Download - SpecProc Memory Aid
-
8/13/2019 SpecProc Memory Aid
1/36
San Beda College of Law100
MEMORYAIDINREMEDIALLAW
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy bywhich a party seeks to establish a status,
a right or a particular fact. (Rule 1,
Section 3
JURISDICTIONGENERAL RULE: Regional !rial "ourtEXCEPTION: #!" has $urisdiction in thefollowing cases%
1. &robate proceedings whether testate
or intestate where the gross 'alue of
the estate does )! e*ceed&3++,+++ or &++,+++ in #etro
#anila, "/0S2 of interest,
damages of whate'er kind,
attorneys fees, litigation e*penses
and costs.
4. 5/6A!5 70RS5"!)
8 in "adastral and /and
Registration "ases co'ering lots
where there is no contro'ersy or
opposition or contested lots where
the 'alue of which does not e*ceed &
1++!.
8 appeal is taken to the "A, not
to the R!" since #!" is e9ual to R!"
in this instance.
3. S&"A/ 70RS5"!)
8 petitions for writ of :abeas
"orpus in case of absence of R!"
$udges.
S" and "A ha'e original $urisdiction
o'er :abeas "orpus cases, concurrent
with the R!".
ORDINARYACTION
SPECIALPROCEEDING
to protect orenforce a right or
pre'ent or redress awrong
in'ol'es theestablishment of theright, status or fact
in'ol'es two ormore parties
may in'ol'e onlyone party
go'erned byordinary rules
go'erned by specialrules supplemented
supplemented byspecial rules
by ordinary rules
heard by courts ofgeneral $urisdiction
heard by courts oflimited $urisdiction
nitiated by apleading and partiesrespond through an
answer
nitiated by means ofa petition and partiesrespond by means of
an opposition
DIFFERENT MODES OF SETTLEMENT OFESTATE OF DECEASED PERSON
1. *tra$udicial Settlement of
state (Section 1, Rule ;
4. &artition (Rule ill (Rule ;? to ;=
?. &etition for letters of
Administration in cases of
ntestacy (Rule ;=
PROCEDURE IN SETTLEMENT
PROCEEDINGS
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
ssuance of /etters!estamentary@Administration
(A special administrator may beappointed (Rule ;;-+
&robate of the >ill ifany (Rule ;? 8;
-
8/13/2019 SpecProc Memory Aid
2/36
San Beda College of Law101
MEMORYAIDINREMEDIALLAW
RULE 73VENUE AND PROCESS
VENUE
:AB!A! )C &:/&&S(whether citiDen or alien 8 "ourt
of pro'ince@city where he
resides at the time of death.
:AB!A! )C C)R6
")0!RE 8 R!" of any pro'ince
wherein he had his estate.
Residence means his personal, actualor physical habitation, his actual
residence or place of abode. (Fule vs.
CA, L-40502, Nov. 29, 1976)
!e"e es#$#e %& dece$sed 'e"s%nsse##(ed) (Sec.1
* +INDS OF SETTLEMENTA. !RA705"A/ S!!/#! -
,R-(e 7./ Sec#i%n 01
B. 705"A/ S!!/#! - !estate or
ntestate &roceedings instituted in
the country where decedent has his
residence
EXTENT OF JURISDICTION&robate courts are courts of /#!5
$urisdiction. t may only determine and
rule upon issues relating to the
settlement of the estate, namely%
1. administration of the estateF
4. li9uidation of the estateF and
3. distribution of the estate.
GENERAL RULE: &robate court cannotdetermine issue of ownership.
EXCEPTIONS:
1. &ro'isionally, ownership may bedetermined for the purpose of
including property in in'entory,
without pre$udice to its final
determination in a separate actionF
or
4. >hen all the parties are heirs and
they submit the issue of ownership
to the probate court pro'ided that
the rights of third parties are not
pre$udiced. (Bernardo vs. CA, L-
18148, Fe. 28, 196!)
EXAMPLES OF OT2ER UESTIONS2IC2 T2E PRO4ATE COURT CANDETERMINE
1. >ho are the heirs of the
decedentF4. !he recognition of a natural
childF
3. !he 'alidity of disinheritance
effected by the testatorF
. Status of a woman who claims to
be the lawful wife of the
decedentF
?. !he 'alidity of a wai'er of
hereditary rightsF
hether property in in'entory is
con$ugal or e*clusi'e property ofdeceased spouseF
. All other matters incidental or
collateral to the settlement and
distribution of the estate.
PRINCIPLE OF EXCLUSIONARY RULE!he court first taking cogniDance of the
settlement of the estate of the
decedent, shall e*ercise $urisdiction to
the e*clusion of all other courts.
!he probate court ac9uires $urisdiction
from the moment the petition for thesettlement is filed with said court. t
cannot be di'ested of such $urisdiction
by the subse9uent acts of the parties as
by entering into e*tra$udicial partition
of the estate ("andoval vs. "an#$a%o, 88
&'L 784F or filing another petition forsettlement in a proper court of
concurrent 'enue (e Bor$a vs. *an, 77
&+$l 872).
EXCEPTION:
stoppel by /A":S
7urisdiction under Rule ;3 Sec. 1 does
)! relate to $urisdiction per se but to
'enue. :ence, institution in the court
where the decedent is neither an
inhabitant or ha'e his estate may be
wai'ed. (r$ar#e vs. CF, L-219!8-!9,
a 29, 1970)
mproper 'enue must be seasonablyraised. (/use$o v. /use$o, 100 &'L
59!)
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
3/36
San Beda College of Law102
MEMORYAIDINREMEDIALLAW
REMEDY IF T2E VENUE IS IMPROPERLYLAID)R5ARE A&&A/ not certiorari or
mandamus 0/SS want of $urisdiction
appears on the record of the case.
R!" may issue writs and processes.
(Sec.3, Rule ;3
GENERAL RULE: &robate court cannotissue writs of e*ecution.
Reason% its orders usually refer to the
ad$udication of claims against the estate
which the e*ecutor@administrator may
satisfy without the need of e*ecutory
process.
EXCEPTIONS: "/0S2 (eress$oun$us es# elus$o al#er$us1. !o satisfy the contributi'e share
of the de'isees, legates and
heirs when the latter had
entered prior possession o'er the
estate. (Sec.
-
8/13/2019 SpecProc Memory Aid
4/36
San Beda College of Law103
MEMORYAIDINREMEDIALLAW
the same with the Register of 5eeds.
(Regalado
Is $ P-8(ic Ins#"-5en# necess$"9 &%" #!e
$(idi#9 %& $n e;#"$!: 4 ERS. - claim against
the bond or the real estate.
4. Action to Annul a deed of
e*tra$udicial settlement on the
ground of CRA05 8 within
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
5/36
San Beda College of Law104
MEMORYAIDINREMEDIALLAW
EARS ro #+e d$sover o
raud.
3. Recon'eyance of real property.
>here the estate has been summarilysettled, the unpaid creditor may, within
4 years, file a motion in the court
wherein such summary settlement was
had, for the payment of his credit.
