jurisdiction (Basis: BP 129 as amended by RA 7691) Note however, that when it comes to venue, the question is misleading (Property located in Pampanga). To answer the question, here goes: As to venue, my answer would depend on whether the decedent is a resident or non-resident of the Philippines. If the decedent is a resident of the Philippines, whether a citizen or an alien, the venue shall be the last actual residence of decedent. If the decedent is a nonresident, venue shall be the place where the estate / property is located. Hence, in the case at bar, if decedent is a resident, the venue shall be the actual residence of the deceased (pwede Pampanga, pwede hindi, depende sa facts), but if a non- resident, then Pampanga is the proper venue because that is where his estate is located. If filed in the court not with jurisdiction, file motion to dismiss on the ground of lack of jurisdiction over the subject matter Venue: R73 S1 If the decedent is: - an inhabitant of the Philippines at the time
of his death, o whether a citizen or an alien,
his will shall be proved, or letters of administration granted, and his estate settled, in the COURT in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, - the court of any province in which he had estate. NOTE: Venue is WAIVABLE Modes of Settlement of Estate of the deceased: 1. JUDICIAL or EXTRAJUDICIAL - Judicial- with court intervention - Extrajudicial- without court intervention 2. PROBATE or NON PROBATE - Probate- there is a need to prove the will, judicially (or administratively)? - No need to prove will / intestate testate succession Kinds of Settlement of Estate of the Deceased: A. Adjudication of Sole Heirship (R74 S1) - Extrajudicial settlement, non-probate - Adjudicated unto himself the entire estate Requirements: a. No will / intestate b. No outstanding debts c. One surviving heir / sole heir d. Affidavit of adjudication of sole heirship filed in Office of Register of Deeds e. File bond equivalent to the value of personal property or lien in favour of creditors in case of real property f. Publication in a newspaper of general circulation once a week for 3 consecutive weeks Note: In the 2006 Bar Examinations, in legal forms and practical exercises, this question was asked: Prepare a Draft of Adjudication of Sole Heirship To answer, follow the contents of Rule 74, in a PUBLIC INSTRUMENT What is a NEWSPAPER OF GENERAL CIRCULATION? (Basa vs Mercado) 1. Made within the Courts Jurisdiction 2. Published at regular intervals for determination of news and general information 3. with bona fide subscription list of paying subscribers 4. not devoted to the interest of a particular class
Once a week for 3 consecutive weeks- NOT NECESSARILY 21 days, rather, it is once a week, 3 weeks consecutively- THIS IS WHAT CONFERS JURISDICTION UPON THE COURT Remedies of those aggrieved by extrajudicial settlement: - within 2 years, file a claim against the bond or the real estate - rescission in case of preterition of compulsory heir tainted with Bad Faith reconveyance of real property - action to annul deed of EJ settlement on the ground of fraud
- reconveyance based on implied or constructive trust - ordinary action against distributees, but not against the bond When there are 2 or more Heirs, B. Extrajudicial Settlement of Estate of the Deceased (R74 S1) Done by means of CONTRACT between the surviving heirs EXTRAJUDICIAL SETTLEMENT OF ESTATE OF THE DECEASED Know all men by these presents: --------------------------------------------------------Property: No............. S1 to S4 R74 - 2 years for those unduly deprived of the estate to file... - Minors represented by Guardian ad litem for purposes of distribution o Subject to Rule 74 S4, after settlement and distribution Requirements: (R74 S1) a. Decedent died intestate b. No outstanding debts c. Heirs are all of age, or if minors, are properly represented d. Public instrument (notarized contract) e. Registration with registry of deeds where property is located f. Publication once a week for 3 consecutive weeks in a newspaper of general circulation g. Bond in case of personal property left by decedent who will answer for claim of those unduly deprived h. Registration of said affidavit of agreement Protections accorded to those unduly deprived: a. Publication b. Bond- can go after it c. File petition for surrender of your share as far as estate of deceased is concerned C. Settlement of Estate of the Deceased of Small Value a. Gross value of estate of the deceased does
not exceed 10k b. Summary judicial adjudication c. Applies to testate or intestate d. Available even if there are debts e. Filed by petition containing allegations of gross value of estate upon hearing not less than 1 months nor higher than 3 months from the date of last publication or notice f. Publication in a newspaper of general circulation once a week for 3 consecutive weeks g. Notice to interested persons h. Filing of a bond in an amount fixed by court i. Court order is recorded in the Office of the Clerk of court j. Order of partition or award is recorded in the proper Registry Office Before, filed with RTC of last residence But NOW, due to amendments brought by RA 7691, jurisdiction is now with MTC- PURSUANT to the RULE ON SMALL CLAIMS (Summary) Publication- 5k
Lawyer- 5k Appearance fee- 2k - Parang kulang pa?! Liabilities of Distributees of Estate (Rule 74 S4) - Heir or other person unduly deprived of lawful participation in the estate - Outstanding debts which have not been paid - Heir or other person is unlawfully deprived of lawful participation payable in money Properties subject to settlement of estate of the deceased: REAL AND PERSONAL PROPERTY - Real property- A415, NCC - Personal property- A416-417, NCC o Movables o Credits o Bonds o Deposits Settlement of Estate of the Deceased 1. Probate of the will- with will - With necessity of proving, imprescriptible 2. Intestate Estate Proceedings- without will Jurisdiction- depends on the gross value of the estate of the deceased Exceeds 300k OMM 400k MM- RTC Does not exceed 300k OMM 400k MM- MTC Venue- last residence of decedent, or if a non resident, then where estate may be found Last Residence- actual residence - Kung san permanent - No 2 residences at the same time Nature of Probate Proceedings: a. IN REM- binds whole world, publication as a requirement Why the need to probate will? - For reasons of public policy o R75 S1, stating that no will shall pass either real or personal property unless it is proved and allowed in the proper court IF you divide a property outside of probate proceedings, and there is a will, the division is VOID b. Imprescriptible In case of intestate estate proceedings, partition, basta kapag may lumabas na nag-iwan pala ng last will and testament ang decedent, then the probate proceedings shall prevail, and the former shall be held in abeyance What is a WILL?
- Formal written disposition of a person allowing for the distribution of his properties and rights according to his intention, to take effect after his death Understand the concept in relation to the following: - Declaratory relief - Parol evidence rule
o Includes WILLS- the will itself only is the one available, no modification as far as real estate is concerned Probate of a will 2 kinds of Will 1. Notarial Will 2. Holographic Will Obligation of executor to deliver the same 20 days after such death If he refuses, administrator with a will annexed shall be appointed (NOTE: NCC provisions) Hence, failure to comply with NCC requirement is a ground for disallowance of a will Example: when executed and attested not in conformity of the requisites provided for by law PROCEDURAL REQUIREMENTS: I. Custodian to deliver the will to the court within 20 days after knowing of testators death (75 2) II. 20 days after knowledge of death or knowledge of being named executor, executor to present will to the court having jurisdiction (75 3) III. Petition for allowance filed (76 1) see below, WHO MAY FILE IV. Contents of Petition: (76 2) - Jurisdictional facts - Names, ages, residents of heirs, devisees, legatees - Probative value and character of the estate - Name of the person for whom letters are prayed - Name of the person having custody of the will if not yet delivered to the court V. Court to fix time and place for proving the will VI. Notice to be published 3 weeks successively (76 3) VII. Notice for time and place for proving the will to heirs, legatees, devisees of testator, executor if not the petitioner, co executors not petitioning 20 days before hearing by mail or 10 days by personal service VIII. Prove Due execution of the Will - The will was executed in compliance with formalities - Testator was of sound and disposing mind at the time of making the will - No vitiation of consent by duress, fear, threats
- Not procured by undue and improper influence or pressure on the part of the beneficiary or of some other person for his benefit - Signature of testator is genuine, not procured by fraud or trick, testator
intended that what he signed is his last will and testatement IX. Hearing under the following rules: (see: Rule 76) Uncontested notarial will - At least one subscribing witness to testify that the will is executed as required by law The testimony of at least 1 subscribing witness only if such witness testifies that the will is executed as is required by law when none of the subscribing witnesses resides in the province but the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witnesses on his examination, who may be asked the same questions with respect to it, and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present - Outside province, deposition (R76 S7) if the subscribing witnesses are dead, insane, or none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator and the due execution of the will. And as evidence of execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them - Dead, etc, other witnesses can testify (R76 S8) Uncontested holographic will - 1 subscribing witness who knows the handwriting and signature of testator - If none, expert testimony may be taken at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the signature and the will are in the testators handwriting in the absence of such witness, and if the court deems necessary, expert witness may be resorted to Contested notarial will - All subscribing witnesses plus notary public - If absent, sufficiently show as far by testimony - If all are dead, etc, other witness or expert witness may be availed or presented (Expert witness as exception to opinion Rule under Rule 130) all subscribing witnesses and the notary public, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any one of them must be shown to the court if all or some of the witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken if any or all of the witnesses testify against the due execution of the will or do not remember having attested to it, or are of doubtful credibility, the will may be allowed if the court is satisfied
