SPECIAL PROCEEDING Proceedings.
If, perhaps, the examiner is teaching
NOTE: Declaration of absence and death: There is
no such thing as declaration of death…it should be
absence leading to the declaration of death.
These are the only things which we will be
discussing in Special Proceedings (I will state
them in the order of importance, procedurally
speaking):
1. Settlement of Estates- states the meat of
special proceedings
2. Adoption- although this is already studied in
civil law; it is important because of the new
rule on adoption, not the laws on adoption
(R.A. 3552, the Domestic Adoption Act of
1998 as well as R.A. 8043, the Inter Country
Adoption Law of 1995)…not that because that
is substantive. I am talking of the new rule on
adoption which took effect sometime in
August 2004. I that’s why I think it’s the
second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of
Name and Correction of Entry..again, because
of the new law. So the possibility of being
asked in the BAR is great. (Read also R.A.
9048)
4. Guardianship- practically the same rules of
procedure as settlement of estate..only that in
settlement of estate, the subject is dead unlike
in guardianship, the subject is still alive.
Physically alive, but mentally dead or a minor.
That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special
proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but
relation…trust relation)
All the rest, we will not discuss anymore.
Voluntary Dissolution of Corporations; Declaration
of Absence & Death; Hospitalization of Insane
Persons…(but, I still advise you to read), even the
Constitution of the Family Home.
If I were an examiner, I would definitely ask in
Special Proceedings, Settlement of Estate and next
to Settlement of Estate would be Adoption and
next to that would be Habeas Corpus.
Note that even in last year’s BAR examination
there was no question on special proceedings
because utmost you get only one question for BAR
purposes, one question in Special Proceedings.
Very seldom if you find two questions in Special
special proceedings, then perhaps he will ask you
more questions in the BAR, but ordinarily no…not
that I’m demeaning its importance.
My other consolation is that you are well-versed in
Special Proceedings, that remains to be seen
starting this afternoon.
Remember, Special Proceedings is different from
all other actions, including Special Civil Actions. If
you are asked to define what a Special Proceeding
is, A Special Proceeding is an action other than
an ordinary action, a special civil action, or a
criminal action. That is a correct definition by
exclusion. To be more specific, Special
Proceedings are actions geared or directed
towards the establishment of a right, status, or
a particular fact. The ordinary rules apply here
and more so because there are specific provisions
that distinguishes it from special civil actions
where it has a special rule. Here, no. It has its
own uniqueness. Every Special Proceeding has its
own nuances. For example, because the objective
is the establishment of a right, status, or a
particular fact, summons, here, is ordinarily not
needed. In special proceedings, there is no
defendant, so there is no need for summons.
Summons, as we have studied is the way by which
a court acquires jurisdiction over the person of the
defendant (Rule 14). The only exception is, of
course, Habeas Corpus Proceedings wherein
you name a respondent but the respondent
here is different from a defendant because
summons is not necessary.
Q: So, how does a court acquire jurisdiction over
the case?
A: There is no need for the court to acquire
jurisdiction over the person of the defendant
because there is no defendant. Therefore, the
court should acquire jurisdiction of the case, over
the subject matter. How? Because it is an action
in rem, ordinarily publication. So that is the
uniqueness of Special Proceedings. Publication is
the means by which the court acquires jurisdiction
over the subject matter. It is ordinarily not
initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general
rule, Special Proceedings do not prescribe. There
might be limitations of such periods in some
instances, but ordinarily, they do not prescribe.
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Q: What are the Special Proceedings?
A: Name them according to the Rules starting from
Rule 73-90 Settlement of Estate; Rule 91 Escheat;
Rules 92-97 General Guardians & Guardianship;
Rule 98 Trustees; Rules 99-100 are no longer
applied because they are deemed repealed by the
new rules on adoption, including Rescission &
Custody of Children, these Rules are no longer
applied because of the adoption of the Child &
Youth Welfare Code.
SETTLEMENT OF ESTATE OF DECEASED
PERSONS
When you speak of Settlement of Estate,
immediately what comes to your mind is that
someone died (and that’s the beauty in law…men
live forever in law…they continue in their estate…
There are those who want someone dead because
of his estate. there are also those who want
somebody alive because he has no estate…but
actually, even if you are a pauper or a millionaire,
you always have an estate. So you live forever
through your estate. That estate must be settled).
Q: There are two ways to Settle an Estate:
A: Extrajudicial Settlement and Judicial Settlement
of Estate. In, extrajudicial settlement, the rules
speak of settlement through Affidavit of Self
Adjudication and the other way to settle it is by
extrajudicial partition. Those are the extrajudicial
manner of settling the estate. Extrajudicial
settlement proper is by agreement of the parties..
extrajudicial settlement is distinct from partition.
When you go to judicial settlement, you have the
first which is Summary Settlement Sec. 2, Rule 74,
which is very practical and then judicial partition
under Rule 61, that is a mode of settlement and
then you have the conventional mode of
settlement of estate. We can even add a fourth
kind, whish is also a mode of settlement of
estate…Escheat proceedings under Rule 91.
The conventional mode settlement is either testate
or intestate. The testate can either be with the will
annexed or without the will annexed. The
intestate, of course, there is no will. But both
testate and intestate may also be done either in
the Philippines or outside the Philippines.
Q: What are the requirements for an Affidavit of
Self Adjudication?
A:
1. There is a will
2. No debts;
3. Only one heir.
Q: Suppose Mr. X, who died, was known to
everyone to have one child but later on, it was
found out that he had other illegitimate children.
What will happen to the affidavit of self
adjudication? Is there any finality?
A: NO. Even if the properties have already been
distributed, they aer still subject to claims.
Q: How do you go about in making an Affidavit of
Self Adjudication?
A: The word suggests already that it is an
affidavit…so, how do you formulate an affidavit?
You simply state in your affidavit that your father
or your mother died; and that he/she left the
following properties; and that you are the only
heir of your parent; and that the estate are such
and such, valued accordingly; and that they are
found there (location of property)..you simply
submit that to the Register of Deeds and the
Register of Deeds will act on it only after you
comply with the requirement of publication and if
there are personal properties belonging to the
estate, put up a bond according to the value or
upon the discretion of the register of Deeds.
(extrajudicial ha…the court has no participation
whatsoever here) You simply submit to the
Register of Deeds, the Register of Deeds acts on it
and if there is already publication, once a week for
3 consecutive weeks in a newspaper of general
circulation, the Register of Deeds will simply
transfer the title in favor of the affiant.
The other mode of extrajudicial settlement is
extrajudicial partition...that is not under Rule 69
because under Rule 69 is judicial partition…here,
the parties agreed, but take note that there is also
no will and there are also no debts and even if
there are debts, there is sufficient money to
answer for those debts which are reserved…the
money is reserved to answer for debts…so you can
partition among and between yourselves these
properties, provided all of you are of age. If one is
a minor, he is duly represented…ordinarily, you
ask the court for the appointment of a guardian ad
litem. This form of extrajudicial settlement is
similar to Partition…there is really no
distinguishing feature between extrajudicial
partition and extrajudicial settlement.
Jurisprudence tells us that any act between and
among persons that would lead to the division of
property is a form of partition or settlement…any
act that would terminate indivision would be
division.