EXCEPTION: f on the date of thee*piration of the two-year period, the
creditor or heir is -
a A minor or incapacitated, or
b n prison or
c )utside the &hilippines,
he may present his claim within one yeara#er su+ d$sa$l$# $s reoved. (Sec. ?
Rule ;?
!he 4-year lien upon the real property
distributed by e*tra$udicial or summary
settlement shall be annotated on the
title issued to the distributees and after
4 years will be cancelled by the register
of deeds without need of court order
(/R" "R"0/AR 13
Such lien cannot be discharged nor the
annotation be cancelled within the 4year period e'en if the distributees offer
to post a bond to answer for contingent
claims from which lien is established.
(eon% vs. ane3, 79 &+$l !24)
RULE 7?PRODUCTION OF ILL@ ALLOANCE OF
ILL NECESSARY
Sec#i%n 0) A((%$nce necess$"9/
c%nc(-sie $s #% e;ec-#i%n)
NATURE OF PRO4ATE PROCEEDINGS1. R# -binding on the whole
world.
4. #A5A!)RE - no will shall pass
either real or personal property
unless it is pro'ed and allowed in
the proper court. :)>2R, it
has been held in one case that a
will may be sustained on the
basis of Article 1++ of the "i'il
"ode which reads as follows%
Hf the testator should make a
partition of his properties by an
act inter 'i'os, or by will, such
partition shall stand in so far as
it does not pre$udice thelegitime of the forced heir.I
(an%-: vs. CA, 144 "CA !!).
3. #&RS"R&!B/ 8 because of
the public policy to obey the will
of the testator.
. !he 5)"!R )C S!)&&/
does no# apply.
Re$s%n: presentation andprobate of will is re9uired by
public policy and in'ol'es public
interest. (Fernande3 vs.
$a%$a)
RULE 7BALLOANCE OR DISALLOANCE OF
ILL
P"%8$#e %" A((%$nce %& i((s > act ofpro'ing in a court a document purporting
to be the last will and testament of a
deceased person in order that it may be
officially recogniDed, registered and its
pro'isions carried insofar as they are in
accordance with law.!% 5$9 'e#i#i%n &%" $((%$nce %& i((=(Sec.1
1. any creditor - as preparatory
step for filing of his claim
therein (Regalado, p.4
-
8/13/2019 SpecProc Memory Aid
6/36
San Beda College of Law105
MEMORYAIDINREMEDIALLAW
by the decedent who is a non-
residentF
4. the names, ages, and residences
of the heirs, legatees, de'isees
of the testator or decedentF3. the probable 'alue and character
of the property of the estateF
. the name of the person for
whom the letters are prayedF
?. the name of the person ha'ing
custody of the will if has not
been deli'ered to the court.
But no defect in the petition shall render
'oid the allowance of the will, or the
issuance of letters testamentary or of
administration with the will anne*ed.
EFFECT OF T2E PRO4ATE OF A ILLt is conclusi'e as to the "0!) and
the 2A/5!E of the will (e'en against
the state. !hus, a criminal case against
the forger may not lie after the will has
been probated.
ISSUE IN T2E PRO4ATE OF A ILLGENERAL RULE:)nly determination of the e*trinsic
'alidity not the intrinsic 'alidity or
testamentary dispositions.EXCEPTION: >here the entire or alltestamentary dispositions are 'oid and
where the defect is apparent on its face.
(Aa$n vs. AC No. 72706, :#. 27,
1987 Neuueno vs. CA, 1!9 "CA
206)
EXTRINSIC VALIDITY - means duee*ecution of the will.
MEANING AND EXTENT DUE EXECUTION
5ue e*ecution means that%1. the testator is of sound and
disposing mind when he
e*ecuted the willF
4. the will was )! e*ecuted under
duress, fraud or other
circumstances that 'itiates
consentF
3. the re9uired formalities ha'e
been strictly complied withF and
. the will is genuine and not a
forgery.
COURT APPOINTS TIME FOR PROVINGILL) NOTICE T2EREOF TO 4EPU4LIS2ED (Sec.3
!en d%es c%-"# $c-i"e GS
successi'ely of the order setting the case
for hearing A5 sending )!"S to all
persons interested.
NOTICES MUST 4E GIVEN TO:1. designated or known heirs,
legatees and de'iseesF and
4. e*ecutor and co-e*ecutor if not
the petitioner.
MODES OF NOTIFYING49 5$i(: 4+ days before hearingPe"s%n$( n%#ice: 1+ days before hearing
3 weeks successi'ely is not strictly 41
days.
ANTE MORTEMf petition for probate is on testators
own initiati'e during his lifetime -
1. no publication is necessaryF and
4. notice shall be made only to the
compulsory heirs.
PROOF OF 2EARING (Sec.?At the hearing, compliance of
&ublication and otice must first be
shown before introduction of testimony
in support of the will.
EVIDENCE in s-''%"# %& i((:1. 0")!S!5 >// (Sec.?
a No#ar$al
-
8/13/2019 SpecProc Memory Aid
7/36
-
8/13/2019 SpecProc Memory Aid
8/36
San Beda College of Law107
MEMORYAIDINREMEDIALLAW
1. foreign court must ha'e
$urisdiction o'er the proceedingF
4. domicile of testator@decedent in
the foreign country and not in
the &hilippinesF3. that the will has been admitted
to probate in such countryF
. it was made with the formalities
prescribed by the law of the
place in which the decedent
resides, or according to the
formalities obser'ed in his
country, or in conformity with
the formalities prescribed by our
"i'il "odeF and
?. due e*ecution of the will in
accordance with the foreignlaws. (Regalado
EFFECTS1. the will shall ha'e the same
effect as if originally pro'ed and
allowed in court of the
&hilippines.
4. letters testamentary or
administration with a will
anne*ed shall e*tend to all
estates of the &hilippines.
3. Residue of estate after payment
of debts, etc. shall be disposedof as pro'ided by law in cases of
estates in &hilippines belonging
to persons who are inhabitants
of another state or country.
RULE 7LETTERS TESTAMENTARY AND OF
ADMINISTRATION 2EN AND TO 2OMISSUED
PERSONS 2O CAN ADMINISTER T2EESTATE
1. *ecutorF
4. Administrator, regular or special
(Rule +F and
3. Administrator with a will
anne*ed (Rule ;=, Section 1.
E;ec-#%" > !he one named by thetestator in his will for the administration
of his property after his death.
Ad5inis#"$#%" - )ne appointed by the"ourt in accordance with the Rules or
go'erning statutes to administer and
settle the intestate estate or such
testate estate, where the testator didnot name any e*ecutor or that the
e*ecutor so named refuses to accept the
trust, or fails to file a bond, or is
otherwise incompetent.
Ad5inis#"$#%" i#! $ i(( $nne;ed >oneappointed by the court in cases when,
although there is a will, the will does not
appoint any e*ecutor, or if appointed,
said person is either incapacitated or
unwilling to ser'e as such.
2O MAY SERVE AS EXECUTOR@ADMINISTRATOR=Any ")#&!! person may ser'e as
e*ecutor or administrator.