from the testimony of other witnesses and all the evidence presented that the will was executed and attested in the manner required by law Contested holographic will - 3 witnesses who knows the handwriting and signature of testator o IMPT: prove signature- or else, ground for disallowance of a will - If none, expert testimony may be taken Hence, pag 2 lang, e di petition denied! allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator
in the absence of any competent witness, and if the court deems it necessary, expert testimony may be resorted to Notarial Will - With attestation clause o Non compliance therewith, patay ka... may problema ka sa petition Who may file petition for probate of a will? 1. Testator himself (in case of ante mortem probate) 2. Executor 3. Devisee 4. Legatee 5. Any person interested in a will 6. Any creditor Filed before MTC or RTC IF testator is the one who filed, what is the quantum of proof required? - Testimony niya? o Pwede If a will is probated, it is valid as far as due execution is concerned. Once a decision is made, it is conclusive, and can no longer be questioned What are the powers of the probate court? 1. Distribute shares 2. Determine who are the legal heirs 3. Issue warrants and processes to secure attendance of witnesses 4. Determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate 5. Determine the following: a. Who are the heirs of decedent b. Recognition of a natural child c. Validity of disinheritance effected by testator d. Status of a woman who claims to be the lawful wife of decedent e. Validity of waiver of hereditary heirs f. Status of each heir g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse h. Matters incidental or collateral to the settlement and distribution of the estate As a general rule, the probate court has no power to determine issues of ownership, except: (non conclusive/Disputable Presumption under Rule 131) a. For including property in inventory without prejudice to final determination in a separate action b. When all parties are heirs and they submit issue of ownership to the probate court provided that the rights of the parties are not prejudiced c. Question is one of collation or advancement d. When the parties consent to assumption of jurisdiction by the probate court and the rights of third parties are not impaired To Determine the following questions: a. Who are the heirs of decedent b. Recognition of a natural child
c. Validity of disinheritance effected by testator d. Status of a woman who claims to be the lawful wife of decedent e. Validity of waiver of hereditary heirs f. Status of each heir g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse h. Matters incidental or collateral to the settlement and distribution of the estate Grounds for disallowance of a will (important: lumalabas sa Bar): Rule 76 S9 1. if the will is not executed and attested as required by law 2. if the testator is insane or otherwise mentally incapable to make a will 3. if the will was executed under duress or under the influence of fear or threats 4. if the will was procured by undue and improper influence, on the part of the beneficiary or of some other person for his benefit 5. 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 In case of lost or destroyed will, no probate, except as provided in R76 S6: (note this, lumalabas to sa bar) SECONDARY EVIDENCE as exception to the Best Evidence Rule 1. Execution and validity of the will by the testator be established 2. That the will is proven to have been in existence at the time of the death of testator or is shown to have been accidently or fraudulently destroyed during the lifetime of testator without his knowledge 3. Its provisions are clearly and distinctly proved by at least 2 credible witnesses How to / Who can prove due execution, genuiness? Pursuant to rules of evidence: 1. By persons or witnesses present when executed 2. By notary public 3. By any person present during execution of the will NOTE that proving lost or destroyed will is exception to best evidence rule - Lost or destroyed will in accordance with R130 S3, prohibiting presentation of secondary evidence A petition for probate of a will is an initiatory pleading If the parties subsequently file a petition for letters testamentary or of administration, is it considered as initiatory pleading?
NO! It is considered as continuation of probate of a will, hence, there is no need for petition against non forum shopping Is oral partition valid between surviving heirs? As amongst the heirs, valid amongst themselves. But in order to bind third persons, for purposes of registration, the partition must be in a public
instrument to be valid as to registration. If not in a public instrument, then not valid as to registration. Probate of a will, - There is need for appointment of executor, if with a will - If no will, then administrator Can there be administrator in case there is a will? YES! In 2 instances: - When executor refused to accept the trust, or - The executor is disqualified Called, ADMINISTRATOR WITH A WILL ANNEXED Who can be appointed executor or administrator? Order of preference in appointment of regular administrator or executor: 1. Surviving spouse 2. Next of kin 3. Any person interested in the will, or creditor 4. Any person the court may appoint Remedies in case of adverse decisions in: Appointment of regular administrator- APPEAL - Because appointment is final and executory Appointment of special administrator- CERTIORARI RULE 65 - Because appointment is interlocutory in character REPROBATE OF A WILL (note: lumalabas to sa bar) Rule 77 - Will probated abroad is not automatically allowed in the Philippines o Hence, the need for petition for reprobate of a will How to prove? - Copy of the will duly probated by court of competent jurisdiction in the foreign country - Duly allege the law on probate proceedings in the foreign country, allege in the body of the petition for reprobate, duly authenticated Requisites: 1. Due execution of the will in accordance with foreign laws 2. Testator is domiciled in a foreign country
3. Will is admitted to probate in such country 4. Foreign court or tribunal is a probate court 5. Law of the foreign country on procedure and allowance of the will R77 in relation to Rule 39 S48 (Effect of foreign judgment) and Processual Presumption A probate of will abroad is considered as foreign judgment, hence, the need for petition for reprobate to be considered binding and enforceable upon our courts Requisites to be appointed: EXECUTOR: (Rule 78 S4) - Named in the will
- The will is proved and allowed - Testator is competent, accepts the trust, and gives bond ADMINISTRATOR (Rule 79 S2) - Competent - Appointed by the court - Files petition for letters of administration o Jurisdictional facts o Names, ages, residences of heirs, creditors o Probative value and character of the estate o Name of person for whom letters are prayed Powers of E or RA (R84 S1-3) - Have access to, examine and take copies of books and papers relating to partnership in case of deceased partner - Examine and make invoices of property belonging to the partnership in case of deceased partner - Maintain in tenantable repairs, houses, other structures and fences and deliver the same in such repair to heirs or devisees when instructed to do so by the court - Make improvement on properties under administration with necessary court approval except for necessary repairs - Possess and manage the estate when necessary for payment of debts, for payment of expenses of administration As far as Executor or REGULAR ADMINISTRATOR is concerned (N/A to special administrator, who are disqualified to serve as such? (R78 S1) To question, file comment or opposition to the petition, if denied, then as far as they are concerned, decision is final and executory, hence, APPEAL is the proper remedy 1. Minor 2. Non resident 3. One who in the opinion of the court is unable to exercise the duties of a trust by reason of: a. Drunkenness b. Improvidence c. Want of understanding d. Want of integrity e. Conviction of an offense involving moral turpitude So, lasenggo- disqualified Drug addict- disqualified (Bakit? Hmmm... pwedeng pumasok to sa improvidence ah... ) Convicted of dishonesty, or with issues about it- disqualified Convicted of crime INVOLVING MORAL TURPITUDE What is moral turpitude? - an act of baseness, vileness, depravity in the private and social duties which a man owes his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals (Herrera, p.81)
o basta act contrary to justice, honesty, modesty, or good morals What are crimes involving moral turpitude? HINDI LAHAT AH! Key: basta may PANLOLOKONG INVOLVED (kasi to be Executor or Administrator, involves position of trust and confidence) 1. estafa
2. falsification of public documents 3. perjury Rape? NO!!!! Ano bang kinalaman ng rape sa pagiging executor or administrator ng estate????!!! NOTE HOWEVER, na above disqualifications apply only ADMINISTRATOR, not to appointment of special administrator. Removal of Executor or Administrator, GROUNDS: (Rule 82 S2) - neglect to render accounts within 1 year and when required by the court - neglect to settle the estate according to the Rules - neglect to perform order or judgment of the court or duty provided by Rules of Court - absconding - insanity, incapability, or unsuitability of discharging trust NOT ABSOLUTE! Other grounds: 1. Death 2. Resignation, etc Special Administrator Instances when appointed: 1. delay in appointment of executor or administrator 2. delay in appeals in main case 3. when the executor or regular administrator is claimant of the estate he represents (in case of opposition on appointment/appointment of special administrator, if denied, certiorari is proper remedy, because order of appointment is interlocutory [R65 rel to R41 S1]) Powers of SA: (80 2) - possess and charge of goods, chattels, rights, credits, estate - preserve the properties - commence and maintain suits - sell only perishable properties or properties ordered sold by court - pay debts only as may be ordered by the court to appointment of REGULAR