2
In affidavit of self adjudication, of course you have
to support your allegations with documentary
evidence (like for example, that you are the only
heir, this can be proven through your birth
certificate and also the marriage contract and the
properties you wish to adjudicate unto yourself
should be established by Titles or muniments of
titles).
Judicial Settlement refers to Conventional:
Rules 73-90. Summary Settlement of Estate is
very impractical because up to now the value of
the estate is still P10T (P10,000) but you will note
that there is still a requirement for publication (so
if you have it published once a week for 3
consecutive weeks, ubos na yung ten thousand
mo).
RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat
tells us that if a person dies without a will, without
an heir, and no debts, then the Office of the
Solicitor General will file, under the directive of
the President of the Philippines, will file an
Escheat Proceeding. But if it happens that during
the pendency of the proceeding, a will pops up,
then the proceeding is discontinued. If an heir
pops up, then the proceeding may be suspended
and establish your right…otherwise, after the
hearing, the property will go to the government.
This escheat proceeding is founded on the theory
that all lands belong to the State…the Regalian
Doctrine that you studied under LTD (Land Titles
& Deeds)… all lands belong to the State and he
who claims otherwise has the burden of proof so
after the escheat proceedings, the property
belonging to the estate will go to the city or
municipality where it is found.
So if the proceeding is in Manila, but the property
escheated is in Calamba, the property escheated
located in Calamba will go to the City of Calamba
and not to the City of Manila. The same thing with
personal property…where it may be found and the
Rule is very specific that the property will be spent
for charitable purposes, for educational purposes,
so on and so forth. So that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat
because that was given in the BAR 5 years ago (sa
dami daming pwedeng ibigay sa Special
Proceedings, yun lang ang binigay). This speaks of
REVERSION. In other words, the property was
acquired by an individual in violation of the
Constitution. Under the Constitution, any person,
even foreigners who were former Filipinos, can
now acquire property in the Philippines and that
was given more strength because of the Dual
Citizenship Law.
Q: Which court has jurisdiction over Petitions for
Settlement of Estate?
A: Under RA 7691, inferior courts now have
jurisdiction over settlement of estate, whether
testate or intestate. So it is not under the provision
which speaks of actions involving title to or any
interest in property but it is a direct provision of
the law that settlement of estate, whether testate
or intestate, may be taken cognizance of by
inferior courts, depending on the gross value
(hindi assessed). Remember, there is another
provision under BP 129, the basis of which is the
“assessed value”…dito, gross value of the estate
and the location is determinative somehow of
jurisdiction because if it is outside Metro Manila,
less that P300T and within Metro Manila, P400T…
so suppletory character lang yun.
The old books speak of Courts of First Instance
(RTC), exclusively…hindi na yun.
RULE 73 VENUE AND PROCESS.
Q: Is settlement of estate limited to the estate of
Filipino Citizen?
A: No.
Q: If an American was in the Philippines because
he was a member of the Armed Forces, who joined
the Balikatan Forces in Mindanao and he died
here, where should the settlement of estate be
done? Is it the place of one’s death which is
determinative of the venue? Suppose one had 5
residences because he had 5 wives?
A: This is a very confusing provision because the
title is “Venue & Process” but the word ‘venue’ is
never mentioned. On the other hand, the word
jurisdiction is mentioned three (3) times.
Q: So, is the last residence of the decedent a
matter of jurisdiction or a matter of venue?
A: It is a matter of venue so you cannot question
it.
3
Q: Suppose Mr. X, a Filipino citizen residing in
Cebu City died at St. Luke’s Hospital, Quezon City,
where should his estate be settled?
A: In Cebu because it is the place of the final
residence of the decedent.
Q: Suppose the heirs filed a petition for
settlement of the estate in Quezon City, is the
venue properly laid?
A: No.
Q: So, what happens to the case?
A: The settlement must continue because venue is
not jurisdictional.
Let me emphasize to you that in civil cases,
including special proceedings, venue is not
jurisdictional, unlike in criminal cases, venue is
jurisdictional and from what we have learned
under Rule 4 of the Rules of Court, venue may be
waived.
So, if there is no opposition, there is no question as
to the petition filed by anybody for the settlement
of the estate of Mr. X who is a resident of Cebu, the
petition is filed in Quezon City, the issue is not
jurisdiction but only of venue. But considering
that there was no opposition, then the petition for
settlement must continue.
Sec. 1 there does not speak of jurisdiction.
Jurisdiction here is conferred by law and RA
7691 confers that depending on the value of
the gross estate, which can either be the MTC
or the RTC.
Q: What is Residence?
(You must have come across the leading case,
Cuenco, et. al vs. Cuenco, cited in your book (it has
to cited in your book) because that is a very
leading case, also the case of Fule, et al. vs. CA,
these are the cases about venue and jurisdiction…
emphasizes these cases cited in all books. Eusebio
vs. Eusebio, that is also cited in your book… These
are questions about the conflicting rules on venue
and jurisdiction.)
A: It is now settled (because of there cases) that
residence is only a matter of venue. It is not a
matter of jurisdiction.
This case of Cuenco is about Senator Cuenco. That
Cuenco Street in Quezin City, parallel to Espanñ a or
Quezon Blvd. He was a resident of Cebu but also
had a house in Qezon City because he was a
member the Senate. When he died in Quezon City,
his residence was in Cebu. When he died, he was
already a widower at the time, so he had two
families. The first family with his first wife, and
the second family with his second wife. His
second wife, staying with him in Quezon City, filed
a petition for the settlement of his estate in the
RTC (Then CFI) of Q.C. After the 9- day novena for
his demise, the heirs of Senator Cuenco, filed a
petition for settlement of his estate in Cebu. This
reached the SC. The issue was in fact wrong:
Which court has jurisdiction? Mali. It is not a
matter of jurisdiction but only of venue. But the
greater error here is not the error of the
petitioners but the error of the Court. Why?
Because the Q.C. Court on its own (motu propio)
said “we are going to give way to the court in Cebu
to settle the estate.” That cannot be done because
under the Rule, the court which first takes
cognizance of a petition for settlement of estate,
takes it to the exclusion of all other courts. And so,
which court has jurisdiction? Both courts have
jurisdiction actually, but because of the Rule, since
it was first filed with the Q.C. Court, it was already
taken cognizance of by said court in Q.C. to the
exclusion of all other courts, including the Cebu
Court. That is why if ever the court cedes its
authority in favor of the Cebu Court, that is wrong.
It should have been correct if anybody interested
in the petition files a motion to dismiss on the
ground of improper venue but there was none.
In one of the Bar Exams using Cuenco vs. Cuenco,
way back in 1992, this was treated by the
examiner saying that a motion to dismiss was filed
with the Cebu Court and the Cebu Court granted it.
Wrong. Why? Because the Cebu court did not
acquire jurisdiction because the petition was first
filed in Q. C. and there can be no dual jurisdiction
here because the Rule says: the court acquires
jurisdiction to the exclusion of all other courts.
This case was followed by the case of Eusebio vs.
Eusebio and finally settled in the case of Fule vs.
CA, a 1975 case. Philippine reports pa ito. If you
want to read it, you can find it in the Philippine
Reports. But Fule, you find it already in the SCRA.
