Ateneo 2011 Remedial Law (Special Proceedings)

8/9/2019 Ateneo 2011 Remedial Law (Special Proceedings)

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PART IV: SPECIAL PROCEEDINGS

In general

Distinguish between an ordinary civil action and a special

proceeding:

Civil action Spec pro

Enforce/protect right orprevent/redress wrong

Establish right, status, or particularfact

Private interests Theres public interest also bindsthe world (generally). So it must bepublished.

Formal pleadings Motions/applicationSingle appeal Multiple appealsNotice of appeal (usually one page) Record of appeal (voluminous)15 days 30 days

Does the prior requirement of earnest efforts to compromise

between relatives apply to settlement of estate?

o No. Earnest efforts to compromisedoes not apply here,

because that only applies to civil actions. Settlement of estate

is a special proceeding.

Can the court in an ordinary action settle issues relating to special

proceedings?

o No. For instance, the complaint filed in the RTC was an

ordinary civil action for annulment of sale. An ordinary action

cannot settle issues relating to special and limited jurisdiction

of special court (ex. settlement of estate).

Subject matters of special proceedings:o 1. Settlement of estate

o 2. Escheat

o 3. Guardianship

o 4. Trustees

o 5. Adoption

o 6. Revocation of Adoption

o 7. Hospitalization of insane persons

o 8. Habeas corpus

o 9. Change of name

o 10. Voluntary dissolution of corporations now with the SEC

o 11. Judicial approval of voluntary recognition of minor natural

childrenno more natural children

o 12. Constitution of family home operation of law under FC

o 13. Declaration of absence and death

o

14. Cancellation/correction of entries in civil registry What other cases are considered special proceedings?

o 1. Liquidation

o 2. Arbitration

o 3. Alternative Dispute Resolution (ADR)

o 4. Corporate rehabilitation

o 5. Writ of Amparo

o 6. Writ of Habeas data

What is the exception to the general rule that declaration of

absence and presumptive death is a special proceeding?

o Declaration of presumptive death for purpose of remarriage

applied FC rules on summary proceedings.

What is the nature of special proceedings?

o Special proceedings are non contentious proceedings.

SETTLEMENT OF ESTATES

Extrajudicial settlement

What are the modes of extra-judicially settling estate?

o 1. Extrajudicial settlement through public document filed in

ROD

o 2. Ordinary action for partition (Rule 69)

o 3. Affidavit adjudicating estate to sole heir

A judge reopened settlement proceedings for interveningillegitimate children. Is this proper?

o Yes, but he should have made them present evidence first to

establish their right, prima facie.

Can there be EJS even if there is an administrator already?

o Yes. The States underlying reason for favoring extrajudicial

settlementcheaper, faster, simpler

o Two requisites:

1. Move for appointment of another administrator

(because it is a new estate already)


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2. 2 year period

Requirements for summary settlement?

o 1. Gross value of estate = 10K or less

o 2. Whether the decedent left a will or not, DOES NOT

MATTER

o

3. Hearing from 1-3 months after last publication3consecutive weeks in newspaper of GC in province + notice to

interested persons

o Why is it summary?

No administrator or executor

o What must the court do?

Determine if there are creditors

Difference between summary settlement and usual judicial

probate/admin proceedings:

o No more portion where the court appoints an administrator

Requisites for EJS?

o 1. No will

o

2. All heirs of legal age, or minors duly represented

o 3. No debts

What are the procedural matters?

o Record in public document, submitted to ROD

o Publication of factofEJS(so its post hoc)in newspaper of

GC3 consecutive weeks in province

o Bond for personal property

Can easily be disposed of

Unlike real property which you can annotate

What if there is an adverse claim?

o In summary settlement of estate (for small estates), whatever

adverse claim can be protected by annotation lispendens.This should not bar the distribution of the estate

Procedure?

o Real property:

Public instrument

Registration (notice to the world)

annotate/lien

o Personal property:

File bond

When is the decedent presumed to have left no debts?

o When no creditor files a petition for letters of administration

within 2 years of the death of the decedent

Is it mandatory for heirs to have an EJ partition?

o No.

o General rule: settlement is judicial. If no will, no debts, all heirs

of legal ageEJ. But can still do judicial, if there are goodreasons. But a mere spat is not a good reason.

o The heirs can pray for:

1. Dismissal of judicial case, if theyre happywith the

partition

2. Conversion of the action to an ordinary action for

partition

What if its in a private instrument?

o Still valid.

o Note though, that for lack of registration, it will only bind the

heirs. In a case, the ones that donated the land post-

settlement were heirs so they should have been bound to the

EJ settlement.

Does posting of a bond terminate the annotation of adverse

interest?

o No. The two year period has to lapse first.

o Could not substitute annotation with bond. The bond only

applies to personal properties.

What if the heirs could not actually physically divide the property?

o Continued co-ownership could be allowed, by the parties

agreement. No need for spec pro in this case.

X left a will and died. Can the heirs enter into an EJ settlement of

the estate?

o

Yes, as long as they submit the will for probate and the termsof the EJ settlement do not vary the terms of the will. Probate

of a will is compulsory.

What if an heir or creditor is excluded?

o Can go against bond (personal property) or the real property

within 2 years after settlement and distribution of estate by

petitioning for settlement of estate

o What if the person is a minor, incapacitated, is in prison,

or outside the Philippines?

May present claim within 1 year from disappearance

of disability


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What are the remedies against EJS when a creditor or heir is

excluded?

o Excluded creditor

1. If personal, go against the bond

2. If real, annotation

o

Excluded heir 1. Letters for administration

2. Petition for probate of estate 2 years

3. Rescission/partition4 years

4. Annulment on ground of fraud4 years

From discovery of fraud

5. Action reivindicatoria10 years

Count from registration: when implied trust is

renounced (already claiming ownership)

Judicial settlement

Which court has jurisdiction in probate/admin proceedings?o

JURISDICTION:

MTC

300,000 and below (outside MM)

400,000 and below (MM)

RTC

Above 300,000 (outside MM)

Above 400,000 (MM)

o VENUE

Resident

Where the person resided

Non-resident Any place where estate is

Differentiate residence from domicile:

o Resides" should be viewed or understood in its popular sense,

meaning, the personal, actual or physical habitation of a

person, actual residence or place of abode. It signifies physical

presence in a place and actual stay thereat.

o Domicile requires bodily presence in that place and also an

intention to make it one's domicile. For residence, no particular

length of time is required though; however, the residence must

be more than temporary.

Is venue waivable?

o Yes. As this issue is only a matter of VENUE, it is not

jurisdictional. Implication: it can be waived.

What is the exclusion rule?

o When a probate court has taken cognizance of the proceeding,

it excludes all other courts. What is the meaning of taking cognizance in the exclusion rule?

o The court has to do something. So notwhere you first filed,

but the court that first acted.

What is the limited and special jurisdiction of the probate court?

o General rule: probate court cannot pass upon issues of

ownership; can only pass judgment on jurisdiction or probate

of a will

o EXCEPTIONS:

1. For purposes of inclusion in inventory

If all of the parties are heirs and they submit

the issue of ownership to the probate court

and there is no third party prejudiced

Question of collation or advancement

2. All the heirs consent

o What are the implications of this rule?