- submit inventory and render accounting Requisites in case of Executor or Administrator: 1. File Bond- required Is there any instance when executor or administrator is exempt from filing bond? YES! - When provided by testator in his last will and testament that filing of bond is not needed Executor or administrator was appointed, here comes heir, now, can the heir file petition for appointment of his person as administrator? NO!!!! Unless there is ground for removal of executor or administrator, di pwede basta mag file
yung heir ng petition for his appointment as administrator In case of Adverse Decision- appeal from the order of appointment (pag regular administrator) Rule 83 INVENTORIES To be made within not mandatory period of 3 mos from the grant of letters testamentary or letters of administration (S1) Articles not subject: (S2) 1. wearing apparel of surviving spouse and minor children 2. marriage bed and bedding 3. provisions and other articles as will necessarily be consumed in subsistence of the family of the deceased Question on rentals. Can it be filed by mere motion? NO!!! Executor or administrator must file action against lessee by way of independent action - because property is not yet included in estate of deceased o Reason why file a claim against 3 1. When executor is cross examined on those matters Principle of Dead Mans Statute (Rule 130 S23)- reason for disqualification REQUISITES (Rule 130 S23): - Witness is a o party or o assignor of a party to a case of persons in whose behalf a case is prosecuted - action is against o executor or o administrator or o other representative of deceased person or o person of unsound mind - subject matter of the action is o claim or o demand against estate of deceased person or against person of unsound mind - testimony refers to o any matter of fact which occurred rd before the death of such deceased person by Executor or person or before such person of Administrator unsound mind Rationale: declarant cannot be cross examined, lips
Can Executor or Administrator be made to testify to are sealed forever by death those matters relating to executor by deceased Purpose: designed to close lips of party plaintiff before his death? when death permanently closed lips of party (Related to Rules on Evidence) defendant in order to remove from surviving party the temptation to give false testimony and NO!!!! Because disqualified to testify possibility of fictitious claims against deceased Except: NOTE: Waivable If testified to, with right to cross examine
If not, then waived Principle of Statute of Non Claims - Claim by a person against the estate of deceased which should be made not less than 6 months nor more than 12 months since first publication of allowance of the will o Letters testamentary issued, first publication After such order, allow claimants to file, or else, barred forever, EXCEPT: - Belated claims (not claim not filed within original period fixed by court, extended for not higher than 1 month from order allowing belated claims) Claims against the Estate: (relate to Rule 3 S16, Rule 3 S20 if dismissed, file under Rule 86) 1. Claim which survives death a. Arising from contract, express or implied b. Note S20 R3 in relation to Special Proceedings c. May be claimed against estate of the deceased 2. Funeral expenses 3. Expenses for last illness of decedent 4. R111 S4- death after arraignment (interrelate the aforesaid provisions) a. Aka LIABILITY ARISING FROM DELICT Criminal action- impliedly instituted civil action (Rule 87 in relation to Rule 111, death before arraignment/after arraignment) Specific claims against estate (Rule 86 S5): - For recovery of money not secured by him - Money claims, debts insured by decedent during lifetime arising from contract express or implied, due or not due, contingent or not - Claims for funeral expenses - Claims for last illness - Judgment of money against decedent - Claims for taxes - Absolute claims - Contingent claims Question regarding the person who died in accident, while yung nabangga niya suffered injuries. What is the remedy of the latter? File suit for damages, contingent claim against the estate para not barred by statute of non claims How to file claim against estate: (Rule 86 S9)
1. File claim before clerk of court, supported by vouchers, receipts, judgment of the case 2. Serve copy thereof on executor or administrator 3. Duly supported by affidavit stating amount due and fact of no offsets 4. If claim is not due or contingent, accompanied by affidavit stating particulars Note in relation to R68 aka Foreclosure of mortgage
Remedies of Mortgagee after death of mortgagor (Rule 86 S7): 3 remedies, avail 1, exclude others na 1. Abandon or waive the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate 2. Foreclose his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is a claim for deficiency, he may file a contingent claim against the estate within the statute of non claims 3. Rely solely on the mortgage and foreclose the same at any time within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate In short, 1. Abandon mortgage, prosecute claim against estate 2. Rely solely on mortgage and foreclose any time within period of statute of limitations 3. Foreclose mortgage, file contingent claim against estate of deceased to be able to claim deficiency a. Pag foreclose lang, and no contingent claim i. BARRED FROM CLAIMING DEFICIENCY! dapat, foreclose plus file contingent claim to be entitled to deficiency Hence, look at the problem: - Foreclose - Contingent claim o Both must be present to be able to claim deficiency o Pay wala, wala! Pag foreclose lang Pag contingent claim lang Actions against Estate of the deceased (87 S1) - To recover real property or interest therein from the estate - To enforce lien - Recovery of damages for injury to petitioner or property - For revival of money judgment - Actions for causes which survive How to file? Requirements (Rule 87 S10)
- Deficiency of assets in hands of E or A - Deceased had made or attempted to make fraudulent conveyance - Subject to would be liable to attachment on his lifetime - E or A showed no desire to file action or fail to institute the same within a reasonable time - With leave of court - Bond filed - Action in the name of executor or administrator
Actions to be filed by executor or administrator against third person for estate of deceased: - Person suspected of having conveyed property, ask third person to appear before it and examine him (87 6) - To recover property, rights, interests, debts, where there is deficiency or assets in the hands of E or A (87 9) - Ask third person with portion of estate of deceased to render full accounting of money, goods, chattel, etc Conditions for payment of Claims (Rule 88) - Order by court of sale or exchange, proceeds to satisfy debts and expenses - Exhaust personal property of deceased, then the realty, in the following instances: o Personal estate not sufficient for that purpose o Sale of personalty to the detriment of participants Case filed against Executor or administrator in another court, and without consent of the probate court, the executor or administrator entered into compromise agreement. Pwede? NO!!! - File claim against estate of deceased muna, and that is the only time that the compromise can be approved by the probate court Notice of lis pendens - Notice with the purpose of notifying subsequent buyers in case of title to or possession of real property Is notice of lis pendens needed to secure? NO NEED!!! - Property is already included in the settlement, secured by probate court Sale, Encumbrance of Property of Estate: (Rule 89)(no property of estate may be sold without court approval) 1. Petition before the court by E or A 2. Notice to heirs, devisees, legatees 3. Court approval of sale of property of estate a. Pag wala, bawal Hence, Executor or Administrator cannot just enter into compromise agreements 4. Court order to sell realty to pay debts and legacies NOTE: Creditors can stop the sale by giving bond fixed by the court to pay debts and legacies
When sale of property of decedent may be effected/instances/requirements: (Rule 89) - Personal estate (S1) o Pay debts and expenses of administration o Pay legacies o Cover expenses for preservation of the estate - Real Estate (S2)
o Personal estate insufficient to pay obligations o Sale of personal estate may injure business o Testator has not made sufficient provisions for payment of debts, legacies, expenses o Deceased is under contract to deed real property to beneficiaries - (S4) o When beneficial to heirs, devisees, legatees, interested persons o Estate of deceased in foreign country is not sufficient to pay debts and expenses - (S6) o Estate acquired on execution or foreclosure sale when beneficial to heirs, devisees, legatees, other interested persons Executor or administrator, in case of sale, is required to file written petition setting forth: (R89 S7) - Debts due from settlement - Expenses of administration - Legacies - Value of personal estate - Situation of estate - Other facts showing sale as necessary or beneficial Requirement for advanced distribution of property: Rule 90 S1 Distributee to give bond conditioned for payment of debts, funeral expenses, expenses for administration, allowance of widow, inheritance tax (E) ESCHEAT (Rule 91) What is escheat? - Proceedings whereby a decedent who died intestate (without will), and without heirs, but left property, the latter shall become property of the estate upon his death Is it the same as reversion (R91 S5)? - NO o The essence, however, is the same, but, reversion is filed by state to recover property of a person unlawfully acquired in violation of the Constitution, AMLA, Plunder Law, or the Anti Graft law R91 S1- escheat By verified petition filed by Sol Gen or Representative, stating the ff matters: - Decedent died intestate - No heirs or persons by law entitled to the same - Decedent left real or personal properties - Decedent is a resident of the province of last residence or if a non resident, has property in the courts jurisdiction Rule 91 S2