Is that clear? Take note of that doctrine because
that is very basic in Settlement of Estate. Sec. 1 of
the Rule there does not speak of jurisdiction but
only of venue. In Fule it has been settled that
the residence is the actual place of habitation.
So that if a person has two (well nagayon, hindi
lang two, marami, apat, lima, anim..tingnan nyo si
Pacquiao, hindi na malaman kung saan sya
4
resident, Manila, Gensan.. hindi na malaman.. But
if only Pacquiao studied law, he would not have
run for any position in the first place… had he
studied law, he would not be a millionaire in the
first place.) Fule settled that residence is the place
of actual habitation or it may not be the place of
actual habitation, provided there is animus
manendi (intent to remain) and animus revertendi
(intent to return). Kaya pag yung isang lalaki,
mayron legal na asawa, mayron pang kerida,
mayron pang kabit, at mayron ding scholar, in
different houses, the residence is that of the
original. Why? Because there is animus manendi
and animus revertendi. In all other residences,
there is only animus amare (intent to love)… so
that is regarding this Section 1.
Let us go now regarding these two: It can be
testate or intestate. You know testate, in other
words, there is a will. Intestate, there is no will.
The distinction, regarding these two will give you
also the distinction between an executor and an
administrator.
Q: What is the distinction between an executor
and an administrator?
A: The executor is the one appointed by the
decedent as embodied in the will. The
administrator is the one appointed by the court if
there in no will, or if there is a will but does not
designate an executor, or even if there is an
executor, the executor refuses to accept the trust
or fails to put up a bond… These are the
requirements: He is either not qualified; he fails to
accept the trust; or he fails to put up a bond so an
administrator may be appointed.
Q: An administrator is of two kinds, what are
they?
A: Rule 80
1. Special Administrator ( also of two kinds):
With the will or Without a will annexed;
2. Regular Administrator
Q: In what instances may the court appoint a
special administrator?
A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of
the estate he represents.
Q: So, when you go to testate, why is it here that
they are of two kinds: with the will or without a
will annexed? How would you explain that? Kailan
nangyayari ito? If you are a custodian of a will of
the decedent, what is your obligation?
A: To deliver to the court the will within 20 days
after the death. (Sec. 2, Rule 75)
Q: Are you bound to file a petition?
A: No. The obligation there is only to deliver the
will. But if you do file a petition, because you are
the custodian of the will, you must have an interest
in the estate. You may either be the named
administrator, a devisee, a legatee, or a creditor,
and with more reason, if you are an heir, you have
an interest. If you are in the custody of the will,
and you filed a petition for settlement of estate,
you have to attach the will in your petition.. But if
you are not in custody of the will and you are
interested in the settlement of the estate, you
simply file a petition without the will annexed.
In many instances, I was telling you that
settlement of estate is the best example of
multiple appeals, diba? Because in the settlement
of estate there are several stages.
Q: If it is a testate proceeding, what is the first
stage?
A: Probate of a will.
Under this lesson on a probate of a will, there is
this general proposition that the probate court
(the court probating a will) either the MTC or the
RTC, is a court of limited jurisdiction.
Q: What does it mean when the Rule says that a
probate court is a court of limited jurisdiction?
A: A probate court can only rule on the due
execution of the will and not as to its intrinsic
validity.
This is what you have to understand. Even
lawyers do not realize this. Sabi nila probate court
yan so you cannot question, you cannot raise the
issue of ownership. The probate court ceases to
be a probate court upon allowance or
disallowance of a will but it remains to be a court
no longer of limited jurisdiction. That is why I was
emphasizing on the petition as settlement of
estate and not as a petition for the probate of a
will. Why? Once a will has been probated, that’s
the end of it? No. It is only the first stage in the
testate proceedings. So when the Rule says that
the probate court is a court of limited jurisdiction,
5
only as far as the probate of a will is concerned.
Pagkatapos nun, the court is no longer of limited
jurisdiction because it has to go…appointment of
the administrator or executor, approval of the
accounting, approval of the inventory, then
payment of debts..papaano limited pa yun? No
longer.
So as a probate court, the court is limited to the
issue of authenticity and due execution, but you
do not transfer courts after the will has been
probated, after the will has been allowed or
disallowed which is a final resolution which is a
final order or resolution of the court which is
appealable. But the appeal here is by record on
appeal because it is multiple appeal. The court
now is no longer of limited jurisdiction because it
is no longer a probate court.
Q: Ano ba ang end of settlement of estate?
A: Distribution under Rule 90. The first stage of
settlement of estate, if it is a testate proceeding is
the probate of the will. That is where the court
has limited jurisdiction.
Q: Why is this so? Why does this issue pop up
here?
A: This is because during probate of the will, in the
very petition, the jurisdictional requirement is
that you have to state what constitutes the estate
and the value of the estate. Jurisdictional facts.
Q: If an oppositor enters the picture, the oppositor
says mali yan because what constitutes the estate
are these properties, but what is stated in the
petition do not belong to the estate, now, can the
court decide the ownership of those properties?
A: No. That is where the limited jurisdiction comes
into the picture. It cannot because the court has
only the duty of discussing whether the will has
been duly executed so this is only as to the
extrinsic validity of a will. The intrinsic will come
much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction
of the probate court. But if the probate court
cannot continue without deciding the issue of
ownership, the issue of ownership being
incidental (intimately related to the issue of
probate) to the probate of the will, must be
decided, but the decision here is not final. It is
only provisional and it can be contested in other
proceedings and the rule on res judicata will not
apply.
In the case of Balaraw which was assigned to you,
that was also the issue involved.
In the beginning, there is no defendant. The
equivalent of a defendant in a probate proceeding
is the oppositor. The oppositor is not only
opposing the probate of the will, but also
settlement of the estate, for one reason or another.
The objective of the settlement of the estate is the
distribution of the estate among the heirs or those
entitled thereto, although not heirs (those persons
named in the will).
Once the court allows or disallows a will, as the
case may be, the nature of the court as a probate
court ceases. Therefore, the issue of limited
jurisdiction no longer applies. Limited jurisdiction
applies only to the authenticity and due execution
of the will.
Q: Once the will is allowed, What does it mean?
A: Rule 76: Allowance of the Will
If Mr. A is accused of a crime of falsification of
documents by forging the signature allegedly of a
testator and during the pendency of the criminal
action, the will allegedly forged by Mr. A was
probated and allowed, the criminal case should be
dismissed because the probate of the court is final
and if not appealed becomes conclusive. Wala na
yung forgery because the probate of a will only
avows the fact that the signature there is
authentic; that there was due execution of the will.
The case against A for falsification should be
dismissed. Suppose he has been convicted, he
shall be released. Supposing he is not released,
your remedy is to file a petition for habeas corpus
because the basis .for restraining his liberty no
longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within
the Philippines.
Q: Suppose a will was executed and allowed
(probated) outside the Philippines, what happens?
A: Go to the next Rule, Rule 77: Allowance of Will
proved Outside of the Philippines and
Administration of Estate thereunder.
6
Q: An American citizen residing in California died
in California, his will was probated in the county
state of San Bernardino. That will has been
allowed in the U.S. Should that will be also
allowed in the Philippines?
A: No.
Q: What should anyone interested in the
allowance of the will in the Philippines do because
the deceased had property in the Philippines?