The court cannot include in the estate property

registered in anothers name

The court cannot include in the inventory property

which belong to a third person

o But the court may:

1. Issue warrants and compulsory processes to carry

into effect orders and judgments

2. All other powers granted by law What issues can be resolved by the probate court?

o 1. Identity of the will

o 2. Due execution of the will

o 3. Capacity of the testator

Maloles II v. Phillips: In the lifetime of the testator, he filed an

admission for probate. So when the nephew filed a motion to intervene,

the proceedings have already terminated. Thats why when the deemed

executrix filed for letters of administration in another court, that court

said that the first court having jurisdiction over the first probate

proceedings must have jurisdiction.


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Alipio:Creditor collecting from CPG for a debt cannot sue the surviving

spouse; must file a claim in the settlement of the estate of the decedent.

Reyes: An adoption decree cannot be subject to collateral attack in a

probate proceeding.

Settlement of estate of a person presumed deadhow is the

estate dealt with?o He is entitled to the balance of his estate after payment of

debts

o Balance may be recovered by mere motion in the same case

where he was declared presumptively dead

Production of will as necessary

Why is probate mandatory?

o Policy of law is to allow a person to freely dispose his property

after death. Respect the wishes of the decedent.

Why is probate necessary?

o

A will that is not probated does not pass property.o To prove due execution of the will

What are the issues of due execution included in probate?

o 1. Compliance with formalities

o 2. Mental capacity

What are the issues excluded from probate?

o Intrinsic aspect of the will (ex. preterition)

What is the implication of allowance of the will in probate?

o Once a will has been probated, no more questions re: validity

of the will may be raised

o An order admitting the will to probate is considered final and

appealable.

So it can be appealed

o

Probate and authentication are the same: court really just

rules upon the extrinsic validity of the will.

o What is the rule on extrinsic validity as to probate?

Conclusive as to due execution.

o What about intrinsic validity?

Cannot raise these issues as a general rule.

Exception: when seen on the face of the will, or for

practical purposes.

Does prescription apply in the probate of wills?

o No. Prescription does not apply in the probate of wills. It is not

a right but a duty.

o Courts dutyis to admit to probate unless one of the grounds to

oppose applies.

Exception to probate?

o

Summary settlement of estatesless than P10K (even if thereis a will)

Because probate is mandatory, what are the responsibilities of the

custodian of the will or the executor?

o 1. Custodian of the will must within 20 days of learning of death

of testators death, deliver to court or to named executor

o 2. Executorto court

Within 20 days of learning of death

OR if appointed after death, then within 20 days

What happens if they fail to comply with the duties?

o Subjected to fine or detention

Allowance or disallowance of the will

Procedure for probate:

o 1. Application

o 2. Court to set hearing date and time

o 3. Publication (if testator is the one who petitioned, no need)

o 4. Notices sent

o 5. Hearing

Who may file the application for petition?

o Executor, legatee, devisee, any person with interest

o Testator himself

Distinguish probate of a will post-mortem and ante-mortem.

o

Post-mortem

A. Executor, heir, administrator, or any interested

person can apply

B. Notice given to compulsory heirs

Notice given to all heirs too by publication

o Ante-mortem

A. The testator himself applies

B. Notice given to compulsory heirs

No notice to other heirs by publication

When can it be filed?


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o Any time

May the testator himself file?

o Yes.

What are the contents?

o 1. Jurisdictional facts

o

2. Names, addresses, ages of heirs, devisees, legateeso

3. Probable value and character of property

o 4. Name of person for whom letters are prayed

o 5. If will not delivered to court, the name of the person with

custody thereof

What are the jurisdictional facts?

o 1. The person executed a will

o 2. Died in province of RTC or if non-resident, owned property

there

o 4. Submit will to court

Three ways of consolidating cases?

o 1. Recast and conduct one hearing only and one decision

o

2. Consolidate all cases into one hearing, one decision

o 3. Principal one heard and suspend others

Who must the applicant be?

o Applicant must be executor of the will, or must have custody

over the will

What must be submitted?

o Must submit original of the will; if mere copy, explain why.

A will was submitted for probate. Can the heirs then decide to just

file a separate case for partition of property?

o Cannot file subsequent separate case for partition of property,

because everyone is bound through publication (notice to

whole world) of the probate proceedingso

Contrastthis with situation where the heirs first prayed for the

dismissal of the settlement proceedings and converted it to

partition proceedings

What is the nature of the probate proceeding?

o Probate of will is in rem; court acquires jurisdiction over all

interested persons and any order binds the whole world

o Mandamus to undergo publication is not the proper remedy

must appeal in due time and manner

What is the rule on publication?

o Newspaper of general circulation: published regularly, appeals

to general interest, bona fide subscription list

o Need not wait full three weeks before the day set for hearing

(can publish for three consecutive weeks for 15 days1stday,

8thday, 15

thday)

How do you serve notices?o 1. To place of residence

o 2. Prepaid

o 3. Through mail (20 days prior to hearing)

o 4. Personally (10 days prior to hearing)

What is the implication of failure to send personal notice?

o If the addresses of the legatees and devisees are known, then

failure to send personal notice is fatal.

o Exception: if there was no notice sent because the address

indicated was wrong.

What if non-compulsory heirs are not given notice?

o In a case, two heirs were not given notice (grandchild and

niece) but since they are not compulsory heirs, this was not

fatal.

What if it is the testator himself that submits the will for probate?

o No need for publication

o Notices only to compulsory heirs

What happens first during hearing?

o First, present jurisdictional facts (death certificate, barangay

certificate, will, publication and notice, etc.):

1. Attach three weeks publication

2. Affidavit of publication

What happens when there is an opponent for a holographic will?

o

At least 3 witnesses who know the handwriting and signatureof the testator must attest.

o May resort to expert witnesses

If notarial will?

o All the subscribing witnesses and the notary must attest

o If some are not there, explain

o Cabang: If probate of will is opposed, all subscribing witnesses

of a notarial will must be presented. Here, just 1invalid.

o What are exceptions to the rule that for opposed wills, one

must present all the subscribing witnesses?


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Avera:if the issue was raised for the first time on

appeal

What if all the witnesses are outside the province of RTC?

o Take one witnesssdeposition

What if the witnesses are dead?

o

May admit other witnesses to prove due execution of will.(Prove handwriting, etc.)

What are the recourses of excluded heirs against a decree of

probate?

o 1. Relief from judgment

(60 days from knowledge + 6 months from decree)

o 2. Certiorari (Rule 65)

o 3. Independent civil action (NCC, Art. 1114), assuming

decision is obtained through fraud

What if the alterations on a holographic will were not dated and

signed?

o This non compliance with Arts 813 and 814 does not affect

extrinsic validity of the holographic will (which only requires

that it be written, dated, and signed)

What if the original proponent of the will died?

o Substitute proponents amended petition already deemed to

have fulfilled publication and notice.

If the will is lost or destroyed, how can it be proved?

o 1. Establish its existence

o 2. It was fraudulently or accidentally lost/destroyed

o 3. Two credible witnesses prove its contents

What are the rules for probate before foreign courts?

o The fact that a foreign court is a probate court must be proved,

in the absence of which, procedure assumed to be the sameas here in the Philippines

o Proof of foreign laws must be submitted

Allowance of will proved outside the Philippines and Administration of estate

thereunder

What is the proceeding for a will allowed outside the country?

o 1. Upon due authentication of

Will

AND order or decree of allowance

o 2. Set hearing

o 3. Give notice as in the case of the original will presented for

allowance

o 4. ALSOpublication, not just notice (jurisprudence)

Difference between principal and ancillary administration?

o

Ancillary administration is administration of the decedentsestate other than the one in which she lived, to dispose the

property she owns there. This is subordinate to, and in aid of,

principal administration.

o Duty of ancillary administrator is to present evidence to support

To which properties does administration extend for these cases?

o Administration only extends to property within State or country

where letter was granted

o No power beyond that.