Hearing to be conducted not higher than 6 months from entry of order, copy of order to be published once a week for 6 consecutive weeks in a newspaper of general circulation Rule 91 S3 Effects of declaration of Escheat: Resident decedent
- Personal estate to be assigned to municipality or city of last residence - Real estate to be assigned to municipality or city where it may be found Non resident decedent - Whole estate to be assigned to municipality or city where found, for benefit of public schools and charitable institutions and centers in said cities or municipalities NOTE: Expropriation- different from escheat and revesion (See notes on civil procedure) Jurisdiction / Venue of Escheat proceedings: RTC or MTC (depends upon gross value of the estate) of the place where the decedent last resided before his death or if a non resident, where his estate is situated (Rule 91 S1) Escheat Expropriation Reversion Decedent died without a will, no heirs, but with property (G) GUARDIANSHIP (Rules 92-97, Guardianship of Incompetents; AM 3- 2-5, Guardianship of Minors) What is guardianship? - Special proceeding whereby the property of the ward is administered by a person appointed by the court Guardian - A person appointed by court or by law to administer the property of the ward Jurisdiction and Venue: In case of Guardianship of minor: (AM 3-2-5 S3) - Family Court where the minor actually Payment of just compensation resides or where the property situated if non-resident minor (in relation to RA 8369 aka Family Courts Act of 1997) In case of Guardianship of incompetent: (Rule 92 S1) - RTC of the place of residence of incompetent person or if a resident of a foreign country, where the property or portion thereof is situated Who may petition for guardianship? In case of minor: (for purpose of managing affairs or properties) S2, AM 03-02-05-SC 1. Relative - Parent - Guardian Concerns property for public use Remedies of heir unlawfully deprived (file within 5 years from judgment or else, forever barred): 1. Recover the properties escheated from the
city or municipality 2. Recover proceeds of the sale of the property from the city or municipality (if sold by the city or municipality) In case of adverse decision on escheat, Remedy: - APPEAL (Record on Appeal 30 days- relate to Rules 40 and 41)
- Brother or sister 2. Other person in behalf of minor - Actual custodian 3. Minor himself, if he is 14 years of age or over In case of incompetent: Rule 93 S1 (if incompetent is a resident) 1. Relative 2. Friend 3. Other person in behalf of an incompetent who has no parents or lawful guardian 4. Secretary of Health in case of insane person who should be hospitalized or in favour of an isolated leper Rule 93 S6 (if incompetent is a non resident) 1. Relative 2. Friend of such person 3. Any person interested in his estate, in expectancy or otherwise 4. Secretary of Health in case of insane minor who needs to be hospitalized Note that pursuant to the Domestic Adoption Act (S7 DAA), the ward may be adopted by the Guardian after termination of Guardianship Kinds of Guardians 1. Natural Guardian- parents of ward 2. Guardian ad litem- appointed for specific purpose 3. Judicial Guardian- appointed to manage affairs or properties of the ward Who are minors? Incompetents? Minors: Any person below 18 years of age Incompetents: - Suffering from civil interdiction - Hospitalized lepers - Prodigals - Deaf and dumb who are unable to read and write - Of unsound mind, even though with lucid interval - Not of unsound mind, but by reason of age, disease, weak mind, other similar diseases, cannot take care of the property without outside aid, becoming an easy prey to deceit and exploitation
Who can be guardians of a minor? (S16, Rules on Guardianship of minors) - Parents - Surviving grandparents or if several, court to select taking into account all relevant considerations - Oldest brother or sister, - Actual custodian, o In the latter 2, higher than 21 y o, unless unfit or disqualified - Any other person the court may deem sufficient
Duties of a guardian: - Give bond - Render inventory - Faithfully execute duties of trust - Render accounting of estate and interests - Settle debts - Deliver estate, effects, moneys to persons lawfully entitled thereto - Perform all orders of the court required by him to be performed - Care and custody of ward, management of estate, or both - Pay debts of ward out of personal property or income of real property - Settle all accounts, sue for, receive debts with court approval - Appear for and represent ward in all actions and special proceedings - Manage estate of ward without waste, apply income and profits for best interests of the ward - If income is insufficient for purposes, sell or encumber real estate when authorized by court to do so, apply proceeds for maintenance of the ward Requirements for sale or disposition of properties of the ward: AM 3-2-5 (minors); Rule 95 (incompetents) - Verified petition stating: o Income of estate sufficient for maintenance of ward o For benefit of ward that real estate be sold and proceeds used - If sale beneficial to ward, court to order next of kin and other persons to appear and show cause why prayer should not be granted - Hearing of proofs and allegations, refuse or grant prayer o If beneficial to ward, order sale, proceeds for maintenance of ward and family o Specify cause why sale is beneficial, order estate to be sold at private or public sale - Original bond to stand as security for property appropriated with proceeds, but judge may require additional bond as condition for granting proceeds of the sale - Court to invest proceeds of sales and encumbrances Grounds for termination of Guardianship: (S25- Minors) - Ward has come of age, - Ward died (97 1- Incompetents) - Competency of ward is judicially determined - Guardianship is no longer necessary - Death of guardian - Death of ward Grounds for removal/resignation of guardian:
(S24- Minors; (97 2-Incompetents) - Guardian becomes insane, or otherwise incapable of discharging his trust - Guardian becomes unsuitable - Wasted or mismanaged wards properties
- Failed to render accounting or make a return for 30 days when due Remedies in case of mismanagement of properties: (S24- Minor; 97 2- Incompetent) - Ask court for removal of guardian - Require guardian to surrender properties of ward to person lawfully entitled thereto - Ward can ask for resignation of guardian CUSTODY OF MINORS IN RELATION TO HABEAS CORPUS AM 3-4-4-SC The remedy of Habeas Corpus is available in issues regarding as to who between 2 persons (usually, spouses) is entitled to have custody over a child - File habeas corpus in such case Distinguish this from Rule 102, because in Custody of Minors in relation to habeas corpus, the issue is specific, while Habeas Corpus under Rule 102 extends to all cases of illegal confinement Jurisdiction/Venue: (S3) Family Court of the place where the minor resides (NOTE: Can also be filed with MTC, RTC, CA, SC [?]) Mother and grandparents, or husband and wife. Who has better right to custody of the child? - In case of children below 7 years old, custody must be given to the mother except if the mother is unfit because of immorality Who may file petition for custody of minors? S2, AM 03-04-04-SC Any person claiming such right, such as: (S13) 1. Both parents jointly 2. Either parent, taking into account all relevant considerations, especially the choice of the minor over 7 years of age and of sufficient discernment, unless the parent chosen is unfit 3. Grandparent, or if several grandparents, grandparent chosen by the minor over 7 years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified 4. Eldest brother or sister over 21 years of age, unless he or she is unfit or disqualified 5. Actual custodian of the minor over 21 years of age, unless the former is unfit or disqualified 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor Grounds for denial of Petition: - Existing threat or danger of physical, mental, sexual, emotional violations
- Prejudicial to health, safety, welfare - Petitioner with history of child or spousal abuse
- Habitual alcoholism or drug addiction - Marital misconduct - Unfitness of petitioner Protection orders: (S17) requiring any person, 1. To stay away from home, school, business or place of employment of the minor, other parent, or any other party, or from any other specific place designated by the court 2. To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded 3. To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor 4. To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods 5. To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court 6. To comply with such orders as are necessary for the protection of the minor (include those provisional remedies under Rules 57- 61 of the Rules of Court) (T) TRUSTEESHIP (Rule 98) Trust - A confidence imposed in one person, called the trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former for the benefit of the latter o Will by trustor- trustee to hold property for beneficiary WILL- LWT, written document Here, there is trustor, trustee, beneficiary, the trustee to perform acts in the will of the trustor for the beneficiary Jurisdiction/Venue: (Rule 98 S1) MTC or RTC depending on the gross value of the estate of the place where the will is probated, or if a non-resident, where the estate is found Elements constituting a Trust: (De Leon, p. 664) 1. Competent trustor and trustee 2. Ascertainable trust res 3. Sufficiently certain beneficiaries Requisites for trusteeship: 1. Trust reposed between trustor and trustee 2. With sufficiently certain beneficiaries 3. Trust res / subject matter 4. Act to be performed by trustee 5. Beneficiary 6. Work of trustor creating trusteeship
Illustration: father (trustor) deposits money for son in bank, bank being the trustee. Bank cannot release the proceeds to the son (beneficiary) the money until he turns 20 years old.