2O ARE INCOMPETENT TO SERVE ASEXECUTOR@ADMINISTRATOR=
1. a minor
4. a non-resident
3. one who in the opinion of the
court is unfit to e*ercise the
duties of the trust by reason of%
a drunkennessb impro'idence
c want of understanding and
integrity
d con'iction for an offense
in'ol'ing moral turpitude
*ecutor of e*ecutor shall not, as
such, administer the estate of the first
testator. (Sec. 4
Le##e"s #es#$5en#$"9 - Authority issued
to an e*ecutor named in the will toadminister the estate.
Le##e"s %& $d5inis#"$#i%n Authorityissued by the court to a ")#&!!
person to administer the estate of the
deceased who died intestate.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
9/36
San Beda College of Law108
MEMORYAIDINREMEDIALLAW
TO 2OM LETTERS OFADMINISTRATION GRANTED
O"de" O& P"e&e"ence
1. !he sur'i'ing husband or wife orthe ne*t of kin, or both in the
discretion of the court, or to
such person as such sur'i'ing
spouse or ne*t of kin, re9uest to
ha'e appointed, if competent
and willing to ser'e. (S0R226
S&)0S )R )#
4. f the sur'i'ing spouse or the
ne*t of kin or the person
selected by them be
incompetent or unwilling to
ser'e, or if the sur'i'ing spouseor ne*t of kin neglects for 3+
days after the death of the
decedent to apply for
administration, AE one or more
of the &R"&A/ "R5!)RS, if
competent and willing to ser'e.
3. f there is no such creditor
competent and willing to ser'e,
it may be granted to such other
person as the court may select.
(S!RA6R
!he )rder of appointment of Regularadministrator is final and appealable.
4ASIS FOR T2E PREFERENTIAL RIG2T!he underlying assumption is that those
who will reap the benefits of a wise,
speedy and economical administration of
the estate or on the other hand, suffer
the conse9uences of waste,
impro'idence or mismanagement, ha'e
the higher interest and most influential
moti'e to administer the estate
correctly.
RULE 7OPPOSING ISSUANCE OF LETTERSTESTAMENTARY PETITION ANDCONTENTS FOR LETTERS OF
ADMINISTRATION
!$# is #!e MAIN ISSUE in $n$d5inis#"$#i%n '"%ceedin6=>ho is the person rightfully entitled to
administration.
!% 5$9 %''%se #!e iss-$nce %&(e##e"s=GENERAL RULE: Any person interestedin the will. (Section 1
EXCEPTION: 'en where a person whohad filed a petition for the allowance of
the will of the deceased person had no
right to do so in 'iew of his lack of
interest in the estate, ne'ertheless,
where the interested persons did not
ob$ect to its application, the defect in
the petition would be deemed cured.
!he filing of the petition may be
considered as ha'ing been ratified by the
interested parties. (/use$o vs.
>alores 97 &'L 16!)
&etition for )pposition may at the same
time be filed for /etters of
Administration with the will anne*ed.
C%n#en#s %& $ 'e#i#i%n &%" (e##e"s %&$d5inis#"$#i%n% (Sec.4
a $urisdictional factsF
b name, age, residence of heirs
and creditorsF
c probable 'alue and character of
the estateF and
d name of the person for whom
letters is prayed for.
o defect in the petition shall render
'oid the issuance of the letters of
administration.
G"%-nds &%" O''%si#i%n:1. n Le##e"s Tes#$5en#$"9
a incompetence
4. n Le##e"s %& Ad5inis#"$#i%na incompetenceF
b preferential right of the heir
under Sec. eeks and notice to
heirs, creditors and other persons
belie'ed to ha'e an interest in the
estate is re9uired before hearing.
/etters can be granted to any person or
any other applicant e'en if other
competent persons are present if the
latter fail to claim their letters when
notified by the court. (Sec.
-
8/13/2019 SpecProc Memory Aid
10/36
San Beda College of Law109
MEMORYAIDINREMEDIALLAW
RULE SPECIAL ADMINISTRATOR
!en 5$9 $ '"%8$#e c%-"# $''%in# $
s'eci$( $d5inis#"$#%"=1. 5elay in granting of letters
including appeal in the probate
of the will.
4. *ecutor is a claimant of the
estate he represents.
- in this second instance, the
administrator shall ha'e the
same powers as that of a
general administrator.
ORDER OF APPOINTMENT
DISCRETIONARY!he preference accorded by Sec. < ofRule ; of the Rules of "ourt to sur'i'ing
spouse refers to the appointment of a
re%ular administrator, )! to that of
se$al administrator, and that the order
appointing the later lies within the
discretion of the probate court, and is
not appealable. (&$;uan vs. e urrea,
124 &+$l. 1527)
POERS AND DUTIES1. &ossession and charge of the
goods, chattels, rights, credits,and estate of the deceasedF
4. "ommence and maintain suit for
the estateF
3. Sell )/E
a perishable propertyF and
b those ordered by the courtF
. &ay debts )/E as may be
ordered by the court.
DURATION OF POER OF SPECIALADMINISTRATOR
0ntil 9uestions causing the delay isdecided and the regular administrator is
appointed.
!en d%es #!e '%e" %& $ s'eci$($d5inis#"$#%" ce$se=After the 9uestions causing the delay are
resol'ed and letters are granted to
regular e*ecutor or administrator.
Is $''%in#5en# %& s'eci$( $d5inis#"$#%"$''e$($8(e=NO, the same is !R/)"0!)RE.:owe'er, appointment of a R60/AR
A5#S!RA!)R is appealable because itis a final order.
t is possible for the e*ecutor oradministrator whose appointment is
challenged by appeal to be appointed
also as the special administrator pending
such appeal. !here is no harm in
appointing the same person as special
administrator because there is a 'ast of
difference between the powers and
duties of the two positions.
RULE 04ONDS OF EXECUTOR AND
ADMINISTRATOR
4OND OF EXECUTOR@ADMINISTRATOR(Sec.1
!en &i(ed=Before an e*ecutor or administrator
enters upon e*ecution of his trust
A5%-n#= Ci*ed by the court
CONDITIONS1. #ake an 2!)RE of property
which came to his knowledge
and possession within 3 #)!:S.
4. A5#S!R the estate and from
the proceeds pay all debts and
charges.
3. Render an A"")0! within )
EAR
. &erform all orders of the court.
ADMINISTRATORS 4OND STATUTORY4OND"onditions prescribed by statute forms
part of bond agreement.
!erms and effecti'ity of bond does not
depend on payment of premium and
does not e*pire until the administration
is closed. As long as the probate court
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
11/36
San Beda College of Law110
MEMORYAIDINREMEDIALLAW
retains $urisdiction of the estate, the
bond contemplates a continuing liability.
(Lu3on "ure# vs. ?uerar, 127 "CA
295).
4OND OF SPECIAL ADMINISTRATOR(Sec.
C%ndi#i%ns1. make in'entory.
4. render accounting when re9uired
by court.
3. deli'er the same to person
appointed e*ecutor or
administrator or other
authoriDed persons.
!he bond is effecti'e as long as thecourt has $urisdiction o'er the
proceedings.