What does the court issue thereafter?

o Certificate of allowance

Letters testamentary and of administration

When are letters testamentary issued?

o 1. Will has been proved

o 2. Person is competent

o 3. Accept trust

o 4. Give bond

When is an administrator appointed?

o 1. When no executor in named or

o 2. The executor is disqualified, he refuses the trust, or fails to

give a bond or

o 3. A person dies intestate

o

What is the procedure for the issuance of letters of

administration?

1. File petition

2. Court sets hearing

3. Issue order granting letters

o What are the jurisdictional facts?

1. Death

2. Place of death (residence)

3. Nonresident

To whom is the letter of administration granted?


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o 1. Surviving spouse, next of kin, or both, or person appointed

by the SS or next of kin

o 2. One or more of the principal creditors

If the ones in #1 are incompetent or unwilling

Or if they neglect to apply for administration within 30

days of death of decedent What is the nature of this 30 day disqualification?

The 30-day rule disqualifying SS and next of

kin must only apply when there is good

reason to exclude them. (Gabriel)

But some cases applied the 30 day rule

strictly

o 3. Any other person the court selects

o Must this order be followed?

Yes.

o Who has discretion to appoint an administrator?

The Court has discretion to appoint administrator.

Must show proof of filiation.o

Can the court pass upon issue of filiation?

Yes, the court can pass upon filiation issue in

determining order of interested person as

administrators

Who may not serve as administrators?

o 1. Minor

o 2. Non-resident

o 3. Unfit to perform (DILM)

Drunkenness

Improvidence

Lack of understanding or integrity

Moral turpitude conviction

o What if there is a claim of incapacity?

Hold a hearing if there is claim of incapacity or

disqualification

What are the grounds to appoint a co-administrator?

o 1. To represent different interests

o 2. Justice and equity demands opposing factions to be

represented

o 3. large or perplexing estate

o 4. To satisfy all persons

o 5. When person appointed entitled to have another competent

person assist him

Up until when does the court have the power to appoint an

administrator or a co-administrator?

o Probate court may re-open the administration issue as long as

it retains J over spec pro. o Ex. Appoint co-admin which knew details of estate.

What if the administrator has some conflict of interest with part of

the properties being administered?

o Exclude the property in which the administrator had conflicting

interests as appellant and appellee

o Do not remove him as administrator, but just exclude him from

the property in question

Opposing issuance of Letters

Can petitions for administration be opposed?

o

Yes.o On what grounds?

1. Incompetency of the person prayed for

2. Contestants own right to be administrator

o To whom?

To contestant or another person prayed for

Sec 1 of Rule 79what does A petition may at the same time be

filed for LOA with the will annexed?

o When there is no executor or the one appointed is

incapacitated. Or when you are questioning the will.

Who are the ones who can file an opposition to the issuance of

letters?

o

Interested persons. Interest must be direct, not just indirect or

contingent

What if there is an heir who assigns his share during the pendency

of the proceeding?

o If assignment of share occurs in the pendency of the case, still

entitled to notice because the court retains jurisdiction over the

person and that person is still interested. The court must

approve assignment.

What if the assignment occurs before settlement of estate?


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o If assignment of share occurs before settlement of estate, no

interest anymore.

Is the fact that an administrator lacks capacity a jurisdictional

issue?

o No. If the administrator is not an interested party, the motion to

dismiss filed by the opponent must not be based on lack of Jby the court, but lack of legal capacityof the administration.

o Administrators capacity is not jurisdictional fact.

Special Administrators

When do you appoint a special administrator?

o 1. When there is a delay in granting letters testamentary or of

administration by any cause (including appeal from allowance

or disallowance of the will)

o 2. If the executor or administrator himself has a claim against

the estate (but the SA is only for that limited purposefor the

claim) What can an SA do?

o 1. Preserve property, rights, credits for future E/A

o 2. Maintain and commence suits as SA

o 3. Sell only perishable property and those ordered sold

o N.B.not liable to pay debts of the deceased

Can there be two SAs?

o Yes. There can be two special administrators to represent

interests fairly and equitably.

Can the court allow the SA to dispose of other property, and not

just perishables?

o Yes, but must liquidate first and prove ownership.

De Guzman:

o Delay caused on probate due to analysis of validity of a prior

deed of donation covering the estate property is any cause

contemplated in provision re: delay and appointment of SA.

o The partisan possession by respondents cannot replace the

neutral possession of SA.

After appeal, may the court still appoint administrators?

o Yes.

o Nature of appeal in spec pro is record of appeal, so after the

appeal, the court only loses jurisdiction over the subject of

appeal, but not the spec pro. So it may continue to make

decisions re: appointment of administrators.

Does the order of preference apply to SAs?

o No. Order of preference does not apply in appointment of SA.

Bonds of executors and administrators

Can the probate court execute bonds too?

o Yes. Given that the probate court has the jurisdiction and

power to require bonds, then execution of bond is also within

jurisdiction of court.

What are the two most important conditions in the bond?

o 1. Inventory within 3 months

o 2. Accounting within 1 year

Revocation of administration, death, resignation, removal

Generally, when may the court remove executor OR administrator?

o 1. Neglects to render account and settle estate according to

law

o 2. Failure to perform order or judgment of court or duty under

ROC

o 3. Absconding

o 4. Becomes insane or incapable to discharge the trust

When is another ground where the court may revoke letters of

administration?

o If a will has been proved and allowed by the probate court

Who has discretion to remove the administrator?

o

Removal of administrator lies within discretion of courtappointing him. BUT give that administrator his day in court

prior to removal.

o General rule: never interfere with discretion of the court.

What if the administrator fails to render accounting?

o Rendering of accounting after 1 year is mandatory; negligence

is a ground for removal from appointment

What is required to remove an administrator or executor?

o Sufficient evidence of failure to pay real estate tax and to

render proper accounting.


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Inventory and appraisal

What should be included in the inventory?

o All real and personal properties in estate

o In possession OR within knowledge

What are not included?o Provisions to be consumed or for familys subsistence

When is the administrator supposed to submit the inventory?

o Within 3 months after appointment

o 3 month period to submit inventory is not a mandatory period

(Sebial)

If the administrator fails to submit the inventory within 3 month

period, and the interested parties file a motion to remove him as

administrator, can the administrator invoke the Sebialcase?

o No, he can still be removed. The Sebial doctrine is only with

re: the court being able to approve inventory filed beyond 3

month period. (THUS, Sebialis a jurisdictional issue.)

Is the inventory conclusive on the issue of ownership?o Inventory is merely provisional and is not determinative of the

issue of ownership. Separate action necessary to determine

issue of ownership and recover of possession.

Who gets provisional support?

o 1. Widow, 2. Children (minor or incapacitated)

o That children are all of age, gainfully employed, or married

does not affect whether they should receive right to allowance

under Art. 188. The Civil Code makes no distinction; the ROC

cannot limit it. The wife that would get support is the

legitimate spouse.

o Grandchildren not entitled to provisional support from the funds

of the decedents estate. The law limits allowance to widow

and children, and does not extend it to the grandchildren.

General powers and duties of executors and administrators

Can an executor/administrator have access over partnership

books?

o Yes. It only extends to a partnership but not a corporation,

because there is succession in corporation.

o Failure to comply with order of a courtwhat is the

consequence?