(A) ADOPTION (RA 8552- DAA; RA8043- ICAA; AM 2-6-2- Rules on Adoption) Adoption - A juridical act, proceeding in rem, which creates between 2 persons a relationship similar to that which results from legitimate paternity and filiation Kinds of adoption: 1. Domestic Adoption (governed by RA 8552) 2. Inter Country Adoption (governed by RA 8043) Jurisdiction / Venue 1. DA- Family court where the adoptive parents reside 2. ICA- ICAB or the Family Court where the minor resides Who may adopt? Requirements? Who may be adopted? DAA 1. Filipino Citizen - Of legal age - In possession of full civil capacity and legal rights - Of good moral character - Not convicted of any crime involving moral turpitude - Emotionally and psychologically capable of caring for children - At least 16 years older than adoptee o EXCEPT: If adopter is biological parent of adoptee If adopter is the spouse of the adoptive parent - In a position to support and care for his or her children in keeping with the means of the family 2. Alien - Possessing the same qualifications as Filipino nationals - His or her country has diplomatic relations with the Republic of the Philippines - Living in the Philippines for at least 3 continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered o EXCEPT: If adopter is former Filipino citizen seeking to adopt relative within 4
th
civil degree of consanguinity or affinity Adopter seeks to adopt LC of Filipino spouse Married to Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4
th
civil degree of consanguinity or affinit5y of Filipino spouse - Certified by his or her diplomatic or consular office or any appropriate agency that he or she has legal capacity to adopt in his or her country o EXCEPT: If adopter is former Filipino citizen seeking to adopt relative within 4
th
civil degree of consanguinity or affinity Adopter seeks to adopt LC of Filipino spouse
Married to Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4 - In a position to provide the proper care and support to give the necessary moral values and example to all his children including the th civil child to be adopted degree of consanguinity or affinit5y of Filipino - Agrees to uphold basic rights of the child as spouse embodied under Philippine laws, UN - His or her government allows the adoptee Convention on the Rights of the Child, and to enter his or her country as his or her to abide by the rules and regulations issued adopted son or daughter to implement the provisions of this Act 3. Guardian - Comes from a country with whom the Philippines has diplomatic relations, and - With respect to ward after termination of whose government maintains a similarly guardianship and clearance of his or her authorized and accredited agency and that financial accountabilities adoption is allowed under his or her national laws ICAA - Possesses all the qualifications and none of the disqualifications provided therein and in 1. Alien permanently residing abroad other applicable Philippine laws 2. Filipino citizen permanently residing abroad - At least 27 years of age and at least 16 years older than child to be adopted at the Who may be adopted? time of the application unless DAA o Adopter is parent by nature of child to be adopted 1. Any person below 18 years of age who has been administratively and judicially - If married, his or her spouse must jointly file declared available for adoption for the adoption 2. Legitimate son or daughter of one spouse
- Has capacity to act and assume all rights by the other spouse and responsibilities of parental authority under his national laws and has undergone 3. Illegitimate son or daughter by a qualified appropriate counselling from an accredited counsellor in his or her country adopter to improve his or her status to that of legitimacy - Not convicted of crime involving moral 4. Person of legal age if, prior to the adoption, turpitude said person has consistently been considered and treated by the adopters as - Is eligible to adopt under his or her national his or her own child since minority law 5. Child whose adoption has been previously rescinded
6. Child whose biological or adoptive parents died, provided, that no proceedings shall be initiated within 6 months from time of death of said parents ICAA 1. Only a legally free child Notes: Correction of simulated birth may be filed simultaneously with petition for adoption Simulated Birth (note: crime to) o Sa certificate of live birth, inilagay, hindi ang biological parents - Hence, in correction of simulated birth, make the corrections Same is true with change of name which can also be filed simultaneously with petition for adoption. Who are the following? Abandoned Child Neglected Child Voluntarily Committed Child Involuntarily Committed Child Dependent Child Section 3 of the Rules on Adoption (AM 02-06-02) provides for the following definitions: Abandoned Child - a child who has no proper parental care or guardianship or whose parents, guardian, or whose parents have deserted him for a period of at least 6 continuous months and has been judicially declared as such Neglected Child- iniiwan sa bahay bahay, sa tapat ng gate (unsure if pertaining to this or to abandoned child) - a child whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian Voluntarily committed child - a child whose parents knowingly and willingly relinquish parental authority over him in favour of the Department Involuntarily committed child- mga asa Boys Town - a child whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment; substantial, continuous, or repeated neglect and abuse; or incompetence to discharge parental authorities Dependent Child - one who is without a parent, guardian, or custodian or one whose parents, guardian, or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support Effect of adoption decree:
- Adoptee will use surname of adoptive parents - Entitle adoptee to successional rights, equivalent to legitimate child - Grant adoptee rights and privileges of legitimate child
IF adoption is rescinded (see below), then revert back to old status before adoption decree Abandoned / Neglected Child - Before, file petition for declaration of abandonment - Ngayon, declaration of abandonment together with adoption may be filed in one petition NOTE that in adoption: BEST INTERESTS / WELFARE OF THE CHILD Petitioner needs to prove he is physically, mentally, financially capable to adopt A person of legal age can be adopted In case of adoption of minor, - Biological parent to issue affidavit of consent without which the petition for adoption shall not be allowed - Can also join in petition for adoption, petition for change of name designated by minor, using surname of adoptive parents state in the petition Inter Country Adoption - Important that there be diplomatic ties between the 2 countries, or else, petition cannot be granted ICAB - Under the Office of the President / DSWD o Asa Legarda / Mendiola, Manila Annexes to petition for ICA: - Written and officially translated in English: 1. Birth certificate of petitioner 2. Marriage contract, or, if not married anymore, divorce decree or judgment dissolving the marriage 3. Sworn statement of consent of petitioners biological or adopted children under 10 years of age 4. Physical, medical, psychological evaluation of petitioner duly certified by duly licensed physician and psychologist 5. ITR or any document showing current financial capability of petitioner 6. Police clearance of petitioner issued within 6 months following filing of petition 7. Character reference from local church / minister, petitioners employer and a member of the immed iate community who have known petitioner for at least 5 years 8. Full body postcard size pictures of petitioner and his immediate family taken at least 6 months before the filing of the petition (R) RESCISSION/REVOCATION OF ADOPTION (RA 8552- DAA) Grounds:
1. Repeated physical or verbal maltreatment by adopter despite having undergone counselling
2. Attempt on life of adoptee 3. Sexual assault or violence on the adoptee 4. Abandonment or failure to comply with parental obligations Jurisdiction / Venue: Family Court which rendered decree of adoption Who may file? (ONLY the ADOPTEE) - Adoptee above 18 y o - If a minor, with DSWD assistance - If higher than 18, but incapacitated, assisted by guardian or counsel When filed? Within 5 years after reaching age of majority or if incapacitated at the time of adoption, within 5 years after recovering from the incompetency Effects of Rescission or Revocation of Adoption: 1. Reinstate former name or surname 2. Reinstate former succession rights 3. All rights and privileges granted by adoption will be removed 4. Paternity and filiation relationship created between adopter and adoptee shall likewise be removed Can adoptive parents file for rescission of adoption? NO! Because adoption is for the best interests of the adoptee What then can be the remedy of adoptive parents? Disinherit the adoptee (H) HOSPITALIZATION OF INSANE PERSONS (Rule 101) (pag nakakita kayo ng tumatawa mag isa at walang dahilan, alam nyo na ang gagawin) Jurisdiction / venue: RTC of the place where the insane may be found Who may file? Regional Director of DOH Hospitalization of Insane Persons Physical and Mental examination of persons Governed by Rule 101 Governed by Rule 28 Special proceeding Mode of discovery File a petition File a motion Filed by Regional Director of DOH Any party may avail of In hospitalization of insane, walang issue, sira ulo lang talaga; sa PME, issue is such PME Insane Person
- A person whose condition of the mind is so impaired in function or so deranged as to
induce a deviation from normal conduct of the person so afflicted Effect of granting petition: R101 S3 Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care for him, - The court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health - The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed Adverse decision, remedy: - Record of appeal within 30 days from notice of judgment or final order (H) HABEAS CORPUS (Rule 102) + WRIT OF AMPARO (AM 7-9-12-SC) + WRIT OF HABEAS DATA (AM 8-1-16-SC) CONSTITUTIONAL BASIS: A8 S5 P5 The Supreme Court shall promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the IBP, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial bodies shall remain effective unless disapproved by the Supreme Court. A3 S15 The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion or when public safety requires it. A7 S18 P3 The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision within 30 days from its filing. Habeas Corpus/Writ of Habeas Corpus:
Habeas Corpus - is a Latin phrase which literally means, you have the body (Festin, Special Proceedings, p. 146) What is WRIT OF HABEAS CORPUS? - Bouviers Law Dictionary defined it as a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and cause of his caption and
detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. (Beda Memory Aid in Remedial Law, p. 172) JURISDICTION/VENUE of HABEAS CORPUS: - RTC of the place where the detained is committed - *MTC (see above venue) in the event of absence of all RTC Judges in the place, or if there is no RTC in that place o In the above 2, enforceable only within their respective territorial jurisdictions o Returnable in RTC - CA - Supreme Court o In the higher 2 courts, enforceable throughout the Phils o Returnable in CA, SC, any justice or in RTC - Sandiganbayan o Person detaining is a public official Note the distinctions between the HC, Amparo, Data! (2009 Bar) (SEE ATTACMENTS) Writ of Habeas Corpus, under Rule 102, applies to all kinds of illegal restraint (ACTUAL RESTRAINT) 1. Illegal detention (detention without cause) 2. Detention under invalid law 3. Service of sentence in excess of what the law imposes (Differentiate from AM 3-4-4) When can the writ of habeas corpus not be issued? 1. When detained under lawful cause 2. In case of invasion or rebellion or when public safety requires it, under A3 S15 of 1987 Constitution 3. When in case of invasion or rebellion, when public safety requires it, for a period not exceeding 60 days, under A7 S18, 1987 Constitution 4. If jurisdiction of the court to try the person detained appears after the writ is allowed 5. If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment, or make the order 6. If the person is charged or convicted of an offense in the Philippines 7. If the person is suffering imprisonment under lawful judgment
8. In case of 3 day detention of a suspect for 3 days without charge, pursuant to S18 of RA93712 aka Human Security Act 9. When person is serving final sentence imposed by court Note that writ of Habeas Corpus is a kind of amparoamparo libertad - Because it is for the protection of personal freedom / constitutional right against illegal confinement