RULE *REVOCATION OF ADMINISTRATION/
DEAT2/ RESIGNATION AND REMOVAL OFEXECUTORS AND ADMINISTRATORS
f after letters of administration ha'e
been granted on the estate of the
decedent as if he had died intestate, +$s
$ll $s alloed and roved #+e our#,the letters of administration shall be
re'oked and all powers thereunder
cease, and the administrator shall
forthwith surrender the letters to the
court, and render his account within
such time as the court may direct.
!he disco'ery of a will does )! $so
a#onullify the letters of administration
already issued until the will has been
pro'ed and allowed pursuant to Rule 4
Sec. 1. (e &arreno vs. Aran3anso, No. L-27657, Au%. !0, 1982)
RESIGNATION OR REMOVAL OFEXECUTOR@ ADMINISTRATOR (S".4G"%-nds
1. neglect to render accountsF
(w@in 1 EAR or when the court
directsF
4. neglect to settle estate
according to these rulesF
3. neglect to perform an order or
$udgment of the court or a duty
e*pressly pro'ided by these
rulesF
. abscondingF or
?. insanity or incapability or
unsuitability to discharge thetrust. (Sec. 4
!hese grounds are "/0S2.
/awful acts of an administrator or
e*ecutor before the re'ocation,
resignation, or remo'al are 'alid unless
pro'en otherwise.(Sec.3
POERS OF NE EXECUTOR ORADMINISTRATOR (Sec.
1. collect and settle the estate not
administeredF4. prosecute or defend actions
commenced by or against the
former e*ecutor or
administratorF and
3. reco'er e*ecution on $udgments
in the name of former e*ecutor
or administrator.
RULE 3INVENTORY AND APPRAISAL PROVISION
FOR SUPPORT OF FAMILY
n'entory and appraisal must be made
within 3 #)!:S ro #+e %ran# o
le##ers #es#aen#ar or o
ad$n$s#ra#$on. (Sec.1
Appro'al of an in'entory is not a
conclusi'e determination of what assets
constituted the decedents estate and of
the 'aluation thereof. Such
determination is only pro'isional and a
prima facie finding of the issue of
ownership.
ALLOANCE TO IDO AND FAMILY,Sec)31A((%$nce > monetary ad'ances sub$ectto collation and deductible from their
share in the estate of the decedent.
!% $"e en#i#(ed #% $((%$nce d-"in6'"%ceedin6s=1. Le%$#$a#e sur'i'ing spouse
(Neoueno vs CA)F and4. "hildren of the decedent.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
12/36
San Beda College of Law111
MEMORYAIDINREMEDIALLAW
According to Art. 1 of the "i'il"ode, the children need not be minors
%" incapacitated to be entitled to
allowance.("an#ero vs CF o Cav$#e, No. 61700-0!, "e#. 24, 1987)
6randchildren are )! entitled to
allowance under Rule 3.('e$rs o u$3
vs CA)
>hen liabilities e*ceed the asset of the
estate, his widow and children are not
entitled to support pending the
li9uidation of the intestate estate, on
the ground that such support, ha'ing the
character of an ad'ance payment to bededucted from the respecti'e share of
each heir during distribution. (henthrough untruthfulness to the trust or his
own fault or for lack of necessary action,
the e*ecutor or administrator failed to
reco'er part of the estate which came to
his knowledge.
Administrator or e*ecutor shall not profitby the increase of the estate nor be
liable for any decrease which the estate,
without his fault, might ha'e sustained.
EXPENSES OF ADMINISTRATION: thosenecessary for the management of the
property, for protecting it against
destruction or deterioration, and
possibly for the production of fruits.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
13/36
San Beda College of Law112
MEMORYAIDINREMEDIALLAW
!en s!$(( e;ec-#%" %" $d5inis#"$#%""ende" $n $cc%-n#= (Sec.RULE:>ithin one year from the time ofrecei'ing letters testamentary or letters
of administration.EXCEPTION: An e*tension of time isallowed for presenting claims against or
paying the debts of the estate for
disposing of the estate but e'en in such
cases, the administration should be
terminated in not more than two-years
and a half.
RULE BCLAIMS AGAINST ESTATE
C($i5 - any debt or pecuniary demandagainst the decedents estate.
!en 5$9 $ c%-"# iss-e n%#ices #%c"edi#%"s #% &i(e #!ei" c($i5s=mmediately issued after granting letters
testamentary or of administration.
PURPOSE:for the speedy settlement ofthe affairs of the deceased person and
early deli'ery of the property of the
estate into the hands of the persons
entitled to recei'e it.
"laims arising AC!R his death cannot be
presented e*cept for%
a funeral e*pensesF and
b e*penses of the last sickness of
the decedent.
"laims for ta*es (inheritance and estate
due and assessed after the death of the
decedent need not be presented in the
form of a claim. !he court in the
e*ercise of its administrati'e controlo'er the e*ecutor or administrator may
direct the latter to pay such ta*es. And
the heirs, e'en after distribution are
liable for such ta*es.
STATUTE OF NON>CLAIMS (Sec.4
!en s!%-(d #!e c($i5s 8e &i(ed=GENERAL RULE: >ithin in the time fi*edin the notice which shall not more than
14 #)!:S nor less than < #)!:S after
the date of the CRS! &0B/"A!).
)therwise, they are BARR5 C)R2R.
'en if the testator acknowledged the
debt in his will and instructed the
e*ecutor to pay the debt, the statute ofnon-claims must still be complied withF
otherwise the claim may also be barred.
EXCEPTION:Belated "laims.
4e($#ed C($i5s are claims not filedwithin the original period fi*ed by the
court. )n application of a creditor who
has failed to file his claim within the
time pre'iously limited, at AE !#
BC)R an order of distribution is
entered, the court #AE, for cause shownand on such terms as are e9uitable,
allow such claim to be filed within a
time )! "56 1 #)!: from the
order allowing belated claims.
Statute of on-"laims supersedes the
Statute of /imitations insofar as the
debts of deceased persons are
concerned. :owe'er, B)!: statute of
on-"laims and Statute of /imitations
#0S! ")"0R in order for a creditor to
collect.
C($i5s !ic! $"e n%# &i(ed i#!in #!eS#$#-#e %& N%n>C($i5s $"e 8$""ed&%"ee" ,Sec)?1"laims referred to under this section
refer to claims for the reco'ery of
money and which are not secured by a
lien against the property of the estate.
(:lave vs. Carlos, 208 &+$l 678)
C($i5s !ic! s!%-(d 8e &i(ed -nde" #!eS#$#-#e %& N%n>c($i5s=
1. #oney claims, debts incurred bydeceased during his lifetime
arising from contract
4. e*press or implied
3. due or not due
. absolute or contingent
?. "laims for funeral e*penses and
for the last illness of the
decedent.
-
8/13/2019 SpecProc Memory Aid
14/36
San Beda College of Law113
MEMORYAIDINREMEDIALLAW
C%n#in6en# C($i5 conditional claim orclaim that are sub$ect to the happening
of a future uncertain e'ent.
"laims not yet due or contingent may beappro'ed at their present 'alue.