Partner can be held in contempt

What is the power of the executor or administrator of the estate of

a deceased partner?

o

Can access records, books, and papers of the partnership anddemand the production of such from the other partners

Is court approval needed to lease property of estate?

o No. Court approval not required prior to an administrator

leasing a property in the estate, because this is not an act of

ownership.

What is the prohibition as regards this lease?

o The administrator cannot lease the property for himself, directly

or indirectly (ex. acting as agent for the partnership leasing the

property)

What is the remedy to annul a contract?

o Separate action to annul.

What is the extent of the rights of the A/E over the property?

o Exercise of rights of A/E over property is for payment of debt or

for administration expenses. It is not absolute.

Accountability and compensation of executors and administrators

What is the rule on increase or loss of value?

o The E/A cannot profit on sale for amount greater than value

must account profits to the estate

o The E/A is not liable for losses without his fault

Until when does the duty to account apply?

o Until the final order for closure and termination of

administration. It lasts until the estate is wholly settled.

o Even after final accounting, as long as there is administration.

What if the executor or administrator resigns?

o The duty applies notwithstanding the existence of compromise

agreement confirming his resignation as co-executor.

o Duty cannot be waived or disregarded.

What if the administrator uses the property of the decedent (ex.

occupying it)?

o He must account for it as may be agreed upon between him

and the interested parties (akin to rentals)


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When does the administrator have to render account?

o Within one year from receipt of Letters.

o

Punongbayan:Exceptional circumstance

In this case, the co-administrator cannot be compelled

to account because he had only been co-

administrator for one day when it was filed. But thedenial of the motion to render account does not

preclude the co-administrator from rendering account,

but within 1 year from receipt of letters of

administration.

What is the rule for attorneys fees?

o Rule with respect to claiming fees: if lawyer and administrator

at the same timecannot claim from estate, but from the

executor/administrator.

o If you are an administrator and engaged services from a

lawyer, then you can claim from the estate as expenses that

benefited the estate.

What if the executor or administrator refuses to pay the attorneysfees, what are the modes of recourse of the lawyer?

o 1. File an action against admin but in his personal capacity and

not as admin.

o 2. File petition in the testate/intestate proceedings asking court

to direct payment of fees as an expense of administration.

In this option, essential to give notice to all heirs and

interested parties.

May the law firm of the lawyer-admin claim attorneys fees?

o Appointment of individual lawyer from a firm is separate from

that of his law firmseparate persons. The Law Office cannot

claim attorneys fees when it was not appointed co-

administrator. Instead, claim from the heirs that it helped, as

legal fees (but not as admin.)

What is the nature of compensation?

o Compensation is in the nature of commissions, and not

attorneys fees.

o A greater sum than that provided in the rule is allowed in

special cases where the estate is large, and the settlement

was difficult, and required high degree of capacity (extent of

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o What is the period for filing claims?

Court sets a period not less than 6 months from first

notice but not more than 12 months

If there is a creditor who fails to claim, with just

reason, the court may grant at most a 1 month

extension; but this must be before order of distribution What claims are covered?

o 1. Money claims(Rule 85, Sec 5)

Arising from contract, express or implied

Whether due, not due, contingent

o 2. Claims for funeral expenses and expenses in last sickness

o 3. Judgment for money

Procedure:

o 1. Filing of claims

o 2. Answer (15 days)

1. Admit

2. Oppose

o

3. Goes to trial What is the statute of non-claims?

o Time period when a person may file claims against the estate

o After which, barred forever.

o Exception:

Counter claims against the estate

How do you file a claim?

o Present to clerk of court

o Together with:

Contract

Vouchers

Affidavit explaining particulars

What if solidary?

o Can file complete amount against the estate.

What if joint?

o Only the share.

What if there is a debt subject to a mortgagewhat are the

options?

o 1. Waive the mortgage and just completely claim from the

estate

o 2. Judicially foreclose the mortgage

You can recover the balance

o 3. Extra-judicially foreclose the mortgage

You cannot recover the deficit/balance

What is the nature of a lease contract?

o A lease contract is transmissible. So when the wife took over

the business of her dead husband, renting certain property,

then there was transfer of interest to her. When she failed topay the rents, no need to go after deceaseds husbands

estate; can go after wife.

What if the will provided that the heirs should pay the money debts

of the estate?

o Even if the will stated that the heirs should religiously pay the

debt, the creditors must still file claims within the settlement

proceedings. There is no getting around Rule 86.

X was the administrator of an estate. X hired Atty. Y. X died. Does

the claim of Atty. Y for fees survive notwithstanding Xs death?

o Yes. The claim of the attorney survives because it is against

estate, not the administrator.

o

A claim against a person, in her capacity as administrator, canbe filed at the court where a special proceeding for settlement

of the estate is pending.

What if the decedent is one of many solidarily liable persons?

o Creditor can sue the living surety alone. This is allowed; death

of one creditor does not extinguish the suretys liability.

What is the rule on lease rentals being assessed after the death of

the person? i.e. There were unpaid rentals accrued from April

1993 to December 1998, but the decedent passed away in 1989. Do

these claims pass to the estate?

o No, because the rentals accrued after his death.

o The general rule is that heirs are bound by the contracts

entered into by the predecessor-in-interest.

o Except if non-transmissible by:

1. Nature

2. Stipulation

3. Provision of law

Actions by and against executors and administrators

What are the claims filed against the executor or administrator by

name?


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o 1. Recovery of real/personal property

o 2. Claim for damages caused by the deceased

o 3. All other actions/claims that survive

What is the right of the E/A to bring or defend actions?

o 1. Recovery or protection of property or rights of the deceased

As long as the action survives

o 2. May foreclose mortgages

When are heirs barred from suing?

o When an E/A assumes the trust, heirs cannot file actions to

recover title or possession of property, or for damages until

there is an order by the court assigning the properties to such

heirs or the time for payment of debts has expired

o What if there is no E/A appointed yet?

Heirs can sue even no administrator has been

appointed yet. (Here, cancellation of extrajudicial

settlement by other heirs)

What are the inequitable situations remedied under Sec. 6 that may

be filed by the E/A, heir, creditor, or any individual with interest?o 1. Property of deceased was concealed, embezzled, conveyed

away by another person

o 2. Person knows deed, bond, contract, conveyance, etc which

contains evidence or discloses the right, title, interest, or claim

of the deceased to real or personal estate

o 3. Person has deceaseds last will and testament:

o What may the court do in these situations?

1. Examine the person on oath on such complaint

2. May use interrogatories

In writing and filed with clerks office

3. Punish for contempt

4. Commit to prison

An heir and an administrator are in conflict as to whether a certain

property must be included in the estate. What may the court do?

o It may pass upon the issue for inventory purposes.

o BUT if there is third person who asserts right to property

contrary to decedents, court has no authorityto resolve the

issue. Separate action instituted to recover the property.

Obando:

o Co-administrator was removed for presenting forged will.

Removal was still on appeal.

o Other guy became the sole administrator. Co-admin sued to

nullify sale he made.

o Dismissed for lacking legal standing, but without prejudice. If

his case gets reversed, and his appointment restored, then

case may be re-filed without being barred by res judicata.