Amparo / Writ of Amparo (as differentiated from writ of Habeas Corpus as amparo) - The constitutional remedy in case of violation or attempted violation to right to life, liberty, security, committed by public official or employee, or a private individual or entity Habeas Data - Constitutional remedy against violation of right to life, liberty, or property of a person, committed by person or government official tasked with collection of information or data Remedy in case of adverse decision in Habeas Corpus Appeal within 48 HOURS!!! Note that regarding this matter, originally, the Rules of Court says nothing. In the subsequent case of Hui vs Rodriguez, the period became 15 days from notice of judgment. But in a SC resolution dated January 21, 2001, Rule 41 S3 was amended, and the 48 hour period was stated. NOTE: Even if there is defect in form and substance in petition for habeas corpus, OK LANG... because life, liberty is at stake Remedy in case of adverse decision in writ of amparo / writ of habeas data Petition for review under Rule 45 raising questions of fact or questions of law, within 5 working days What are the kinds of amparo? 1. Amparo Libertad / Liberty Amparo - Amparo for the protection of personal freedoms, equivalent to the writ of habeas corpus 2. Amparo Contra Leyes / Constitutionality Amparo - Amparo for the judicial review of constitutionality of statutes 3. Amparo Casacion / Judicial Amparo - Amparo for the judicial review of the constitutionality of a judicial decisions made by courts 4. Amparo administrativo / Administrative Amparo - Amparo for the judicial review of administrative decisions made by administrative bodies 5. Amparo Agrario / Agrarian Amparo - Amparo for the protection of peasants rights derived from the agrarian reform laws / processes Origin of amparo: Yucatan, Mexico, 1941 (to protect as stated in the Mexican Constitution) Mexico, 1941 Stated in the Mexican Constitution, which means to protect Petition for writ of amparo: Requirements: S5- Contents of the petition
The petition shall be signed and verified and shall allege the following:
a. The personal circumstances of petitioner b. Name and personal circumstances of the respondent responsible for the threat, act, or omission, or, a. if the name is unknown or uncertain, i. the respondent may be described by an assumed appellation c. The right to a. life, b. liberty, c. and security i. of an aggrieved party violated or threatened with violation by 1. an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits d. The investigation conducted, if any, a. specifying the i. names, ii. personal circumstances, and iii. addresses of the investigating authority or individuals, as well as iv. the manner and conduct of the investigation, together with any report e. The actions and recourses taken by the petitioner a. to determine the fate or whereabouts of the aggrieved party and b. the identity of the person responsible for the threat, act, or omission, and f. The relief prayed for The petition may include a general prayer for just and equitable reliefs. Habeas data - Information or data written, tends to threaten violation of constitutional right to life, liberty or property, and may be ordered destroyed by the court Protection orders / interim reliefs in writ of amparo: 1. Temporary Protection order 2. Inspection order (to inspect premises relative to extrajudicial killings and enforced disappearances ) 3. Production order (to produce documents related to extrajudicial killing and enforced disappearance) 4. Witness protection order Writ of amparo is not a substitute for lost appeal or certiorari - Dapat, there is violation or threat of violation to life, liberty, security, as was ruled in Masangkay vs AFP Chief of Staff A group of squatters live in land occupied by X. X filed ejectment suit against them for illegal possession of property. The decision became final and executory. X applied for writ of demolition
from the court, which was granted. The squatters filed writ of amparo, alleging threatened violation of their right to security. Are they correct?
NO!!! As was ruled in Masangkay vs AFP Chief of Staff, writ of amparo is not a substitute for lost appeal or certiorari. Hence, the squatters should have filed appeal of adverse decision with the proper court. Peremptory writ of habeas corpus / writ of habeas corpus If the clerk of court did not immediately issue writ of amparo, pwede siya ma-contempt Prohibited Pleadings under Writ of Amparo/Habeas Data: Preliminary citation (S11- Amparo; S13- Data) The following pleadings and motions are prohibited: Writ addressed to a person in custody or detaining another to a. Motion to dismiss produce the body of the prisoner at a certain time and place designated therein b. Motion for extension of time to file return, opposition, affidavit, position paper, and other Here, the arrest is (may pleadings be) illegal (most likely) c. Dilatory motion for postponement d. Motion for a bill of particulars e. Counterclaim or cross claim f. Third party complaint g. Reply h. Motion to declare respondent in default i. Intervention j. Memorandum k. Motion for reconsideration of interlocutory orders or interim relief orders and l. Petition for certiorari, mandamus, or prohibition against any interlocutory order (FOR FURTHER DISTINCTIONS, see attachments/tables) Order of court directing person in custody of another to show cause why the writ of habeas corpus should not issue Here, the arrest is not illegal Preliminary Citation - a citation issued by the court to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue o The issuance of preliminary citation arises in instances when the said person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ. Further notes: Pag hindi pwede ang writ of habeas corpus, go with amparo If there is a pending criminal case, you can file amparo with the same criminal case
72-hour rule (NOTE) If not extrajudicial, not enforced disappearance, will amparo apply? (MAY RECENT CASE DITO)
(C) CHANGE OF NAME (Rule 103) + (C) CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (Rule 108) + CLERICAL ERROR ACT (RA 9048) (For further distinctions, see attachment) Change of Name - Filed with RTC where petitioner resides Grounds: 1. Name is ridiculous, tainted with dishonour, extremely difficult to write or pronounce 2. Consequence of change of status, such as in legitimation or adoption (or revocation of adoption to revert back to original name) 3. Having continuously used and been known since childhood by a Filipino name, unaware of alien parentage 4. Sincere desire to adopt a Filipino name to erase signs of former parentage, all in good faith and without prejudicing anybody 5. Necessity to avoid confusion 6. When surname causes embarrassment, and there is no showing that the desired change of name is for fraudulent purpose or would prejudice public interest Note that the Change of Name should not be for the purpose of circumventing liability. Change of Name Correction of Entry Rule 103 Rule 108 Note that under Rule 108, what is sought to be corrected in the Civil Registry is not the name, except that if what is sought to be corrected is first name or nickname, the governing rule is the Clerical Error Act or RA9048, by filing affidavit with the Civil Registry where registered, and if residing abroad, before the nearest Philippine consulate. Rule 103 RA 9048 Judicial administrative Rule 108 RA 9048 Substantial changes for correction of entries in the Civil Register Clerical errors in entry, plus change of first name or nickname Rule 108 was applied in the case of RP vs Cagandahan and Silverio vs Republic In Silverio vs Republic, Rommel had sex change due to sex change / operation, he sought to change name from Rommel to a female name, and wanted sex reassignment from male to female, so he filed for change of name under RA 9048 and correction of entries in the civil register. (BAWAL under RA9048) - The SC denied it
o Sex reassignment- bawal
No law allows it Change of 1 13. judicial determination of filiation st name not 14. voluntary emancipation of minor falling under the grounds 15. change of name (1 in RA 9048 However, in the Cagandahan case, Jennifer Cagandahan had 2 sex organs, male and female, even hormones niya dalawa. So, she sought change of name from Jennifer to Jeff and her sex from female to male. - The SC allowed it - By nature, she had 2 sexes, both male and female, o Hence, she should not be deprived of right to choose whether to be a man or a woman, because it was there by nature Change of name from Jennifer to Jeff- governed by RA9048 Change of sex from female to male- governed by R108 However, even with RA 9048, the court is not divested with right to entertain petition for correction of entries with respect to substantial corrections Grounds for correction of entries under R108: 1. Births 2. Marriages 3. Deaths 4. Legal separations 5. Judgment of annulment of marriage 6. Judgment declaring marriage void ab initio 7. Legitimations 8. Adoptions 9. Acknowledgment of natural children 10. Naturalization 11. Election, loss, recovery of citizenship 12. civil interdiction
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name / nickname under RA9048) These are substantial entries, which can be changed upon good and valid grounds by way of petition. Jurisdiction / Venue: RTC where Civil Register is Located (Rule 108) NOTE: Principle of Sexual Reassignment (Silverio Case) Principle of Intersex (Cagandahan Case) (SEE ATTACHMENT FOR FURTHER DISTINCTIONS on 103, 108, 9048)
(V) VOLUNTARY DISSOLUTION OF CORPORATIONS (Now governed by CORPORATION CODE, S118-119, BP68) The provisions of the Rules of Court regarding this is repealed by the provisions of the Corporation Code Contemplates different modes in different situations: With Creditors OR Without Creditors Modes: 1. Derivative suit - Suit filed by minority stockholders for and in behalf of the corporation 2. Shortening lifetime of the corporation by amendment of the Articles of Incorporation 3. Quo Warranto 4. Dissolution of de facto corporation not registered with SEC- (administrative)
(J) JUDICIAL DECLARATION OF MINOR NATURAL CHILDREN (NOW governed by FAMILY CODE) This provision no longer applies now, because of the Family Code providing that there are only 3 kinds of children: o Legitimate children o Illegitimate children o Legitimated children Legitimate and legitimated children, under rules of succession, are entitled to successional rights, being the 1
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in priority Illegitimate children are entitled to 12 of that to be inherited by legitimate children and legitimated children Legitimated- parents are not married, without legal impediment, if they become married, you become legitimated Provided, after August 3, 1988 (effectivity of the Family Code)
(C) CONSTITUTION OF THE FAMILY HOME (post-Aug 3, 1988- FAMILY CODE; before, Rule 106) FAMILY HOME - Actual residence of spouses or head of the family and their beneficiaries There is no need to constitute Family Home judicially - The Family Code states that a Family Home is constituted automatically once they reside there, provided, o That the question given in the facts of the case does not provide for constitution prior to August 3, 1988 (effectivity of Family Code) If so, then there is a need to constitute it judicially But beyond August 3, 1988, deemed constituted from the time it is occupied as family residence Why the need to constitute? - Because a Family Home is exempted from execution, forced sale, attachment, up to extent of 1M pesos o Example: Family Home is worth 10M Hence, exempted from forced, sale, attachment is 1M 9M less obligations and reimbursements, will revert back to owner of the Family Home Instances when is Family Home not exempt from execution, forced sale, attachment: 1. Non-payment of taxes 2. Debts incurred prior to the constitution of the Family Home 3. For debts incurred by mortgages on the premises, before or after such constitution 4. For debts due to labourers, mechanics, architects, builders, materialsmen, and others who have rendered service or furnished material for the construction of the building Can the family home be subject to partition? As long as there is minor beneificiary residing in the Family Home after the death of the spouses, the family home cannot be subject to partition A152 of the Family Code provides that a Family Home, constituted jointly by the husband and the wife or an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. What is Actual Residence?