A: It should be re-probated here and the venue is
in the proper court of any province where the
decedent had property.
This rule shall be read in conjunction with Sec. 48,
Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in
the re-probate of a will?
A:
1. The due execution of the will in
accordance with the foreign law;
2. That the testator had his domicile in
the foreign country and not in the
Philippines;
3. That the will has been admitted to
probate in such country;
4. The fat that the foreign tribunal is a
probate court;
5. That the laws of a foreign country on
procedure and allowance of wills.
6. The fact of death (jurisdictional fact)
of the testator in a place within the
territorial jurisdiction of the court.
These are mandatory requirements. These must
all be established in the Philippine courts. That is
how to re-probate a will which has already been
allowed. Thereafter, the court should appoint an
administrator. The foreign allowance of a will
leads to the appointment of a domiciliary
administrator. Once it is probated in the
Philippines, the court appoints an ancillary
administrator.
Q: Who may petition for the allowance of the will
or who may oppose thereto?
A: Anybody who has an interest in the estate or in
the disposition of the estate of the decedent
Q: What are the qualifications for one to be
appointed as administrator of the estate?
A: Any competent person may serve as executor
or administrator. He is incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to
exercise the duties of the trust by reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving
moral turpitude.
Q: If a man cannot sleep without drinking at least
3 beers before he goes to sleep, can he be
appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an
executor of his estate, may the court appoint
another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto
nya kasi is he would accept the trust if
it is candy flavored);
2. fails to give a bond; and
3. is incompetent.
Q: In the course of the administratorship, when
one has already be appointed, can he be removed?
On what grounds?
A: Yes. Rule 82: Revocation of Administration,
Death, Resignation and Removal of Executor or
Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or
when the court directs;
2. neglect to settle the estate according to the
Rules;
3. neglect to perform an order or judgment of
the court or a duty expressly provided by
these rule;
4. absconding; or
5. insanity or incapability or unsuitability to
discharge the trust.
Q: If a special administrator is appointed because
the regular administrator has a claim against the
estate, what happens to the regular administrator?
A: The regular administrator is not removed by
the appointment of the special administrator
because the regular administrator has a claim
under Sec. 8 of Rule 86. The special administrator
7
only has a specific function which is only to work
on the claim of the regular administrator.
The executor of an executor cannot be appointed
as executor of the principal testator.
Example: Richard is the testator. He appointed
Piolo as his executor. Later on Piolo died. In the
will of Piolo, he appointed Sam as his executor.
Sam cannot be the executor of the estate of
Richard.
Reason: An executor takes charge of the estate. If
you are an executor and you died and you have an
own estate and the executor of your own estate
will now execute the estate of your testator that
appointed you, there will be conflict of interest
(Magkakaroon ng sama sama yung estate.
Magkaka halo halo). To avoid possible corruption
in the administration of one’s estate.
Once a regular administrator is appointed, the
continuation of the duties and functions of a
special administrator will now reside in the
special administrator. But always remember that
if it is an act of disposition or conveyance, which
cannot be done by an appointed executor or
administrator without permission of the court.
You always file a motion for leave of court to sell a
specific property and this is part of your
accounting one year after.
Accounting is one of the principal duties of an
administrator. His first duty is to prepare an
inventory within three (3) months from
appointment and within one (1) year, prepare an
accounting of his administratorship and the bond
that he put up is precisely to answer for the
misadministration .

Q: What are the duties of a special administrator?

A: Sec. 2, Rule 80:
1. possession and charge of the properties;
2. preserve the properties;
3. commence and maintain a suit for the estate;
4. sell only:
a. perishable property; and
b. those ordered by the court
5. pay debts only as may be ordered by the court.

Q: Can he encumber the property of the estate

through lease?
A: It depends. If the lease is not for more than one
(1) year, he can because it would fall under acts of
administration. Beyond that, it is already an act of
disposition

Q: If the court appoints Mr. X as special

administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable
because if you appeal the appointment of a special
administrator, there will be no end to the
settlement of the estate.

The special administrator is likewise required to

put up a bond.

Q: Suppose the testator in naming an executor of

his estate specifically states there that he should
serve as administrator without a bond. Can the
court nonetheless require a bond?
A: Yes. The court has a very wide discretion.
RULE 83 INVENTORY AND APPRAISAL
PROVISION FOR SUPPORT OF FAMILY

8

Q: Who are entitled to allowance during
proceedings?
A:
1. legitimate surviving spouse; and
2. children of the decedent (legitimate &
illegitimate children)
Relate to Art. 194, Family Code: Children, even if
18 years of age are still entitled to support from
the estate.
Read Ruiz Case
RULE 86 CLAIMS AGAINST ESTATE
Q: What may be claimed against the estate?
A:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
Q: Suppose they are not due yet, can they be filed
against the estate?
A: Yes.
Q: Suppose they are not yet due?
A: Yes…whether due, not yet due, or contingent,
you can file against the estate.
Q: When do you file it?
A: Not more than 12 months nor less than 6
months after the date of first publication.
Otherwise it is deemed waived. (STATUTE OF
NON- CLAIMS)
STATUTE OF LIMITATIONS: prescriptive period
in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before
the CA?
A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition
bet among the heirs were valid
3. Whether or not it is necessary for a
partition to be approved by the probate
court
4. Whether or not the respondent could be
held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasn’t clearly
stated in this case.
The parties entered into an agreement.
Q. Can prospective heirs whether under the
testate or intestate enter into a partition
over the properties belonging to the estate?
A. There can be no partition until and unless
the will is allowed or probated.
Q. Was it really a partition?
A: According to the SC they may act to put an end
in any indivision is considered and deemed to be a
partition.
There can be no partition in a testate proceeding
before the will is allowed.
Q: What is the rationale behind that?
A: Because the SC said if it is allowed then you are
divesting the court of its jurisdiction over the
property partition. Bec it is partition, it amounts to
distribution. Distribution is the final stage in a
settlement proceeding and there will be no
distribution of the estate until and unless all debts
has been paid. The court looks into it as an act of
divesting of its jurisdiction.
Q: Can principle of estoppel be applied?
A: The SC said the principle of estoppel will not
apply because the basis which is the extra judicial
partition is in fact void, a void act of declaration or
omission of a party cannot be used as evidence
against the party. If the act is null and void,
estoppel will not arise therefrom.
Q: Are the heirs liable?
A: The SC said he did not even established the fact
that you are the proper party in interest because
Union Bank did not show any evidence to prove
that you are really the affiny.
Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1. Claim against the estate
- after all the debts has been paid; upon
distribution
2. Foreclose the mortgage - judicial
- deficiency judgement – by motion only in the
same action
3. Extrajudicial foreclosure
- you solely rely on his mortgage, you don’t get
any deficiency judgement
9

Q: Sec 9 How to file a claim
A: In form of a simple application form
1. Deliver the claim to the clerk of court
2. Serve a copy on the executor or administrator
3. if the claim is due, it must be supported by
affidavit stating the amount due and the fact
that there has been no effects.
4. if the claim is not due or contingent, it must
be accompanied by affidavit stating the
particulars
Sec 10 Answer of executor or administrator
1. Executor may file answer within 15 days from
the service of claim
2. Answer must set forth claims which decedent
has against claimant or else it will be barred
forever.