:)>2R, a creditor barred by the
Statute of on-claims may file a claim as
a ")0!R"/A# in any suit that the
e*ecutor or administrator may bring
against such creditor.
SOLIDARY O4LIGATION OF DECEDENT(Sec.
-
8/13/2019 SpecProc Memory Aid
15/36
San Beda College of Law114
MEMORYAIDINREMEDIALLAW
preempt prescription of $udgment.
(oualde3 vs. *$%lao, 105 "CA 762).
2ei" 5$9 n%# s-e -n#i( s!$"e $ssi6ned
(Sec.3Before distribution is made or before any
residue is known, the heirs and de'isees
ha'e no cause of action against the
e*ecutor or administrator for reco'ery of
the property left by the decedent.
P"%ceedin6s !en '"%'e"#9 c%nce$(ed/e58eHH(ed %" &"$-d-(en#(9 c%ne9ed(Sec.
-
8/13/2019 SpecProc Memory Aid
16/36
San Beda College of Law115
MEMORYAIDINREMEDIALLAW
!en #!e i(( '"%ides &%" '$95en# %&de8#s/ Sec#i%n * 5-s# 8e &%((%ed)Although testator acknowledged a
specific debt on his will, the creditor
must still file his claim in the testate orintestate proceedings, otherwise his
claim will be barred.
Es#$#e #% 8e "e#$ined #% 5ee#c%n#in6en# c($i5s (Sec.f the court is satisfied that contingent
claim duly filed is 'alid, it may order the
e*ecutor or administrator to retain in his
hands sufficient estate to pay a portion
e9ual to the di'idend of the creditors.
REUISITES1. contingent claim is duly filedF4. court is satisfied that the claim
is 'alidF and
3. !he claim has become absolute.
Is e;ec-#i%n $ '"%'e" "e5ed9 #% s$#is&9$n $''"%ed c($i5=NO, because%
1. &ayment appro'ing a claim does
not create a lien upon a property
of the estate.
4. Special procedure is for the
court to order the sale to satisfythe claim.
2% c%n#in6en# c($i5 8ec%5in6$8s%(-#e in #% 9e$"s $((%ed $nd '$id(Sec.?
f such contingent claim becomes
absolute and is presented to the court,
or to the e*ecutor or administrator,
within two years from the time limited
for other creditors to present their
claims. !he residual funds within the
estate, although already in thepossession of the uni'ersal heirs, are
funds of the estate. !he "ourt has
$urisdiction o'er them and it could
compel the heirs to deli'er to the
administrator of the estate the
necessary portion of such funds for the
payment of any claims against the
estate. (n re *es#a#e /s#a#e o
ar%ar$#a av$d, "$son vs. *eodoro, 98
&+$l 680)
f the contingent claim matures after the
e*piration of the two years, the
creditors may sue the distributees, who
are liable in proportion to the shares in
the estate respecti'ely recei'ed bythem. (@au$an vs. ?uerol, sura)
t has been ruled that the only instance
wherein a creditor can file an action
against a distributee of the debtors
assets is under Sec. ?, Rule of the
Rules of "ourt. !he contingent claims
must first ha'e been established and
allowed in the probate court before the
creditors can file an action directly
against the distributees. (e Bau#$s#a vs.
e u3an, 125 "CA 682)
Es#$#e %& Ins%(en# n%n"esiden#/ !%dis'%sed (Sec.=n the administration taken in the
&hilippines of the estate of the
S)/2! his estate in the &hilippines
shall be disposed of that his creditors in
and outside in the &hilippines in
proportion to their respecti'e credits.
!en $nd !% c($i5 '"%ed %-#side#!e P!i(i''ines $6$ins# ins%(en#
"esiden#s es#$#e '$id (Sec.1+"laims pro'en outside the &hilippines
where the e*ecutor had knowledge and
opportunity to contest its allowance
therein may be added to the list of
claims in the &hilippines against the
estate of an S)/2! RS5! and
the estate will be distributed e9ually
among those creditors.
:owe'er the benefit of Sections = and 1+
cannot be e*tended to the creditors of
foreign country where the property ofthe deceased therein is not e9ually
apportioned to creditors residing in the
&hilippines and other creditors.
Ti5e &%" '$9in6 De8#s $nd Le6$cies(Sec.1?
eed not e*ceed 1 year in the first
instance. But court e*tend on
application of e*ecutor or administrator
and after hearing and notice thereof.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
17/36
San Beda College of Law116
MEMORYAIDINREMEDIALLAW
*tension must not e*ceed si* months
for single e*tension. >hole period
allowed to the original e*ecutor or
administrator shall not e*ceed 4 years
(section 1? successor of dead e*ecutoror administrator may be gi'en an
e*tension not to e*ceed < months.
RULE SALES/ MORTGAGE AND OT2ER
ENCUM4RANCES OF T2E PROPERTY OFT2E DECEASED
O"de" %& s$(e %& 'e"s%n$(#9 (Sec.1!he court may order the whole or part of
the personal estate to be sold ifnecessary%
1. to pay debts and e*pense of
administrationF
4. to pay legaciesF or
3. to co'er e*penses for the
preser'ation of the estate.
!en c%-"# 5$9 $-#!%"iHe s$(e/5%"#6$6e %" %#!e" enc-58"$nces %&"e$(#9 #% '$9 de8#s $nd (e6$cies #!%-6!'e"s%n$(i#9 n%# e;!$-s#ed= (Sec. 4
1. f personal estate is )!sufficient to pay debts, e*penses
of administration and legaciesF
4. f sale of personal estate may
in$ure the business or interests
of those interested in the estateF
3. f testator has )! made
sufficient pro'ision for payment
of such debts, e*penses and
legaciesF
. f deceased was in his lifetime
under contract, binding in law to
deed real property to
beneficiaryF (Section ?. f the deceased during his
lifetime held real property in
trust for another person.
(Section =
REUISITESa application of
*ecutor@AdministratorF
b written notice to person
interestedF and
c hearing
Assets in the hands ofe*ecutor@administrator will not be
reduced to pre'ent a creditor from
recei'ing his full debt or diminish his
di'idends.
>ithout notice and hearing, the sale,
mortgage or encumbrance is 'oid. otice
is mandatory. oncompliance therewith
under the sale is null and 'oid.Reason% !he reason behind thisre9uirement is that the heirs are the
presumpti'e owner. Since they succeed
to all the rights and obligation of the
deceased from the moment of the
latters death, they are the person
directly affected by the sale or mortgageand therefore cannot be depri'ed of the
property, e*cept in the manner pro'ided
by law. (anelan% vs. Baun, 208 "CA
179)
M$9 #!e c%-"# $-#!%"iHe s$(e/ 5%"#6$6e%" %#!e" enc-58"$nce %& es#$#e #% '$9de8#s $nd (e6$cies in %#!e" c%-n#"ies=(Sec. ?
>hen it appears from records and
proceedings of a probate court of
another country that the estate of the
deceased in foreign country is notsufficient to pay debts and e*penses.