It is defined in the case of Garcia vs Fule as the personal, actual, physical habitation of a person, actual residence or place of abode. Who are the beneficiaries of a Family Home?
A154 of the Family Code provides that the following are the beneficiaries of a family home: 1. The husband and wife 2. The unmarried person who is the head of a family 3. #1 and #2s: a. Parents b. Ascendants c. Descendants d. Brothers e. Sisters i. Whether the relationship be legitimate or illegitimate ii. Living upon the Family Home iii. Depend upon the head of the family for legal support Can a Family Home be subject of partition? Basis: A159, Family Code The Family Home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. HENCE, it can be the subject of partition, IF, upon the death of one or both spouses or of the unmarried head of the family, and - the 10 year period for the continuation of the family home lapsed - or, the minor beneficiary has already come of age - or, there are no more debts left Is there a need to file a petition for declaration of Family Home? It depends on when the constitution of the Family Home will take or took place. If the constitution took place prior to August 3, 1988, which is the effectivity of the Family Code, then there is a need to constitute a family home judicially or extrajudicially as provided for in S1 R106. However, if the constitution took place after the effectivity of the Family Code, then there is no need to constitute the same judicially or extrajudicially, because A153 of the Family Code provides that a family home is deemed constituted on a house and lot from the time it is occupied as a family residence from the time of its constitution and so long as any of its beneficiaries actually resides therein. (D) DECLARATION OF ABSENCE and PRESUMPTIVE DEATH (Rule 107, provisions of NCC) Declaration of Absence and Death 2 years / 5 years Note that what is contemplated is actual, absolute whereabouts is unknown! - Yung naglahong parang bula, hindi yung sumakabilang bahay Declaration of presumptive death for purposes of remarriage is a special proceeding Jurisdiction / Venue: RTC of last residence of person presumed dead, without prejudice to reappearance of the absent spouse
- The reappearing spouse must file an affidavit of reappearance before the court granting the declaration of presumptive death o EFFECTS: 2 - or of 5 years in case the absentee has left a person in charge of the administration of his property, o the declaration of his absence and appointment of a trustee or
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marriage to be administrator may be applied for by any of the following: declared void Children of 2
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marriage a. The spouse present however would remain to be legitimate b. The heirs instituted in a will, who may present an authentic copy of the same c. The relatives who would succeed by the law When? Who may petition? What to petition? of intestacy Jurisdiction? Venue? d. Those who have over the property of the S1 R107 provides that when absentee some right subordinated to the condition of his death 1. a person disappears from his domicile 2. his whereabouts being unknown 3. and without having left an agent to administer his property or S3- Contents of petition 4. the power conferred upon the agent has expired The petition for the An: - appointment of a representative, or for - the declaration of absence and the 1. interested party 2. relative 3. friend appointment of a trustee or an administrator, o must show the following: May petition for the appointment of a person to represent him provisionally in all that may be necessary a. The jurisdictional facts The petition is to be filed in: RTC of the place where the deceased last resided before his disappearance
What are the requirements? S2- Declaration of absence; who may petition After - the lapse of 2 years from his disappearance and o without any news about the absentee or since the receipt of the last news,
b. The a. names, b. ages, c. and residences i. of the heirs instituted in the will, ii. copy of which shall be presented, and iii. of relatives who would succeed by the law of intestacy c. The names and residences of creditors and others who may have adverse interest over the property of the absentee d. The probable value, location, and character of the property belonging to the absentee What is the purpose for declaration of absence? 1. For proper representation of the absentee in all his obligations 2. For administration of his property in his absence What is the period? Period to petition for declaration of absence (R107 S2): After: 1. Lapse of 2 years from his disappearance and without any news about the absentee or since the receipt of the last news, or 2. Of 5 years in case the absentee has left a person in charge of the administration of the property Period for service of copies of the notice of the time and place fixed for the hearing (R107 S4): At least 10 days before the day of the hearing, and published once a week for 3 consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. Period when declaration of absence takes effect (107 S6): 6 months after its publication in a newspaper of general circulation designated by the Court and in the Official Gazette. Remedy of a person declared absent upon reappearance: 1. Open up a trust on property held by third persons 2. As to status, file an affidavit of reappearance before the RTC having jurisdiction over the petition for declaration of absence Effect of reappearance of absent spouse: 1. Administration of his property by the appointed administrator in case of his absence shall cease (R107 S8) 2. The property shall be placed at the disposal of those who may have a right thereto (R107 S8) 3. As to the marriage, the subsequent marriage of the present spouse shall be declared void, without prejudice to the status of the children under the subsequent marriage to remain as legitimate, because of having considered as conceived within a valid marriage. a. A petition for declaration of nullity of marriage on this ground has to be filed to that effect (?)
As to the property,
1. Administration of his property by the appointed administrator in case of his absence shall cease (R107 S8) 2. The property shall be placed at the disposal of those who may have a right thereto (R107 S8) What is the nature of a petition for declaration of presumptive death? IN REM - an action against a thing and not against a person, where a decision made shall be binding not only to the parties thereto but against the whole world o Because: with publication requirement o Affects property rights, relations, status of persons Do you consider declaration of presumptive death as a special proceeding? YES!!!!! R72 S1 provides that a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. Even though Rule 72 S2 provides for enumerations of special proceedings, such enumeration is not exclusive. Hence, because declaration of presumptive death is a remedy by which a party seeks to establish the particular fact of presumptive death, then it is a special proceeding even if not within the enumeration under S2 R72. APPEALS IN SPECIAL PROCEEDINGS (RULE 109) 30 day record on appeal (Rule 40-41) Except: Habeas Corpus Cases - 48 hours o As amended by resolution of SC What are those subject of appeal? R109 S1 S1- ORDERS OR JUDGMENTS FROM WHICH APPEALS MAY BE TAKEN An interested person may appeal in special proceedings from an order or judgment rendered by a RTC or MTC, 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 in behalf of the estate to offset to a claim against it d. settles the account of an executor, administrator, trustee, or guardian e. constitutes, in the 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 new trial or for reconsideration
DECLARATION OF NULLITY OF MARRIAGE, ANNULMENT OF MARRIAGE, LEGAL SEPARATION (AM Nullity of Marriage- void ab initio including psychological incapacity, incurable, with psychological report) If under A36, specifically allege psychological incapacity in the body of the petition Prejudicial Question? DEPENDS. Dapat, nullity first before criminal case Civil and Criminal action DEPENDENT PERSONALITY DISORDER: (Ascueta vs Republic; Teh vs Teh) - disorder of a person who cannot make decisions on his own with regard to the marriage (dependent upon outside interference) o (REMEMBER: mga mamas boys) PRINCIPLE OF ANTI SOCIAL DISORDER: - (di ko sure pano i define, basta yung asa sulok at ayaw makakita ng tao) PROVISIONAL ORDERS: - Spousal support - Custody and support of common children - Visitation rights - Administration of ACP/CPG - Other matters similar requiring urgent action - Hold departure order *File together with support order, if respondent, comment on provisional order for support BOTH may claim psychological incapacity (RP vs Molina), even incapacitated spouse Not necessarily appearing during celebration of marriage, but appearing after SALIENT PROVISIONS: S2- Petition for declaration of absolute nullity of void marriages a. WHO MAY FILE A petition for declaration of absolute nullity of void marriage may be filed - solely by the husband and wife b. WHERE TO FILE The petition shall be filed
- in the Family Court c. IMPRESCRIPTIBILITY OF ACTION OR DEFENSE An action or defense for the declaration of absolute nullity of void marriage - shall not prescribe.