Q. What is a statute of non-claims?
A. A claim against the estate shall be filed within a
period of not less than 6 mos and not more than
12mos from the date of first publication.
Q. What is the relationship bet a statute of non-
claims and limitations?
A. A statute of non claims supersedes a statute of
limitations. The statute of limitation is a period
provided for in the Civil Code where actions
prescribe. An ordinary prescriptive period in a
civil case is 10 years from accrual.
Q: Mr. A took the bus, Philippine Rabbit, owned by
Mr. B to Baguio. He never reached his destination
because the bus fell over a ravine on January 5,
1990. That is the date of the accrual of the cause
of action (Jan. 5, 1990). Can Mr. A file a case
against Mr. B on March 2001?
A: No because the action is barred by the statute
of limitations.
Q: Suppose Mr. B died in 1995. (yung owner ng
bus, Mr. B, not Mr. Bean) What should A do?
A: File a claim against the estate within a period
of not less than 6 mos. and not more than 12mos
from the date of first publication. So, the
presumption here is that there is a settlement of
the estate of B. Otherwise the statute of non-
claims will not apply.
Q: Suppose notice was given on March 1, 1995. So
you have 6 months and it was published March 20,
you have not less than 6 months from March 20,
nor more than up to the 19 th of March 1996. Can
you file it in 1998?
A: No because it is beyond the statute of non-
claims. Even if it is within the statute of
limitations, you can no longer file it because it is
beyond the statute of non-claims.
That is the meaning of the “statute of non-claims
supersedes the statute of limitations.”
On the other hand, if B died in 1999 of December,
you have only have up to January of 2000 because
the action has already prescribed, the ordinary
action.
The statute of non-claims prevails over the statute
of limitations. However, the statute of non- claims
will not apply if there is no settlement
proceedings.
RULE 87 ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
We have limited claims against the estate to
the following:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
These are considered as contractual money claims
under Rule 86. When you go to Rule 87, you will
note that you cannot file a claim against the estate
if it is claimable under Rule 86. So contractual
money claims, hindi. That is why in Rule 87, you
are also limited to the following claims or actions:
1. Recovery of real or personal
property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries
Q: In actions by and against executors and
administrators, where will the executor or
administrator get his money to satisfy your prayer
in your action? Hindi ba from the estate? So why
not against the estate, bakit against the executor
or administrator?
A: Rule 86 is not an action… tapos na dyan yung
action, it is already through. In 87, it is a separate
and distinct action, so that if it is a complaint, you
always file it against the executor or administrator.
Pero dito, tapos na yan. Hence, dahil tapos na, it is
urgent… urgency of the subject matter… so the
presumption in 86, that there must an estate
proceeding, whether testate or intestate… without
that , you cannot file any claim. Suppose wala, ano
gagawin mo? Iinitiate the testate or intestate
10
proceeding so that you file a claim. It is not an
independent action here.
But in 87, it is an independent action. Meron bang
testate or intestate proceeding? Not necessarily.
You might say, bakit executor, administrator? Kaya
nga ‘or’ because when you say executor, meron
yan. Kung walang executor, administrator. You
mean to say that there can be no administrator
without an estate proceeding? No. There can be
an administrator even if there is no estate
proceeding because you can even undertake
extrajudicial settlement of the estate. In
extrajudicial settlement there can be an
agreement by and between the parties as to the
administrator of the estate. The estate does not
have a separate and distinct personality. It is only
an entity authorized by law in special cases.
As a general rule, the estate cannot sue and be
sued. It can only be sued in certain instances. It
cannot be sued because under Sec.1, Rule 3 (Who
may be parties), it is only an entity authorized by
law. That is why you file against the executor or
administrator. Remember that an executor or
administrator is a natural person. Iba yun sa
Guardian ha? A guardian can be a juridical
person.. only guardianship over the property of
the ward. In guardianship over the ward, the
guardian cannot be an artificial being or
corporation.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due
from estate) with Sec. 5, Rule 87 (Mortgage due
estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate
of the decedent and the creditor. The creditors
may have affirmative remedies as to their claims
against the decedent such as going after his estate.
The estate is the debtor, the mortgagor (‘mortgage
due from the estate’). As compared to Sec. 5, Rule
87, the estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the
alternative remedies in Sec 7, Rule 86?
A: NO. He is only allowed one remedy which is
foreclosure.
After all these claims have been settled, all debts
have been paid, you go now to distribution. This is
the last stage. But in the distribution of the estate,
what Rule should be followed? First, before
distribution, there shall be payment of debts.
Q: What are these debts? There are only 5
specific kinds of debts.
A:
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and
5. Taxes.
Q: Under the rules on preference of credit, taxes
are given priority. Is there an
exception? What did you Labor Law teacher teach
you about that?
A: PNB vs. NLRC case (March 1990): In case of
liquidation of the assets of the corporation, even
taxes give way to unpaid salaries and wages. But
in all other instances, palaging ang gobyerno ang
uunahin. Sabi nga sa mga Reviewers, pag wala ka
na daw maisasagot sa question sa taxation,
taxation is the lifeblood of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales,
Mortgages, and other Encumbrances of the
Property of the Deceased. The fundamental
reason for sales, mortgages, and other
encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After
payment of debts, all that had been paid amounted
to P500T. How much is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and
legatees, A, B, C, D, E, and under the will, A should
receive P500T; B- P100T; C- P100T; D and E- P50T
each and what remains is only P500T, how will
you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and
the obligation was only P1M. You have P900T left
but the will says to distribute only P500T; P100T;
P100T and P50T to the last two, may sobra ka,
(that goes to the pocket of the lawyer?) it should
be distributed in accordance with intestate
succession but also pro rata. A: Remember we are
talking here of the remainder, wala nang
babayaran. We have also studied the Rules on
contingent claims, under Sec. 4, Rule 74 ( Liability
of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before
payment of debts?
A: General Rule: No.
11
Exception: Assets may be distributed even prior to
payment of debts provided the distributee first
gives a bond.
The remedy is to give a bond. If the asset to be
distributed is quite important, such as real
property, then you give the asset.
RULE 92 GUARDIANSHIP
Madali lang itong guardianship. You know why?
Because the Rules are practically the same. The
fundamental difference is that in guardianship, the
subject is still alive. In settlement of estate, the
subject matter is already dead.
Three Kinds of Guardians:
1. Judicial guardian – that appointed by the
court in a judicial proceeding for legal
guardianship
2. Legal guardian— guardian by operation of
law; not just appointed by any court. (ex.:
parents of minor children)
3. Guardian ad litem- that which is appointed
by the court not necessarily in a guardianship
proceeding, because this guardian ad litem is
only on a temporary basis with a specific
duty to perform.
Q: Which court has jurisdiction over a petition for
guardianship?
A: Exclusively and originally cognizable by the
Family Court (RTC specifically designated as a
Family Court because of RA 8369 ). There is no
inferior court here.
However, in settlement of estate, jurisdiction may
be lodged in inferior courts depending on the
gross value of the estate.
The venue is the residence of the ward. If the
ward has no residence and the guardianship
application is over the property of the ward,
the venue is where the property is situated/
located.