Villegas:o The civil liability that completely arose from criminal liability

was extinguished upon death. Cannot file claim against estate.

o Remember which claims survive and which dont (culpa

criminal doesnt, for instance, but culpa contractual does)

What if there is embezzlement before the letters are issued?

o The fraudulent person is liable for double the value of the

property sold, embezzled, alienated, etc., for the benefit of the

estate

o The E/A files the action

Who may file an action to recover property transferred in fraud of

creditors?

o

The E/A, with the prompting of the creditors (who pay forexpenses or give security)

o If the E/A refuses to do it, the creditors can do it, if they:

1. Pay expenses of the suit

2. Give bond

When is the bond not necessary?

o When the property was fraudulently

conveyed in favor of the E/A

o What is the effect?

The creditors obtain a lien over the properties

recovered

Payment of debts of the estate

The estate sometimes has debts. In this case, how must they be

paid?

o First, from the personal estate.

o Second, from real property not disposed of by will.

o Third, retention to meet contingent claims

Kept for within 2 years after the expiration of period of

claims by creditors


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After 2 years, distribute property to heirs. But the

creditor, if the action ripens, may still go against the

heirs (not the estate anymore)

What is the time to pay the debts?

o Not exceeding one year in the first instance

Can it be extended?o

Yes, for not more than six months

What if the estate is insolvent?

o Follow concurrence and preference of credits

When the estate of partnerhas become insolvent, how must claims

against his separate property be prioritized?

o 1. Those owing to separate creditors

o 2. Those owing to partnership creditors

o 3. Those owing to partners by way of contribution

Sales, mortgages, other encumbrances

Can the court authorize sale/mortgage/encumbrance of realproperty?

o Yes.

o When?

1. Personal estate is not sufficient to pay the debts.

2. Sale of personal property may injure business or

estate

and the testator did not make provision for payment

of the debt (for both)

How can an interested person stop the court order granting

authority to sell?

o Issue a bond to cover for claims of the creditors

When can there be sale of real or personal property upon

application of the E/A, even when it is not for the payment of debts,

legacies, or expenses?

o 1. When it is shown that it would be beneficial to the heirs,

devisees, legatees, and other interested persons

o 2. To pay debts or legacies in another country where it shown

that the estate in the other country is not sufficientin a

probate proceeding in another country

What is the procedure involved?

o 1. E/A files petition to court setting forth debts due, legacies, or

expenses, character of property, plus facts showing sale is

beneficial

o 2. Court fixes time and place for hearing

With notice to interested persons

Optional:publication or otherwise

o 3. Court may require E/A to give additional bond conditioned

on accounting of proceeds of sale

o 4. Court authorizes sale, mortgage, or encumbranceeither

private or public

o 5. Record in ROP

Court, upon claim, may authorize conveyance of property to:

o 1. A person who contracted with deceased

o 2. Beneficiary where the deceased was a trustee

Sale of real propertymust it be with consent of court?

o Any disposition of estate property by an administration or

prospective heir pending final adjudication needs court

approvalo Unauthorized disposition can be annulled by the probate court

without need for separate action

o Can the intestate/probate court execute its order annulling

the sale?

It can. No need for separate court.

Distribution and partition

When is there distribution?

o No distribution shall be allowed until payment of debt, funeral

expenses, giving of allowance to widow, admin expenses,

estate tax, etc. Pay debts and expenses of administration

Court doesnt motu propioorder distribution

o Heirs/person requesting for distribution may file a bond

Palicte

o Heir can redeem properties that were sold to cover debts of the

decedent.

o But she cannot register them in her name yet, because this

would be tantamount to distribution.

Who will pay expenses of administration?


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o E/A from the leftover of the property

o OR heirs/distributees, from their shares

Reyes

o Barretto by will, left fishpond to wife Maria and who he thought

was his daughter, Salud. They executed project of partition,

which divided the fishpond between them. Therefore, whenMaria died, the probate court made a judgment that Salud was

not a legitimate daughter. Now, project of partition is

challenged; claim is that it is an illegal compromise on her civil

status. Held: Valid. Not a compromise, because there was no

litigation to be prevented. The distribution was also based on

will, and not the partition per se. And the will prevails here.

o When the court approved the project of partition, can it still be

contested?

No.

Normally, can be challenged before the order of

distribution

Crucillo v. IACo Oral partition amongst heirs is valid.

Butjust see the rules on w/n it binds third parties

o Proof: heirs exercised ownership over their shares

De Leon

o Question is over inclusion of certain properties decedent

purportedly gave to his children inter vivos in inventory. RTC

issued an order stating those in the Motion for Collation are

subject to inclusion. Order was challenged, by Petitioners

stating that these properties were already titled in their name

and could not collaterally be attacked. CA: cannot challenge

Order for Collation because it has become final. HELD: CA

erred. The order is merely for inclusion in inventory which is

provisional. It is interlocutory. To talk about collation is

premature since there was no indication that debts have been

paid and the estate is ready for distribution.

Escheat

Who can institute actions for escheats?

o The Sol-gen on behalf of the Republic.

Where does the solicitor general file the action?

o In court of province of last residence

o Or if outside Phils., where he has property

o What court?

The provision says CFI, so now its theRTC

When will the hearing be held?

o

Hearing scheduled not more than 6 months from petition What is the publication notice?

o Publish 6 consecutive weeks

What is proved in the hearing?

o Prove that there is no heir

Where does the property go?

o Personal property to municipality or city where he last

resided

o Real property municipality or city where it is located

o What if the deceased never resided in the Philippines?

Whole estate assigned to municipality or city where it

is located

o

Purpose of escheated estate: 1. Public school in city/municipality

2. Charitable institutions and centers in

city/municipality

What is the other option?

o Can establish permanent trust

If you are an heir up until when can you still recover an escheated

property?

o Five years from the date of such judgment

o Can a donee (but not an heir) recover the property?

Yes, he is an interested party, because he claims a

right to the escheated property. He may appear oroppose petition for escheat.

What is the effect of a judgment in escheat?

o Conclusive against all persons with actual or constructive

notice

Tan:

o Solicitor General is now the one that files the complaintbut

then, allow City (old Rules)

o 39 years of absence without hearing of that person: enough

can presume death


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Guardianship

Where do you institute petition for guardianship?

o Where the minor or incompetent is found

o Ex. Judge from La Union cannot take cognizance of case over

incompetent living in Pampanga

In what particular court, if the person is a minor (over person or

property)?

o Family courts

For incompetent (not a minor)as regards property:

o Follow 300K/400K usual rule

o This shows if MTC or RTC

If over person of incompetent (not a minor) regardless of amount

of property:

o Always RTC

Who can petition?

o Relative, friend, other person, or DSWD

o

Can the minor himself do so? Yes, as long as he is at least 14 years old

What are the grounds?

o 1. Death, continued absence, incapacity of parents

o 2. suspension, termination, deprivation of parental authority

o 3. remarriage of surviving parent, if latter is unsuitable to

exercise parental authority

o 4. best interest of minor

Must a parent still apply for guardianship?

o If the property of the child exceeds P50K you need to petition

for guardianship over the property

When can the guardian sell or encumber the property of the ward?

o 1. The property of the estate is insufficient to maintain the ward

and his family

o 2. For education of the ward

o 3. For the benefit of the ward

Need not explicitly state that the alienation is for the

benefit of the ward, but one can show it by implication

by establishing that it is for the wards benefit

o How long does the order of sales effectivity last?

1 year from the order

o What else can the proceeds of the sale be approved for?