Application for authority to sell,
mortgage or encumber property of the
estate may be denied by the court if%
1. the disposition is not for any of
the reasons specified by the
rulesF )R
4. under Section 3 Rule =, any
person interested in the estate
gi'es a bond conditioned to pay
the debts, e*penses ofadministration and legacies.
RULE DISTRI4UTION AND PARTITION OF T2E
ESTATE
Li-id$#i%nmeans the determination ofall assets of the estate and payment of
all debts and e*penses.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
18/36
San Beda College of Law117
MEMORYAIDINREMEDIALLAW
!en %"de" &%" dis#"i8-#i%n %& "esid-e5$de (Sec.1
RULE:)R5R )C 5S!RB0!) shall be
made AC!R payments of all debts,funeral e*penses, e*penses for
administration, allowance of widow and
inheritance ta* is effected.
n these proceedings, the court shall%
1. collateF
4. determine heirsF and
3. determine the share of each
heir.
A separate action for the declaration of
heirs is not necessary.
!en is #i#(e es#ed=Crom CA/!E of order of distribution.
)nly after partition is appro'ed and not
before, the court may order the deli'ery
to the heirs of their respecti'e shares
e*cept when the heir file a bond
conditioned to pay the debts.
An order which determines the
distributi'e shares of heirs is appealable.
f not appealed, it becomes final.
!he probate court lose $urisdiction o'er
the settlement proceedings only upon
payment of all debts and e*penses of the
obligor and deli'ery of the entire estate
to all the heirs. (*$ol vs. Cano, 1
"CA 1271)
CONDITIONS PRECEDENT #% 8ec%5'(ied i#! &%" #!e iss-$nce %& $n%"de" %& dis#"i8-#i%n
1. Showing that the e*ecutor,
administrator or personinterested in the estate applied
for suchF and
4. !he re9uirements as to notice
and hearing upon such
application ha'e been fulfilled.
PRO2I4ITION AGAINST INTERFERENCE4Y OT2ER COURTS
As long as the order of distribution of
the estate has not been complied with,
the probate
probate proceedings cannot be deemed
closed and terminated, because a
$udicial partition is not final and
conclusi'e and does not pre'ent the
heirs from bringing an action to obtainhis share, pro'ided the prescripti'e
period therefore has not elapsed. !he
better practice, howe'er, for the heir
who has not recei'ed his share, is to
demand his share through proper motion
in the same probate or administrati'e
proceedings, or for the reopening of the
probate or administrati'e proceedings if
it had already been closed, and not
through an independent action, which
would be tried by another court or $udge
which may thus re'erse a decision ororder of the probate or intestate court
already final and e*ecuted and re-
shuffle properties long ago distributed
and disposed of. (*$ol vs. Cano,
sura).
RULE 0ESC2EATS
3 INSTANCES %& ESC2EATS1. >hen a person dies intestate
lea'ing no heir but lea'ingproperty in the &hilippines
(Section 1
4. R2RS) &R)"56S 8 Sale
in 'iolation of the "onstitutional
pro'ision
3. 0nclaimed Balance Act under
Banking /aws
!$# is #!e 8$sis %& #!e s#$#es "i6!# #%"eceie '"%'e"#9 in esc!e$#=)rder of succession under the "i'il "ode,
the S!A! is the last heir of thedecedent.
!% &i(es=Solicitor 6eneral or his representati'e in
behalf of the &hilippines.
!e"e #% &i(e=R!" of last residence or of location of
his estate in the &hilippines if he is a
non-resident.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
19/36
San Beda College of Law118
MEMORYAIDINREMEDIALLAW
f petition is sufficient in C)R# and
S0BS!A" the court shall%
1. #ake an )R5R )C :AR6 8
hearing shall not be more than GS.
REUISITES1. publication of the order
4. person died intestate
3. he is seiDed of real@personal
property in the &hilippines
. he left no heir or person entitled
to such property?. there is no sufficient cause to
the contrary
!he court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
&R#A! !R0S!, so that only the
income from the property shall be used.
CLAIM 4Y PERSONS ENTITLED TO T2EESTATE (Sec. !%=
By de'isee, legatee, heir, widow@er, orother person entitled thereto
!en #% &i(e=- >ithin ? EARS CR)# 5A! )C
7056#! otherwise fore'er barred.
OT2ER ACTIONS FOR ESC2EATS ,Sec) ?1- actions for re'ersion of property
alienated in 'iolation of
"onstitution or any statute.
- !hese shall be go'erned by Rule
=1. :)>2R, the action must
be instituted in the pro'incewhere the land lies in whole or
in part.
Pe"i%d% >ithin ? 9e$"sfrom the date of$udgmentF (under AR!. 1+1 of the "i'il
"ode, the ?-year period is reckoned from
the date the property was deli'ered to
the State and further pro'ides that if the
property had been sold, the municipality
or city shall be accountable only for such
part of the proceeds as may not ha'e
been lawfully spent.
49 !%5% person of interest
TO 2OM ILL T2E PROPERTYESC2EATED 4E ASSIGNED: (Sec. 3
1. if personal property, in themunicipality or city where he
last resided.
4. if real property, where the
property is situated.
3. if deceased ne'er resided in the
&hilippines, where the property
may be found.
C$n c%-"# c%ne"# esc!e$# '"%ceedin6sin#% %"din$"9 s'eci$( '"%ceedin6s %"ice>e"s$=
NO. !his is not allowed for the twoactions ha'e different re9uirements inac9uiring $urisdiction. n special
proceedings, publication is once a week
for 3 weeks while in escheat, once a
week for < weeks.
RULE *GUARDIANS2IP
6uardianship of minors is now
go'erned by the Rule on6uardianship of #inors (A.#. o.
+3-+4-+?-S" which took effect on
#ay 1, 4++3. >hile guardianship of
incompetents is still go'erned by
the pro'isions of the Rules of
"ourt on 6uardianship (Rule =4 to
Rule =;.
MINOR INCOMPETENT
1. any relati'eF or
4. other person onbehalf of a minorFor
3. the minorhimself if 1 yearsof age or o'erF or
. the Secretary ofSocial >elfare and5e'elopment A5by the Secretary of:ealth in case of aninsane minor whoneeds to behospitaliDed. (Sec.
4 A# +3-+4-+?-S"
1. any relati'eF
4. friendF or3. other person on
behalf of theresident incompe-tent who has noparents or lawfulguardianF or
. the 5irector of:ealth in fa'or ofan insane personwho should behospitaliDed or infa'or of an isolatedleper. (Sec. 1
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
20/36
San Beda College of Law119
MEMORYAIDINREMEDIALLAW
?. any one interestedin the estate of anon-resident
incompetent(Sec.14
?. any one interestedin the estate of anon-resident
incompetent (Sec.
-
8/13/2019 SpecProc Memory Aid
21/36
San Beda College of Law120
MEMORYAIDINREMEDIALLAW
!he petition in'ol'ing minors isre9uired to be 2RC5 and
accompanied by certification against
C)R0# S:)&&6 while that in'ol'ingincompetent must be 'erified only.
:)>2R, no defect in the petition or
'erification shall render 'oid the
issuance of letters of guardianship.