Take note that the venue here is the residence of
the ward as distinguished from the venue in
adoption, which is the residence of the adopter.
Bakit? Because in adoption, the result is that the
adoptee will become the child of the adopter for
all legal intents and purposes. But here, it is the
guardian that goes to the ward as the relation here
is only of a temporary character.
You file a guardianship proceeding only on 2
grounds:
1. Minority; and
2. Incompetency.
The term “incompetent” here is different from that
in settlement of estate. Here,
“incompetent” refers to:
Sec. 2. Meaning of the word “incompetent”.
Incompetent includes:
1. Those suffering from the penalty of civil
interdiction (a penalty attached to
conviction);
2. Hospitalized lepers;
3. Prodigals (one who is a spendthrift; wastes
money or property on things without
reserving any for himself and before you
know it, he is not only a prodigal son but also
a grasa man.);
4. Deaf and Dumb unable to read and write;
5. Those of unsound mind although they have
lucid intervals;
6. Persons not of unsound mind but by reason of
age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care
of themselves or manage their property.
A minor, under the age of 18, can be the subject
of guardianship.
Case of Evangelista: The petition for
guardianship was granted by the court and Caniza
was appointed as the guardian of Evangelista. As a
guardian, remember the rights, the guardian can
sue and be sued, can collect debts, can manage the
properties of the ward. So one of his actions here
was to ask the Estradas to vacate the premises
owned by the ward. Judgment was rendered in
favor of plaintiff, but on appeal, it was reversed
and on appeal again from the order of reversal, it
was sustained. That is why it went up to the
Supreme Court. But pending the appeal with the
CA, the ward died. This is a case for ejectment.
The issue here is that considering that there is no
more guardianship because death terminates
guardianship, hence, the case must be dismissed
because the party appellant is not the proper
party-in-interest. The SC said No. Even if death
terminates guardianship, in this particular case, it
is contrary to the principle of equity of justice if
we have to start all over again. The case is already
with us, so remand of the case to the lower court
would be a waste of time and more importantly,
they found from the record that Caniza was one of
the heirs of the ward. Hence, there is still a party-
12
in-interest even if there is no settlement of the
estate. Ang importante ay pag guardian ka tapos
heir ka din, there is no need for the settlement of
the estate.
NOTE: Remember that you find that also in Sec. 16
of Rule 3: Substitution of Parties (“without a need
of appointing an administrator or executor of the
estate in the substitution of parties.”). That is the
doctrine laid down in this case.
Q: Who can initiate a petition for guardianship?
A: Anybody who has interest in the person of or
property of the ward. If you cannot establish any
interest in the person of or in the property of the
ward, you cannot file a petition for guardianship.
Buyena vs. Ledesma: In this case, they were able
to establish interest. They were both single and
they were living together.
You have to establish interest. The Rule says,
friends, relatives, or any person who has interest.
Q: What is the procedure?
A: File a petition with a court of competent
jurisdiction in the proper venue. And the court
will issue an order setting the case for hearing. If
there are oppositors, then they can file their
opposition. Remember, this is a special
proceeding and jurisdiction is always acquired
through publication. After trial, there will be
decision either allowing or disallowing
guardianship. In other word, appointing a
guardian or not appointing a guardian.
The guardian now enters into the guardianship
after he has filed the necessary bond. The duties
and responsibilities of a guardian are similar to
that of an executor or administrator .
Q: Can he sell the properties of his ward?
A: Yes. Even without permission from the court if
the property involved is personal property. But, if
it is real property, just like, an executor or
administrator, he has to get permission from the
court. Only with the permission of the court will
the sale of real property be considered a valid sale.
It is not only permission of the court which is
required, but also notice to all interested parties.
In guardianship, the absence of notice, even with
permission of the court, still renders the sale void.
Q: In what instances may guardianship be
terminated?
A: Death also terminates guardianship, but the
general rule is that if the ground for the
appointment of the guardian ceases, then
guardianship ceases as well.. If the minor is
already of age (remember, even the minor himself
can ask for guardianship). This is an exception
regarding lack of a minor’s legal personality to
sue. If the ground is based on incompetency and it
is established that the ward is already competent,
or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship
may be filed.
Q: Should the legal guardian file guardianship
proceedings over the person and property of their
minor children?
A: Yes if the property of the war, which is their
own children, is worth more than P50T. If they
sell the property of their ward, even if they are the
legal guardians, the sale of the property is void.
Q: Distinction between a guardian and a trustee
A: The distinction between a guardian and a
trustee is that the latter has the legal title while
the guardian has no legal title of the property. So
that the trustee can negotiate and encumber the
property under trust. Although the same trustee
may either be a trustee and a beneficiary at the
same time.
A trust relationship can either be express if there
is a trust agreement between parties or implied if
it is by operation of law. Examples of trust by
operation of law is when parents die without a will
and then some children are still minors, whoever
is the guardian of the minor holds the property for
and in behalf of the minors in trust. So that you
will note that the guardian here, being the trustee,
may not be a party to a written trust agreement
but he cannot dispose the minor's property
without consent of the court for the reason that he
is only in trust for the ces qui trust. Even in the
absence of a written contract, there is a trust
relationship by operation of law.
ADOPTION
Background of adoption: The rule on adoption has
13
been amended several times and even the rules on
procedure, which you find in 99 and 100 are no
longer applicable. They have been repealed
expressly. As early as the mid-70s when the Child
and Youth Welfare Code (PD 603) was enacted, it
already amended the rules on adoption. PD 603
was also amended by the Family Code. But all
these are no longer applicable in toto because of
the new laws on adoption which should be the
subject matter of today's section. The laws
applicable now is not even the Civil Code per se,
but rather it should be RA 8562, the Domestic
Adoption Law of 1998 and the Inter Country
Adoption Law of 1995 (RA 8043). These are the
substantive law governing adoption. Our concern
is the rule on adoption.
AM 02-6-02SC, dated July 2002, is the new rule
on Adoption.
Q: Who may be adopted only?
A: General Rule: one who is legally available for
adoption.
Q: Who are legally available for adoption?
A: Those who are voluntarily committed and/or
involuntarily committed.
The parents or guardians of these persons have
voluntarily surrendered their parental or
guardianship authority to the DSWD.
Q: Who are those involuntarily committed?
A: Judicially or administratively deprived. Minors,
whose parents or guardians are administratively
or judicially deprived of their authority over these
persons. They are involuntarily committed. And
within that concept, you have the abandoned, the
dependents, and neglected children.
Q: What is a child-placement agency as
distinguished from a child-caring agency?
A: The distinction is in the services that they cater.
Pag placement, it is to provide comprehensive
child welfare services including, but not limited to,
receiving applications for adoption, evaluating the
prospective adoptive parents, and preparing the
adoption home study while pag caring, it is like
Hospicio de San Jose, which provides 24 hour
residential care services for abandoned, orphaned,
neglected or voluntarily committed therein.
Q: Which court has jurisdiction over a petition for
adoption?
A: It is the Family Court. RTC is not even a totally
and perfectly correct answer because it may be
another RTC.
Q: What is the venue?
A: The place where the adoptive parents reside.
NOTE: Here, the meaning of residence is the actual
habituation of the petitioner.