Investment of the same

Who is preferred to become the guardian?

o The natural parent of the ward

Parent is preferred over other guardians unless there

is good reason shown. Mere allegation of moral

unfitness is not valid per seo In default

1. Surviving GP; if several, court chooses

2. Older brother or sister over 21 unless unfit/DQ

3. Actual custodian over 21 unless unfit/DQ

4.Any other person, in courts sound discretion

Procedure:

o 1. Petition

o 2. Time and place of hearing set

o 3. Give notice to all interested persons

o 4. Hearing conducted

o Is publication needed?

No. This is not an affair that the public should beapprised of.

What happens before hearing?

o Social worker does case study on child

Who are incompetents?

o 1. Suffering from civil interdiction

o 2. Hospitalized lepers

o 3. Prodigals

o 4. Illiterate deaf and dumb

Ex. Grade 3, mind of 6 year old, illiterateshows

incompetence

o 5. Unsound mind

o

6. Those who cannot without outside care take care of their

property

To what situation can a spouse apply for guardianship over

property of the other spouse?

o Family Code article where the spouse automatically assumes

administration over his/her spouses property only applies to

absent, separated-in-fact, abandoned spouse

o DOES NOT apply to incapacitated spouses (here, stroke)

What is the extent of guardianship powers?

o Power of guardianship does not include alienation


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o But heirs receipt of proceeds is deemed a ratification

Can the guardianship court pass upon issues of ownership?

o No. The guardianship court cannot pass upon issues of

ownership. It is the duty of the guardian to bring the proper

action.

What are the conditions of the bond of the guardian?o

1. Inventory within 3 months of appointment or discovery of

property

o 2. Faithfully execute duties of trust for wards best interest

o 3. Render account: a) upon order of the court or when required

by the rules, and b) upon termination of guardianship

Contrast with settlement of estate:in settlement,

account is every one year

o 4. Perform all orders of the court

What are the duties of the guardian?

o 1. Settle accounts of the ward

o 2. Demand, sue for, and receive all debts due

May compound or discharge, on receiving fair andjust dividend of the estate and effects

o 3. Appear and represent the ward in actions and special

proceedings

Can the guardian join in partition proceedings of property held by

the ward as a joint or co-owner?

o Yes, but after hearing only, with notice to the relatives of the

ward and upon establishing necessity and propriety of the

action.

When is the guardianship required to render an inventory to court?

o 1. 3 months from appointment

o 2. 3 months from discovery of property not included in the

original inventory

o 3. Inventory and account from application of an interested

person

Grounds to terminate guardianship?

o 1. Became insane or otherwise incapable of discharging his

trust

o 2. Wasted or mismanaged the estate

o 3. Failed to render account or return for 30 days

o 4. Resigned from position

Trustees

Who is a trustee?

o Can be made to carry in effect the provisions of a will or a

written instrument

o Appointed/confirmed in the probate court (if carrying out a will)

or the RTC where the property is located (for written

instrument)

When can the court appoint a new trustee under a will or under a

written instrument?

o 1. When the testator in aw ill omitted to appoint a trustee in the

Philippines, and such appointment is necessary to carry into

effect the wills provisions

o 2. When a trustee under a written instrument declines, resigns,

dies, or is removed before the object of the trust is

accomplished

o What is the power of the new trustee?

Same as the powers of the original trustee What if a trustee for property in the Philippines is appointed by an

instrument abroad?

o Must apply for appointment as trustee before the local courts,

or else, the trust can be declared vacant

What are the conditions of the bond?

o 1. Make an inventory of all real and personal property

belonging to him as trustee

o 2. Faithfully discharge trust according to law, will, or instrument

o 3. Render account at least once a year, and upon court order

o 4. Upon expiration of trust, settle accounts in court and deliver

property

What are the requisites for the removal and resignation of the

trustee?

o 1. Petition by party beneficially interested in the trust

o 2. Notice to the trustee

o 3. Hearing

What are the grounds for removal and resignation of the trustee?

o 1. Essential to interest of petitioners

o 2. Became insane

o 3. Incapable of discharging the trust or is unsuitable therefore

o 4. Resignation


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o 3. Sexual assault or violence

o 4. Abandonment/failure to comply with obligations

Who may rescind the adoption?

o Just the adoptee. The adopter can never rescind the adoption.

What is the effect of rescission?

o

1. It restores the parental authority of the biological parents, ifthe adoptee is still a minor or incapacitated

o 2. The amended birth certificate is cancelled

o 3. Rights to succession are restored, but not as far as there are

already vested rights

When is inter-country adoption allowed?

o Only as a last resort, and when it is in the best interest of the

child.

Case study: There was a child who was left outside of the house of a

childless couple and having noticed that no one is claiming the child,

the couple adopted the child. But they secured a birth certificate and

filled in the childs details(simulation of birth), without applying forlegal adoption. The child grew up and when she applied for a visa to

the US, she was denied because she was found to not be the natural

child of the mother (who is sterile). What are implications and what

actions must be taken to correct the situation?

1. Petition for correction/cancellation of entries, because the birth

certificate is false

o Where do you file it?

The place where the entry was made or recorded

o Who are the parties; who are impleaded?

Only the civil registrar (under the ROC)

Under jurisprudence, include the child as well and thedeclared parent of the child, and those whose

hereditary rights are affected (ex. Grandparents)

2. Get certification that the child was neglected or abandoned

o Do you need a judicial declaration that the child was

neglected or abandoned?

o NO. You just need a certificate from DSWD from an

administrative proceeding. (Take note of this; new law and

never asked in the Bar.)

3. Legal adoption

Habeas corpus, Writ of Amparo

When can you file a Petition for Habeas Corpus?

o There must be 1. ARREST and 2. DETENTION

o What if it is mere disappearance?

H.C. does not apply

File a criminal case

What must be the nature of the arrest/detention?

o It must be unlawful or illegal. It cannot be pursuant to a valid

arrest/detention.

Detention in violation of the right to speedy disposition of cases,

and the petition for such is denied by the court, what can you do?

o File petition for Writ of H.C.

What is post-conviction petition for HC?

o Under rules on DNA evidence, even after conviction, if the

testing shows that there is no basis for the

conviction/detention, you can file petition for HC

Where can WHC be filed?o RTC, CA, or SC

What is WHC on custody of minors?

o Not a regular WHC. Unlike in ordinary WHC where there is no

pre-trial, there is pre-trial here.

o See example below.

o X married Y, but were separated in fact. X requested Y for

some time with their child Z. Y allowed, but X never

returned Z. What is the remedy?

Habeas corpus on custody of minors.

What is the difference between preliminary citation and a

peremptory writ of HC?

o

Preliminary citation:

requires respondent to appear and show cause why

the peremptory writ should not be granted

o Peremptory writ:

unconditionally commands the respondent to have the

body of the detainee produced before the court

When is a WHC disallowed or discharged?

o 1. Person is lawfully detained or convicted


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o 2. Jurisdiction appears after the writ is allowed; cannot use

defect in the process, judgment, or order as reason to

discharge the writ

What is the Writ of Amparo?

o Also instituted in the RTC, CA, SC

o

Can be filed at any time of day or nighto Does not just extend to actual or committed acts, but also to

threatened acts

o Who can file it?