d. WHAT TO ALLEGE A petition under A36 of the Family Code shall - specially allege the complete facts showing that o either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of the marriage even if such incapacity becomes manifest only after its celebration. The complete facts - should allege the physical manifestations, if any, o as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. S3- Petition for annulment of voidable marriages a. WHO MAY FILE The following persons may file a petition for annulment of voidable marriage based on any of the grounds under A45 of the Family Code and within the period herein indicated: 1. The contracting party a. whose parent, or guardian, or person exercising substitute parental authority i. did not give his or her consent within 5 years after attaining the age of 21 unless after attaining the age of 21, - such party freely cohabited with the other as husband and wife; or the parent, guardian, or person having legal charge of the contracting party, - at any time before such party has reached the age of 21 2. The sane spouse a. who had no knowledge of the others insanity; or by any relative, guardian, or person - having legal charge of the insane, - at any time before the death of either party; or by the insane spouse - during a lucid interval or - after regaining sanity o provided that the petitioner, after
coming to reason, has not freely cohabited with the other as husband or wife 3. The injured party a. whose consent was obtained by fraud, i. within 5 years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, - has not freely cohabited with the other as husband and wife 4. The injured party whose consent was obtained by force, intimidation, or undue influence, a. within 5 years from the time the force, intimidation, or undue influence disappeared or ceased, b. provided that the force, intimidation, or undue influence having disappeared or ceased, i. said party has not thereafter freely cohabited with the other as husband and wife 5. The injured party
a. where the other spouse is physically incapable of consummating the marriage with the other and b. such incapability continues and appears to be incurable, i. within 5 years after the celebration of the marriage, and 6. The injured party a. where the other party was afflicted with a STD found to be serious and appears to be incurable, i. within 5 years after the celebration of the marriage b. WHERE TO FILE The petition shall be filed with the Family Court S4- Venue The petition shall be filed in the Family Court of the province or city - where the petitioner or the respondent has been residing for at least 6 months prior to the date of filing, or in the case of a non resident respondent, o where he may be found in the Philippines at the election of the petitioner. Requirements of the petition? S5- Contents and form of petition 1. The petition shall a. allege the complete facts constituting the cause of action 2. It shall a. state the names and ages of the common children of the parties and b. specify the regime governing their property relations, c. as well as the properties involved If there is no adequate provision in a written agreement between the parties, the petitioner may - apply for a provisional order for o spousal support, o the custody and support of common children, o visitation rights, o administration of community or conjugal property, and o other matters similarly requiring urgent action. 3. It must be verified and accompanied by a certification against forum shopping. The verification and certification a. must be signed personally by the petitioner. No petition may be filed solely by counsel or through an atty-in-fact
If the petitioner is in a foreign country, the verification and certification against forum shopping - shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice consul or consular agent in said country. 4. It shall be filed in 6 copies. The petitioner shall serve a copy of the petition on - the Office of the Solicitor General and - the Office of the Provincial or City Prosecutor, o within 5 days from the date of its filing and o submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements - may be a ground for immediate dismissal of the petition.
What are the prohibited compromises? S16- Prohibited Compromise The court shall not allow compromise on prohibited matters, such as the following: a. Civil status of persons b. Validity of a marriage or of a legal separation c. Any ground for legal separation d. Future support e. Jurisdiction of courts f. Future legitime Can you file motion to dismiss? S7- Motion to Dismiss No motion to dismiss the petition shall be allowed - except on the ground of lack of jurisdiction o over the subject matter or o over the parties. Provided, however, that any other ground - that might warrant a dismissal of the case o may be raised as an affirmative defense in an answer. What is the effect of failure to appear at the pre trial? S13- Effect of failure to appear at the pre trial a. If the petitioner fails to appear personally, a. the case shall be dismissed, unless i. his counsel or a duly authorized representative appears in court ii. and proves a valid excuse for the non appearance of the petitioner b. If the respondent has filed his answer but fails to appear, a. the court shall proceed with the pre trial and b. require the public prosecutor to investigate the non appearance of the respondent and c. submit within 15 days thereafter a report to the court stating whether his non appearance is due to any collusion between the parties. If there is no collusion, - the court shall require the public prosecutor o to intervene for the state during the trial on the merits to prevent suppression or fabrication of evidence
Service of Summons, Rules: S6- Summons The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: 1. When the respondent - cannot be located at his given address or - his whereabouts are unknown and cannot be ascertained by diligent inquiry, o service of summons may, by leave of court, be effected upon him by publication once a week for 2 consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order. In addition, a copy of the summons - shall be served on the respondent at his last known address by registered mail or o any other means the court may deem sufficient.
2. The summons to be published shall be contained in an order of the court with the following data: a. Title of the case b. Docket number c. Nature of the petition d. Principal grounds for the petition and the reliefs prayed for e. A directive for the respondent to answer within 30 days from the last issue of publication S8- Answer 1. The respondent shall file his answer a. within 15 days from service of summons, b. or within 30 days from last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney in fact. Remedies in case of adverse decision: S20- Appeal 1. PRE CONDITION No appeal from the decision shall be allowed - unless the appellant has filed a motion for reconsideration or new trial o within 15 days from notice of judgment. 2. NOTICE OF APPEAL An aggrieved party or the Solicitor General - may appeal from the decision by filing a Notice of Appeal o within 15 days from notice of the denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. BASIS: Fresh period rule as provided in Neypes vs CA Provisional Orders: Provisional orders which can be applied (S5 AM 02- 11-10-SC): o spousal support, o the custody and support of common children, o visitation rights,
o administration of community or conjugal property, and o other matters similarly requiring urgent action What else? Rule on Provisional Orders, AM 02-11-12-SC S6- Hold Departure Order PROTECTION ORDERS AM 02-11-12-SC Rule on Provisional Orders in relation to RA 9262 or the Violence against Women and Children Act Who may issue? What are those provisional orders? (RA 9262) SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. - Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect is personal service. The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay. SEC. 15. Temporary Protection Orders. Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO. SEC. 16. Permanent Protection Orders. Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing. Respondents non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondents appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one (1) day. Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant. The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. The court shall ensure immediate personal service of the PPO on respondent. The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application.
Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist. SEC. 10. Where to Apply for a Protection Order. Applications for BPOs shall follow the rules on venue under Section 409 of the Local Government Code of 1991 and its implementing rules and regulations. An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: Provided, however, That if a family court exists in the place of residence of
the petitioner, the application shall be filed with that court. How applied? SEC. 11. How to Apply for a Protection Order. The application for a protection order must be in writing, signed and verified under oath by the applicant. It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of a violence as described in this Act. A standard protection order application form, written in English with translation to the major local languages, shall be made available to facilitate applications for protections order, and shall contain, among other, the following information: a. names and addresses of petitioner and respondent; b. description of relationships between petitioner and respondent; c. a statement of the circumstances of the abuse; d. description of the reliefs requested by petitioner as specified in Section 8 herein; e. request for counsel and reasons for such; f. request for waiver of application fees until hearing; and g. an attestation that there is no pending application for a protection order in another court. If the applicants is not the victim, the application must be accompanied by an affidavit of the applicant attesting to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filling of the application. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which court has territorial jurisdiction, and shall provide a mailing address for purpose of service processing. An application for protection order filed with a court shall be considered an application for both a TPO and PPO. Barangay officials and court personnel shall assist applicants in the preparation of the application. Law enforcement agents shall also extend assistance in the application for protection orders in cases brought to their attention. Acts covered by protection orders: (RA 9262) SEC. 8. Protection Orders.- A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victims daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: a. Prohibition of the respondent from
threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; b. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; c. Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; d. Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; e. Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioners or respondents removal of personal belongingness; f. Granting a temporary or permanent custody of a child/children to the petitioner; Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondents employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; h. Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; i. Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; j. Directing the DSWD or any appropriate agency to provide petitioner may need; and k. Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. SEC. 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: a. Causing physical harm to the woman or her child; b. Threatening to cause the woman or her child physical harm; c. Attempting to cause the woman or her child physical harm; d. Placing the woman or her child in
fear of imminent physical harm; e. Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the womans or her childs freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical
or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the womans or her childs movement or conduct: 1. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; 2. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the womans children insufficient financial support; 3. Depriving or threatening to deprive the woman or her child of a legal right; 4. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victims own mon4ey or properties, or solely controlling the conjugal or common money, or properties; f. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; g. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: 1. Stalking or following the woman or her child in public or private places; 2. Peering in the window or lingering outside the residence of the woman or her child; 3. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; 4. Destroying the property and personal belongingness or inflicting harm to animals or pets of the woman or her child; and 5. Engaging in any form of harassment or violence; i. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the womans child/children. Effect of being a battered wife in case of the children? RA 9262, S28 A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome. The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to
the mother, with right to support, unless the court finds compelling reasons to order otherwise. Any other protection orders? Acts? (see above) Venue in case of BPO? SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. - Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect is personal service. The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

Feb 28proceedings Notes Final

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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan CONSOLIDATED NOTES in SPECIAL PROCEEDINGS

Notes by: Paul Lemuel E. Chavez

SPECIAL PROCEEDINGS NOTES

of his death, o whether a citizen or an alien,

civil degree of consanguinity or affinity Adopter seeks to adopt LC of Filipino spouse

1. Repeated physical or verbal maltreatment by adopter despite having undergone counselling

- A person whose condition of the mind is so impaired in function or so deranged as to

o Sex reassignment- bawal

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