We are only going to study 2 fundamental
questions on adoption. Who may be adopted and
who may adopt. Once you perfect that we can go to
another lesson.
Q: Who may adopt? Or who is a qualified
prospective adopter?
A:
1. Any Filipino Citizen
2. Any alien
3. Guardian, with respect to the ward. And
remember, there is no qualification as to the
citizenship of the guardian. The only
qualification is that the guardianship must
have ended AND his accountability as a
guardian has been completed. Yun lang ang
qualification.
Q: Now let's go to the Filipino, what are the
qualifications?
A:
1. of legal age;
2. he must possess full civil capacity and legal
rights;
3. of good moral character;
4. has not been convicted of any crime
involving moral turpitude;
5. emotionally and psychologically capable of
caring or children;
6. financially capable or economically capable;
7. at least 16 years older than the adoptee.
NOTE: When one is of legal age, a minor cannot
adopt. Because he must be capable of
unquestionable demonstration. Under the Rules
on Evidence, the court can either take judicial
notice of that because he is capable of
unquestionable demonstration.
Q: What does possession of full civil capacity and
legal rights mean?
A: Give me a person who is not possessed of full
civil capacity and legal right. A convicted person
which has received an additional penalty of civil
interdiction.
Q: How about a deaf-mute? Is a deaf-mute in
14
possession of full civil capacity?
A: Under the rules, a deaf-mute who is not able to
read and write is not in possession of full civil
capacity, thus it is incapable of contracting
obligations.
Q: A person caught urinating, and charged of
urinating in public. Is this not moral turpitude?
A: Urinating or defecating in public is an offense
and not a crime. The requirement speaks of one
who has not been convicted of a crime, which is
punishable by the Revised Penal Code.
Q: But if you are charged of Rape, can you not
adopt?
A: No. Because it speaks of conviction. You must
first be convicted.
But if you are convicted of homicide, recent
jurisprudence say, you can still adopt because it is
not a crime of moral turpitude. So tatlo, there
must be a crime, there must be conviction, and
it must be of moral turpitude.
Q: How do you establish your emotional and
psychological capacity?
A: Clearances to show that you have not been
convicted from a crime of moral turpitude.
Clearances from RTC, police, PNP, barangay, MTC,
etc. And these clearances will ought to show that
you are of good moral character, that you are
emotionally and psychologically capacitated,
subject of course to presentation of evidence and
cross-examination. Wala namang summons sa
adoption.
Q: How do you establish your financial capacity?
A: Certificate of employment, income tax returns.
Q: When we speak of age gap, the miracle number
is 16, why? What is sought to be avoided by this
age gap?
A: To avoid temptation. You look at the history of
the Civil Code of the Philippines which was
adopted from the Civil Code of Spain. And being of
European origin, there is that also a 16 year old
gap. Malalaking bulas ang mga european and they
seek adoption as a means of having mistresses.
Q: Who may be adopted?
A: General Rule: one who is legally available for
adoption.
Q: Who are legally available for adoption?
A: There are 7. So that minority is not an absolute
requirement to be adopted. Relationship is not
even a disqualification on the part of the adoptee.
because they can be adopted.
What I would like to emphasize is the doctrine laid
down in Cang v CA, which is that consent must be
given either by the prospective adoptee, if he is at
least 10 years old, or parents, or guardians, or the
DSWD. Without that consent, as laid down in this
doctrine, adoption is null and void.
So you can adopt even your own child. You can
even adopt your own grandchildren just like what
Juan Ponce Enrile did to his grandchildren.
Q: Another person who may adopt is a foreigner,
and he may adopt under the domestic adoption
law or the inter-country adoption law. What are
the requirements?
A: So all the requirements applied to a Filipino
prospective adopter are also required of an alien.
Therefore, he must be of legal age, in possession of
full civil capacity and legal rights, of good moral
character, not convicted of a crime involving moral
turpitude, etc.
Over and above this, an alien is also required:
1. he must have continuously resided in the
Philippines 3 years prior to the filing of the
adoption;
2. he must have a certification from his consular
official that he is in possession of full civil
capacity;
3. his country of origin must have diplomatic
relations with our country;
4. his country of origin must allow the adoptee
to become a citizen of his country;
5. that his country of origin allows the adoptee
to enter the country of origin of the adopter;
Q: Where should he file this petition for adoption?
(Section 28)
A:
1. It may be filed by a foreign national or Filipino
citizen permanently residing abroad with the
Family Court having jurisdiction over the
place where the child resides or may be found;
2. It may be filed directly with the Inter-Country
Adoption Board.
When an alien files a petition before the Inter-
Country Adoption Board, the alien will come here
in the Philippines and will bring the adoptee and
the social worker back to his country of origin for
the trial custody of 6 months will happen there.
This is purposely done by the law, because there is
15
an objective of discouragement. To discourage the
adoption of Filipino citizens by aliens. In fact that
is only allowed if the prospective adoptee cannot
be adopted by a Filipino. Filipinos have the
preference of adopting.
Q: What constitutes the allegations?
A:
1. Jurisdictional facts;
2. legal capacity of the prospective adopter and
the adoptee;
In the case of Republic v. Hernandez (1997), the
SC said that the petition for adoption does not
carry with it the change of name of the adoptee.
With the present rules on adoption specifically
under Section 10, this doctrine does not apply
anymore. This is a good bar question. So you can
now have joinder of causes of action in special
proceedings, in effect. Dati wala. So you can now
join in your prayer, asking for a change of name
and for adoption. Let me emphasize, it is a change
of name and not a change of surname because
change of surname is an automatic effect of
adoption.
Q: After you have filed a petition for adoption,
what happens now?
A: There would be a case study, where it is
immediately assigned to a social worker. Under
present dispensation in our jurisdiction, every
family courts is now provided with a social
worker. Because a petition for adoption is
exclusively cognizable by the Family Courts.
Q: For what purpose is this?
A: One is the home study report and the other is
the case study report. The home study report is
about assigning to the social worker of the
respective adoptee and the case study report is
about the prospective adopter.
The general objective of adoption, why it is
allowed under the rules, is that which leads to the
benefit of the adoptee.
Under the rules, it is mandatory that the petitioner
must appear and testify. Similar to an annulment
of marriage case, there can be no stipulation of
facts here or confessions of judgment. There must
be actual presentation of evidence here. And basic
requirement here is the consent given by the
adoptee, the parents or the guardians of the
adoptee.
Q: After the hearing, may the court render
judgment now?
A: The judgment referred to here is not similar to
the judgment that we have ordinarily because the
judgment here is always subject to the issuance of
another decree of adoption. Ang finality dito is not
the finality of the judgment but rather the finality
of the decree of adoption.
Q: When is the decree of adoption issued?
A: After complying with the 6 month trial custody.
Again, this is another undertaking of the DSWD.
Tignan niyo, the home or case study report is
before the decision is rendered, but before a
decree of adoption is rendered kailangan pa ng isa
pang report which is the trial custody report.
Q: For how long?
A: General Rule: 6 months.
Exception: when it is in the best interest of the
child; the petition during the hearing is that the
prospective adoptee is already living with the
adopter.
Q: After the decree of adoption has become final
and executory, what is the next?
A: There should be a new birth certificate issued.