Not just the victim or family members

Extends to religious institutions or NGOs

What is the Writ of Habeas Data?

o Also instituted in RTC, CA, SC

Contents of petition for HC?

o 1. Person imprisoned on whose behalf petition is filed

o 2. Officer or person under whom he is restrained or

imprisoned; if unknown, officers assumed appellation; person

upon whom writ is served is deemed the person intendedo 3. Place where he is detained if known

o 4. Copy of commitment or cause of detention of the person if it

can be produced without impairment of efficiency of the

remedy; if without legal authoritystate it

Return of WHC:

o 1. Whether or not he has the party in his custody or power, or

under restraint

o 2. If he does, the authority and cause thereofwith a copy of

the writ, order, or process

o 3. If the person cannot be produced, the nature or gravity of

sickness or infirmity which is the reason why he cannot be

produced in court without danger

o 4. If t ransferred to another person: to whom, for what cause,

when, and under what authority

Contents of petition for amparo?

o 1. Personal circumstances of petitioner

o 2. Name and personal circumstances of respondent, or

description/assumed appellation

o 3. Right to life, liberty, security threatened by respondent

(affidavit detailing how)

o 4. Investigation conducted, and identity of investigator

o 5. Actions and resources taken by petitioner to determine fate

of aggrieved, and identity of respondent

o 6. Relief prayed for

Return of WOA, within 72 hours:

o 1. Lawful defenses to show no violation

o

2. Steps or actions taken by the respondent to determine fateof aggrieved party and persons responsible

o 3.All relevant information in respondents possession

o 4. If public official or employee, the actions taken to:

a) verify identity of aggrieved party

b) recover and preserve evidence

c) identify witnesses

d) determine cause, manner, location, time of death

or disappearance

e) indentify and apprehend the person or persons

involved

f) bring suspected offenders to court

o

Is a general denial of allegations allowed in WOA? No, unlike in Habeas Corpus.

o What is the omnibus waiver rule in WOA?

All the defenses not raised on the return are deemed

waived

What is the consequence of failure to file return?

o Ex parte hearing

Can there be institution of separate civil, criminal, or

administrative action notwithstanding a petition for WOA?

o Yes.

What is the effect of filing a criminal action?

o The petition for WOA is always consolidated with it, whether

filed ahead or later

What is the quantum of proof required for petition for WOA?

o Substantial evidence

o On the defense?

Private persons: ordinary diligence in duties

Public officials: extraordinary diligence in duties

Habeas Corpus Amparo Habeas DataRemedy To all cases of

illegal confinementAny person whoseright to life, liberty,

same asamparo, but the


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or detention: 1)person is deprivedof liberty, or 2)rightful custody ofany personwithheld from the

person entitledthereto

and security isviolated/threatenedby unlawful act oromission of publicofficial, publicemployee, or private

individual/entity

person must beengaged in 1)gathering, 2)collecting, 3)storing data orinformation

regarding theperson

Petitioner Party for whoserelief it is intended,by some otherperson on hisbehalf

Aggrieved party, orany qualified personor entity in the orderin sec. 2: (1.Immediate familymember, 2. Relativeto 4

thdegree of

consanguinity, 3.Concerned citizen,org, assoc, etc.)

In general:aggrieved partyExcept for EJkillings andenforceddisappearances:1) immediatefamily, 2) indefault, relativeto 4

thdegree of

consanguinity

N.B.noconcernedcitizen, etc.

Venue SC, CA, or SB

RTC:1) Plaintiffs

residence2) Defendants

residence3) Where non-

residentdefendant is

found

SC, CA, or SB:Manila

RTC where theviolation occurred, orany of its elements

N.B.if the writ isissued by a highercourt, the writ is

returnable to it or anyof the lower courts(e.g. for SB, eitherthere or RTC. ForSC, either CA, SB, orRTC)

SC, CA, or SB:Manila

RTC: 1) wherepetitionerresides, 2)where defendantresides, or 3)has J over placewhere data is

gathered, etc.

Issuanceof writ

Immediately onceit appears

When in its face,ought to issueimmediately

Same asAmparo, butwithin 3 days

Summaryhearing

Upon filing ofreturn

Not later than 7 daysfrom issuance

Not later than 10days from

Why is it like this?This way, its notdependent on thefiling of the return

issuance

Service Served on person

to whom it isdirected; if cannotbe found or notwith custody, thento person withcustody

If cannot do it

personally, thensubstituted service

Same as WOA

Return Signed and swornto if prisoner notproduced

N.B.no periodspecified for return

Verified written return

Within 5 days fromservice, withoutextension

Same as WOA

Penalties Clerk who doesntissue writ.Person fails tomake return,makes false return,refuses to deliverperson demanding(within 6 hours) thecopy of warrant ororder ofcommitment

Clerk who doesntissue writ.Deputized personwho doesnt servethe writ.Person fails to makereturn, makes falsereturn, ordisobeys/resistslawful court order.

Same as WOA

Interimreliefs

1) Court mayadjourn forgood cause

and makeorder for safekeeping ofperson

2) If personcannot beproduced dueto graveillness, courtmust besatisfied that

1) Temporaryprotection order

2) Inspection order

(5 days)3) Production order

(of documentaryor object orelectronicevidence)

4) Witnessprotection order

N.B.2 and 3 areboth available to


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he cannot beproducedwithout danger

respondent as well

Judgment Discharge fromconfinement

Judgment within 10days. If proved bysubstantial evidence,

grant reliefs asapplicable.

Standard ofevidence?

Substantial

evidenceDiligence requiredfor defense?

Private person:ordinarydiligence

Public official:

extraordinarydiligence

Same asAmparo, but inaddition, the

judgment mustbe enforced bysheriffs or courtofficers within 5days

Appeal Ordinary appeal,48 hours fromnotice of judgment

Rule 45petition forreview on certioriariwith peculiarfeatures:

1) Appeal mayraisequestions oflaw, fact, orboth

2) Appeal 5workingdays from

notice ofjudgment

3) Samepriority ashabeascorpuscases

Archiving rule:If court cannotproceed due to

Same as WOA

failure of petitioner orwitnesses to appeardue to threat to lives,it should NOTdismiss the petition;just archive the case.

Revival rule:Court conductsperiodic review ofarchived cases andrevives them if theycan proceed.Dismiss case withprejudice if 2 yearshave lapsed fromarchival.

Separateactions

Allowed

When there iscriminal case, cannotfile for writ. Butreliefs allowed.

Always consolidatewith the criminalaction

Same as WOA

Change of name (103)

When can you ask for change of name?

o 1. Name is ridiculous, dishonorable, extremely hard to

pronounce

o 2. Change will avoid confusion

o 3. One has been continuously known as that name

o 4. Surname causes embarrassment and the desire to change it

is not for a fraudulent purpose

o 5. Consequence of change of status

Can a person have the childsFilipino middle name dropped for

the purpose of integration with the Singaporean community?

o No.

Where to file for change of name?