!here is ) re9uirement for
&0B/"A!), only notice "&! in
case of nonresident minor@incompetent.
:)>2R, ser'ice of )!" upon minor
if 1 years of age or o'er, or upon
incompetent is mandatory and$urisdictional.
f the person is insane, ser'ice of notice
upon the 5irector of :ospital where
hospitaliDed is sufficient.
OPPOSITION TO PETITION (Sec. G"%-nds
1. 5$ pertains to those relati'eswho are entitled to share in the estate
of the ward under the /aw on ntestate
succession including those who inherit
per stirpes or by right of representation.
Sale of the wards realty by the guardian
without authority from the court is 2)5.
0nder the law, a parent acting merely as
legal administrator of the property of
his@her children, does )! ha'e the
power to dispose of, or alienate, the
property of said minor without $udicial
appro'al (L$nda$n vs. CA, No. 95!05,
Au%. 20, 1992).
!he )rder of Sale must specify thegrounds.
C) D-"$#i%n %& #!e %"de" &%" s$(e $ndenc-58"$nce %& '"%'e"#9 > >ithin 1year from the granting of the order.
t is presumed that if the property
was not sold within 1 year, the ward
has sufficient income.
!he authority to sell or encumber shall
not e*tend beyond 1 year unless
renewed by the court.
GENERAL POERS AND DUTIES OFGUARDIANS
1. ha'e the care and custody of the
person of the ward, and the
management of his estate, or
the management of the estate
only, as the case may beF
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
22/36
-
8/13/2019 SpecProc Memory Aid
23/36
San Beda College of Law122
MEMORYAIDINREMEDIALLAW
E) 4%nd %& '$"en#s $s 6-$"di$ns %&'"%'e"#9 %& 5in%" (Sec. 1
-
8/13/2019 SpecProc Memory Aid
24/36
San Beda College of Law123
MEMORYAIDINREMEDIALLAW
!% 5$9 'e#i#i%n=&arties beneficially interested.
G"%-nds
1. essential in the interest ofpetitioners
4. insanity
3. incapability of discharging
trustee
. unsuitability
Rules on Sale and ncumbrance of !rust
state shall conform as nearly as may be
to the pro'isions on Sale and
ncumbrance by 6uardians.
ADOPTION AND CUSTODY OF MINORS
!he pro'isions of the Rules of "ourt onAdoption ha'e been amended by the
D%5es#ic Ad%'#i%n Ac# %& 0 andthe In#e"c%-n#"9 Ad%'#i%n Ac# %& 0?
EXCEPT: Secs < J ; of Rule ==
ffecti'e August 44, 4++4, there is a
new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTIONAdoption is a $uridical act, a proceeding
R#, which creates between two
persons a relationship similar to thatwhich results from legitimate paternity
and filiation.
)nly an adoption made through the
court, or in pursuance with the
procedure laid down under Rule on
Adoption is 'alid in this $urisdiction.
PURPOSE OF ADOPTION!he promotion of the welfare of the
child and the enhancement of his
opportunities for a useful and happy life,
and e'ery intendment is sustained topromote that ob$ecti'e.
2AT DOES T2E COURT DETERMINE INADOPTION CASES
1. capacity of the adopters
4. whether the adoption would be
the best interest of the child
Adoption is strictly personal between the
adopter and the adopted. (*eo$o vs.
el >al)
RULES ON ADOPTION ,Secs) 0>*?1
DOMESTIC ADOPTION
2O MAY ADOPT1. Any Cilipino "itiDen -
a of legal ageF
b in possession of full ci'il capacity
and legal rightsF
c of good moral characterF
d has not been con'icted of any
crime in'ol'ing moral turpitudeF
e emotionally and psychologically
capable of caring for childrenF
f in a position to support and care
for his@her children in keeping
with the means of the familyFand
g at least 1< EARS older than the
adoptee.
4. Any alien possessing the same
9ualifications as abo'eF pro'ided%
a !hat his@her country has
diplomatic relations with the
&:/&&SF
b !hat he@she has been li'ing in
the &hilippines for at least 3
")!0)0S EARS prior to the
filing of the application foradoptionF
c #aintains residence until the
adoption decree is enteredF
d "ertified to ha'e legal capacity
to adopt, by his@her countryF
and
e !hat his@her go'ernment allows
the adoptee to enter his@her
country as his@her adopted
son@daughter.
3. !he guardian with respect to theward after the termination of the
guardianship and clearance of his
financial accountabilities.
!he re9uirement of 1< EARS difference
between the adopter and the adoptee is
)! applicable if the adopter is%
1. the biological parent of the adoptee
4. the spouse of the adoptees parent
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
25/36
San Beda College of Law124
MEMORYAIDINREMEDIALLAW
!he re9uirement on residency and
certification of aliens 9ualification to
adopt may be >A25for the following%1. !he adoptee is a former Cilipino
citiDen who seeks to adopt arelati'e within the thdegree of
consanguinity or affinity.
2. )ne who seeks to adopt the
legitimate son@daughter of
his@her Cilipino spouse.
3. )ne who is married to a Cilipino
citiDen and seeks to adopt $ointly
with his@her spouse a relati'e
within the th degree of
consanguinity or affinity of the
Cilipino spouse.
2O MAY 4E ADOPTED1. Any person below eighteen (1
years of age who has been
$udicially declared a'ailable for
adoption )R 'oluntarily
committed to 5S>5.
4. !he legitimate child of one
spouse by the other spouse.
3. An illegitimate child by a
9ualified adopter to raise the
status to that of legitimacy.
. A person of legal age
regardless of ci'il status, if,prior to the adoption, said
person has been consistently
considered and treated by the
adopters as their own child since
minority.
?. A child whose adoption has been
pre'iously rescinded.
5 and the biological parents
of the adoptee, C G)>.
- if a change in the name of theadoptee is prayed for in the
petition, notice to the Sol. 6en.
Shall be #A5A!)RE.
4) C2ILD 2OME STUDY REPORTS(Sec.13
- social worker 'erifies with the
"i'il Registry the real identity
and the name of adoptee and
the fact that he is legally
a'ailable for adoption.
- social worker may makerecommendations to the court if
he finds some grounds to deny
the petition.
C) 2EARING (sec.1- to be held within < #)!:S from
the date of issuance of the order
EXCEPT:in case of A&&/"A!) C)R":A6 )C A# which hearing
must not be within #)!:S after
/AS! &0B/"A!) nor within 3+
5AESr$or #o ele#$on.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
26/36
San Beda College of Law125
MEMORYAIDINREMEDIALLAW
- the petitioner and the adoptee
must personally appear and the
former must testify in court.
D) SUPERVISED TRIAL CUSTODY ,STC1(Sec.1?
Before issuance of decree of
adoption the court shall gi'e the
adopter trial custody of the adoptee
for at least < #)!:S.
Re$s%n: So the parties will ad$ustpsychologically and emotionally to
each other and establish a bonding
relationship.
"ourt may reduce or e*empt partiesfrom S!".