Remember that one of the rights of a party in
litigation is the right to a speedy and public trial.
But this adoption proceeding is exceptional
because even the documents there are public
records but are not open to the public, not
anybody can get it including the new birth
certificate issued to the adopter.
NOTE: But take note that under the rule on
rescission of adoption, the issued certificate of the
civil registrar's office is cancelled in favor of the
old birth certificate, which means that the old
birth certificate is not deleted, but remains in the
record. And this is the reason of the confidential
nature of the proceedings.
Q: What is adoption?
A: It is a judicial proceeding whereby the
relationship of paternity and filiation is
established. AS simple as that.
According to a noted professor, when a decree of
adoption is final and executory, there is the total
and absolute cut of any legal relationship between
the natural parent and the child.
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Under the new rules, the adopter cannot rescind
the adoption but only disinherit the adopted child.
An adopted child has all the rights of a legitimate
child.
HABEAS CORPUS
Q: What is the constitutional provision about
habeas corpus?
A: The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or
when public safety requires it. It is not the writ
which is suspended but the privilege.
Q: What is a writ of habeas corpus?
A: It is an order or judicial process directed to the
person to show cause for the reason of detention.
Q: By that definition, it is directed in two
conditions, which are:
A:
1. illegal detention or confinement;
2. illegal withholding of custody from a person
entitled thereto.
It is directed to someone who commits an act of
either illegal detention or confinement or illegal
withholding of custody from a person entitled
thereto.
Q: What is an example of the first instance?
A: Violation of the constitution, whereby a person
is deprived or restrained of his liberty or not
afforded a right to due process, or an order from
an authority which has no jurisdiction.
Q: What is an example of the second instance?
A: Malimit itong mangyari within the family,
where the mother or father fights over for the
custody of the child.
Q: If a woman leaves the parental home in order to
stay with her paramour, can the parents file a
petition for a writ of habeas corpus?
A: It depends. If the child is a minor, a writ of
habeas corpus is available. But when a child comes
of age, the writ of habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing
a person with imprisonment of 6 years 1 month
and 1 day, and then the convict has already stayed
for more than that period of time, is the writ
available?
A: Yes, the writ is available because that is the
immediate remedy. Although you can also file
certiorari but it is no longer immediate here.
Because what do you intend to annul there? wala.
Q: What is a preliminary citation as compared to
the writ of habeas corpus or the peremptory writ?
A: Preliminary citation is a citation to the
government officer having the person in his
custody to show cause why the writ of habeas
corpus should not issue (detention not patently
illegal).
Preemptory writ is issued when the cause of the
detention appears to be patently illegal and the
non-compliance wherewith is punishable.
In preliminary citation, it is not mandatory where
the court may dispense with the issuance of the
preliminary citation and go directly to the
issuance of the writ of habeas corpus.
A person in custody of another, restraining the
liberty of another, must give a return upon receipt
of the writ of habeas corpus. That return can
either be prima facie evidence of the detention or
a plea of the facts stated therein, in the return.
Q: Ano ang ibig sabihin nito? (Section 13)
A: The content of the return as to whether it is a
plea only or prima facie evidence of detention,
they distinguish as to who has burden of proof. If
the return contains prima facie evidence of the
detention, then petitioner has the burden of proof
to show that the detention is illegal. But if it is only
a plea of the facts stated in the return, then the one
who has the custody of the person has the burden
of proof.
So a writ of habeas corpus is directed to a jail
warden. When the jail warden prepares the return,
which is brought to the court, he says that this
person is under a commitment order, merong
desisyon ang korte that this one should be
imprisoned because he was denied bail although is
appeal is still pending. That is prima facie
evidence of the cause of his detention, and when
that is submitted to the court, the applicant has
the burden to establish that that commitment
order is illegal.
But if the return, it says well i am taking custody of
this child because i am the father, that is not a
commitment order or judicial order, that is coming
from a private person. Therefore, that is not prima
facie evidence but only a plea of the facts stated
therein. Hence, the father will show that he has the
right to take custody of the child and not anymore
the petitioner.
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RULE 103 (CHANGE OF NAME) and 108
(CORRECTION OF ENTRIES) are still applicable.
They have only been amended but are not yet
repealed by RA 9048. Therefore, an affected
person can avail of Rule 103 or Rule 108 without
RA 9048 being violated.
RA 9048 is known as administrative procedure of
changing one's name or nick name or
administrative procedure of correcting an entry in
a document. Therefore, being administrative, it is
extrajudicial. In case of Rules 103 and 108, they
are judicial processes.
Q: Which courts have jurisdiction over Rules 103
and 108?
A: RTC, specifically the Family Courts.
Q: Venue?
A: Residence in case of change of name. Where the
registry is located in case of correction of entries.
Q: What are the amendments to these two rules
brought about by RA 9048?
A: Remember that RA 9048 speaks only of names
and nickname but when Rule 103 says change of
name, it does not only refer to name or nick name
but also to family name. So if you want to change
the family name you cannot avail of RA 9048.
Q: What are the grounds?
A:
The same grounds. Under RA 9048, the same
grounds:
1. That the name is ridiculous. If your name is
Lucifer, you can have it changed under Rule
103 or RA 9048.
2. Tainted with dishonor. If your name is Osama
Bin Laden, you can have it changed.
3. Your name is very difficult to pronounce or
write. If your name is
supercalifragilisticexpialidocious.
4. That you are known by the name in the
community.
5. To avoid confusion.
6. To avoid foreign alienage.
So the same grounds either under Rule 103 or RA
9048.
Under Rule 108, you have to correct entries in a
document. And the enumerated public documents
where entries have had are as many as possible.
Those which are in the custody of the register of
deeds. If the change are substantial, you cannot
avail RA 9048 but Rule 108. You can only avail of
RA 9048 if the change sought is clerical or
typographical in nature.
Q: Name is Maria Cecilia when in her birth
certificate it shows as Ma. Cecilia, is that
typographical or clerical error?
A: There is no error there. What you have to seek
is change of name because Ma is different from
Maria Cecilia. There is no error there.
You cannot avail of RA 9048 if it will change sex,
status, or nationality. If there is error you can
change it under Rule 108 and not RA 9048.
Q: Suppose you do it under Rule 108, and it was
denied. Where do you appeal or what is the
remedy?
A: The remedy is to go to the Civil Registrar
General who is the Manager of the National
Census Administrative Office. It is not an appeal
but a motion for reconsideration. If the civil
registrar affirms the denial, you file a PETITION
under Rule 108.
Q: Going back to RA 9048, A was born in Quezon
City, he now resides in Baguio City. Should he go to
Quezon City in order to file under RA 9048?
A: No, he has to file it in Baguio and under the
rules the two civil registrar, that of Baguio and
Quezon city will coordinate. It also can be done
abroad, by filing the same with the Philippine
Consulate, it is a matter of communication.
NOTE: Appeal in RA 9048 is with the Civil
Registrar General. Although it is not really an
appeal, it is a motion for reconsideration. Appeal
under Rule 103 or 108 is ordinary/ regular appeal.
In RA 9048, it is not really an appeal, wala naman
kasi appeal sa administrative remedies, you use
the word appeal for facilitation of better
understanding. But that is not an appeal, motion
for reconsideration siguro.
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