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o Surname: always in the courts

o First name:

Local civil registrar:

If clerical

If any of three grounds in section 4 of RA

9048 Courts:

Everything else

What to file?

o 1. That petitioner is a bona fide resident of province where

petition was filed for at least (3) years prior to the date of such

filing

o 2. Cause for which change of petitioners name is sought

o 3. Name asked for

RA 9255grounds by which an illegitimate child can use the

fathers surname:

o 1. Filiation recognized by father in civil register

o

2. OR Admission in public document or private writingso

N.B. But the father can institute action for non-recognition

anytime during his lifetime

Cancellation or correction of entries in the civil registry (108)

Notice given to:

o LCR

o All persons interested

How long is publication?

o 3 consecutive weeks (once a week)

Tenor of proceedings: Summary, but not if there are substantial

changes: adversarial

o For instance, if it is nullity or annulment, then it must be in

adversarial proceedings

o

But see RA 9048

Removed from ambit of 108 typographical and clerical

errors, and change of first name/nick name under the

three stated grounds

Differentiate sex change from intersex persons and implications

on change of name:

o Cagandahan case: natural change in sexallowed change of

sex and name

o Silverio case: sex change proceduredid not allow

103 108 RA 9048Name of law Change of name Correction or

cancellation ofentries in civilregistry

Clerical Error Act

Subject matter Change of fullname(substantialcorrection)

Change orcorrections incivil entries(substantial)

Change of firstname, nickname, and civilentries(typographical orclerical errors)

Who may file Person desiringto change name

Personinterested in anymatterconcerning

recorded civilstatus of person

Person withdirect andpersonal interestin correction

Venue RTC of provincewhere petitionerhas resided thepast 3 years;City of Manila:Juvenile andDomesticRelations Court

RTC of city orprovince wherethe registry islocated

1) LCR of city ormunicipalitywhere record is2) LCR of placewhere interestedparty is residing3) Phil.Consulates

Petitioncontents

1) petitioner isbona fideresident (3

years)2) cause3) name askedfor

SAME as 103 1) factsnecessary toestablish merits

2) particularerroneous entry

Grounds 1) nameridiculous,tainted withdishonor,extremelydifficult towrite/pronounce2) consequence

Good and validgrounds

1) Nameridiculous,tainted withdishonor,extremelydifficult towrite/pronounce2) new first


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166

of change ofstatus3) necessity toavoid confusion4) continuousused and known

by Filipino name,unaware of alienparentage5) sincere desireto adopt Filipinoname to erasesigns of alienage

name ornicknamehabitually andcontinuous used,and publiclyknown

3) avoidconfusion

Proceeding Judicial Summary (butadversarial ifthere aresubstantialchanges)

Administrative

Notice Once a week for3 consecutiveweeks innewspaper(notice ofhearing)

Not 30 daysprior to election;not within 4months of lastpublication ofnotice

Once a week for3 consecutiveweeks innewspaper(notice ofhearing)

Once a week fortwo consecutiveweeks (publishaffidavit)

Posting

Appeal CA CA Civil RegistrarGeneral

Family home

Do you need a judicial declaration of a family home?

o No more. Its automatically constituted, under the Family

Code.

Absentees

What is the purpose of the rule?

o 1. For the declaration of a representative or

o 2. Declaration of absence and appointment of a trustee or

administrator

Who may file?

o 1. Spouse present

o 2. Testate heirs (must present an authentic copy of a will)

o 3. Intestate heirs

o 4. With interest over absentees property hinged on suspensive

condition of death

When can it be filed?

o 1. Two years from disappearance and without news about

absentee

o 2. Five years, in case he left an administrator in charge of his

property

Appeal

Appeal can be taken from what orders or judgments in settlementof estates?

o 1. Allowance/disallowance of wills

o 2. Determines who are the lawful heirs of a deceased person

or distributive shares

o 3. Allows/disallows a claim, or claims presented on behalf of

the estate to offset a claim against it

o 4. Settlement of account of executor/admin/guardian

o 5. Final determination in lower court of rights of the party

appealing

o 6. Final order or judgment rendered in the case, affecting

substantial rights of appealing person, unless it is an order

granting/denying MBT/MR Can the appointment of a Special Administrator be subject of

appeal?

o No.

What is the mode of appeal?

o Record on appeal

Venue Reglementaryperiod

Publication rule

Settlement of Resident: where Record on EJ settlement: 3


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167

estate residing;

Non-resident:where propertyis

appeal30days

weeks pub (offact ofsettlement)

Summarysettlement: 3

weeks pub (oftime and date ofhearing)

[3 weekssuccessively forproving will]Postal service20 days beforehearing,personal service10 days beforehearing

Claims: 3 weekssuccessively,posted: 4 publicplaces inprovince, 2 inmunicipality

Escheat Court in provinceof last residence

Non-resident:where estate islocated

Record ofappeal60days

Once a week for6 weeks(hearing thoughis at least 6months afterorder of court)

Guardianship Person of minor

in Family courtwhere minorresides ;

Property ofminorsame

Person ofincompetent, notminorRTC ofresidence

Record on

appeal30days

None

Property ofincompetent notminorfollow300k/400k rule

Adoption Venue: Familycourt of the

province or citywhere theadoptive parentsreside

Record onappeal30

days

None

Habeas corpus SC, CA, SB

PlaintiffsresidenceDefendantsresidence

ORNon-residentdefendant,where propertyfound

Ordinary appeal,48 hours fromnotice

None

Amparo Manila: SC, CA,SB

RTC withjurisdiction overwhere violationor any of itselementshappened

Rule 45, but canraise issues oflaw and fact, andwithin 5 days

None

Habeas data Manila: SC, CA,SB

PlaintiffsresidenceDefendantsresidenceORRTC withjurisdictionwhere data isgathered,collected, stored

Rule 45, but canraise issues of

law and fact, andwithin 5 days

None


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168

Change ofname

RTC of plaintiffsresidence for 3years

Manila: Juvenileand Domestic

relations court

Record onappeal

Once a week for3 weeks

Correction orcancellation

RTC withjurisdiction overplace of registry

Record onappeal

Once a week for3 weeks

Clerical ortypographicalerror9048

LCR whererecord is,LCR ofresidence, orPhil. consulate ifnonresident

Civil RegistrarGeneral

Once a week for2 weeks(affidavitpublished)

ENVIRONMENTALCASES

What is the scope and applicability of the rule?

o Involves all civil, criminal, and special proceedings cases

pending before courts involving enforcement and violation of all

environmental and related laws

o Ex. Forestry code, Water code, Sanitation code, LLDA act,

Toxic substances and hazardous waste act, IPRA, Mining act,

Fisheries code, Clean Air act, Chainsaw act, etc.

Civil Procedure

What is the rule on TROs?

o Except for the SC, no court can issue a TRO or preliminary

injunction against lawful acts of government agencies

enforcing environmental laws

What happens in pre-trial?

o The parties are under oath in all PTCs.

o The judge must exert best effort to arrive at a settlement of the

dispute.

o What is a consent decree?

It approves the agreement made by the parties in

accordance with law, morals, public order, and public

policy to protect right to balanced and healthful

ecology

What are the prohibited pleadings and motions?

o 1. Motion to dismiss complaint

o 2. Motion for bill of particulars

o 3. Motion for extension of time to file pleadings

Except to file an answer, where at most15 days can

be given

o 4. Motion to declare defendant in default

o 5. Reply and rejoinder

o 6. Third party complaint

What is a Temporary Environmental Protection Order (TEPO)?

o It is issued when the matter is of extreme urgency and

applicant will suffer from grave injustice or irreparable injury

o Who may issue it?

Executive judge of multi-sala court or presiding judgeof a single-sala court

o How is it issued?

Ex-parte

o How long is it effective?

72 hours from date of receipt, unless there is

summary hearing within the period to determine

whether the TEPO should be extended until the end

of the case

o When can a TEPO be dissolved?

If it appears after the hearing that its issuance or

continuance would cause irreparable damage to the

party enjoined, and the applicant can becompensated adequately

How is the applicant compensated?

The enjoined party has to file a bond

What reliefs can the court grant in a citizen suit?

o 1. Proper reliefs including protection, preservation, or

rehabilitation of the environment

o 2. Payment of attorneys fees, costs of suit, litigation expenses

o 3. Require violator to submit program for rehab or restoration

of the environment

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Ateneo 2011 Remedial Law (Special Proceedings)

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