GENERAL RULE:Alien adopter must complete the /CAR or for
!: >/CAR of said person
4. Such person or one ha'ing
charge of him is opposed or his
being taken to hospital or asylum
DISC2ARGE OF INSANE (Sec. 5irector of :ealth may file this petition
when he is of the opinion that the personis permanently or temporarily cured or
may be released without danger
RULE 0*2A4EAS CORPUS
2$8e$s c%"'-s e;#ends #%:(Sec.11. cases of illegal confinement or
detention by which a person is
depri'ed of his libertyF and
4. cases by which the rightful custody of
the person is withheld from the
person entitled thereto
!he restraint must be actual,effecti'e and material. !he person need
not actually be confined as long as
freedom of action is limited. (onua
vs. /nr$le, No. 61107, Ar. 26, 198!)
"i# %& 2$8e$s C%"'-s - a commanddirected to the person detaining
another, re9uiring him to produce the
body of the person detained at a
designated time and place, and to
produce and to show cause and to
e*plain the reason for detention.
PURPOSE!he essential ob$ect and purpose of the
writ of habeas corpus is to in9uire into
all manner of in'oluntary restraint as
distinguished from 'oluntary, and to
relie'e a person therefrom if such
restraint is illegal. (onua vs. /nr$le,
sura)
And any further rights of the parties are
left untouched by decision on the writ,
whose principal purpose is to set theindi'idual at liberty. (>$llav$en$o vs.
Luan)
!he pri'ilege of writ is so sacred that,
according to our ")S!!0!), it shall
not be suspended e*cept in cases of
in'asion or rebellion when public
security re9uires it (Art. , Sec. 1?.
IN CASES OF ILLEGAL CONFINEMENT ORDETENTION
GENERAL RULE: !he release, whetherpermanent or temporary, of a detained
person renders the petition for habeas
corpus moot and academic.
EXCEPTION: >hen there are restraintsattached to his release which precludes
freedom of action, in which case the
court can still in9uire into the nature of
his in'oluntary restraint. (>$llav$en$o
vs. Luan)
!e#!e" #!e S#$#e c$n "ese"e #!e'%e" #% "e>$""es# $ 'e"s%n &%" $n
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
29/36
-
8/13/2019 SpecProc Memory Aid
30/36
San Beda College of Law129
MEMORYAIDINREMEDIALLAW
f. hearing on return.
T% !%5 "i# di"ec#ed $nd !$# #%"e-i"e) (Sec.
-
8/13/2019 SpecProc Memory Aid
31/36
San Beda College of Law130
MEMORYAIDINREMEDIALLAW
b. ither parent, taking into
account all rele'ant
considerations, especially the
choice of the minor o'er se'en
years of age and of sufficientdiscernment unless the parent
chosen unfitF
c. !he grandparent or if there are
se'eral grandparents,
grandparent chosen by the minor
o'er se'en years of age and of
sufficient discernment, unless
the grandparent chosen is unfit
or dis9ualifiedF
d. !he eldest brother or sister o'er
twenty years of age unless he or
she is unfit or dis9ualifiedFe. !he actual custodian of the
minor o'er twenty years of age,
unless the former is unfit or
dis9ualifiedF or
f. Any other person or institution
the court may deem suitable to
pro'ide proper care and
guidance for the minor.
Te5'%"$"9 Visi#$#i%n Ri6!#s (Sec.1?!he court shall pro'ide in its order
awarding pro'isional custody appropriate
'isitation rights to the non- custodial
parent or parents, unless the court finds
said parent or parents unfit or
dis9ualified.
Pe#i#i%n &%" "i# %& 2$8e$s C%"'-s(Sec. 4+
shall be filed with the Camily
court.
shall be enforceable within its
$udicial region to which the
Camily "ourt belongs.
the petition may howe'er befiled with the regular court inthe absence of the presiding
$udge of three Camily "ourt,
pro'ided howe'er that the
regular court shall refer the case
to the family "ourt as soon as its
presiding $udge returns duty.
petition may also be filed with
the S", "A, or with any of its
members and, if so granted the
writ shall be enforceable
anywhere in the &hilippines. !he
writ may be made returnable to
a Camily court or to any regular
court within the region wherethe petitioner resides or where
the minor may be found for
hearing and decision on the
merits.
RULE 03C2ANGE OF NAME
Ven-e (Sec. 1R!" of the pro'ince in which he resides.
C%n#en#s %& Pe#i#i%n (Sec.4t shall set forth%
1. that petitioner is a bonafide
resident of the pro'ince where
petition is filed for at least three
years prior to the date of filingF
2. all names by which petitioner is
knownF
3. cause for change of nameF
4. name asked for.
&etition shall be signed and 'erified by
person desiring his name changed or
some other person in his behalf.
Re9uirement of 'erification is formal,
)! $urisdictional re9uisite. t is not a
ground for dismissing petition.
J-"isdic#i%n$( Re-i"e5en#s1. the 'erified petition should be
published for three successi'e
weeks in some newspaper of
general circulation in the
pro'inceF
2. that both the title and caption ofthe petition and its body shall
recite%
a name @names or aliases of
the applicantF
b cause for which the change
of name is soughtF
c new name asked for. ("ean
o vs. eul$, 52 "CA
!22).
2e$"in6 - shall not be within 3+ daysprior to an election nor within #)!:S
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
32/36
San Beda College of Law131
MEMORYAIDINREMEDIALLAW
after the /AS! &0B/"A!) of notice of
hearing.
E&&ec#s %& Disc"e'$nc9 in #!e Pe#i#i%n
$nd P-8(is!ed O"de"!he defect in the petition and the order,
as to the spelling of the name of the
petitioner, is substantial, because it did
not correctly identify the party to said
proceedings.
G"%-nds &%" c!$n6e %& n$5e1. name is ridiculous, tainted with
dishonor and e*tremely difficult
to write or pronounceF
2. conse9uence of a change of
statusF e.g. legitimated childF3. necessity to a'oid confusionF
4. ha'ing continuously used and
been known since childhood by a
Cilipino name, unaware of her
alien parentageF
5. a sincere desire to adopt a
Cilipino name to erase signs of
former alienage, all in good faith
and without pre$udicing
anybody.
TITLE OF PETITION MUST CONTAINED
T2E FOLLONG1. )fficial name (birth certificate 8
be 'ery particular with the
spelling because it may a'oid or
annul the proceedingsF it is
$urisdictionalF
2. all aliasesF and
3. name asked for.
All the names or aliases must appear in
the title or caption of the petition,
because the reader usually merely
glances at the title of the petition andmay only proceed to read the entire
petition if the title is of interest to him.
("ean o vs. eul$,sura).
A decree of adoption grants the adoptee
the right to use the adopters surname
but not to change the formers first
name which relief must be sought in a
discrete petition under Rule 1+3.
(eul$ vs. 'ernande3, N:.
117209, Feruar 9, 1996.
Cor administrati'e procedure for"hange of ame, refer to Administrati'e
)rder 1, Series of 4++. t only applies
to%
1. clerical errorsF and4. innocuous errors.
RULE 07A4SENTEES
A4SENTEE CONSEUENCE
+-4 years --------
4 years to ; years &etition fordeclaration of
absence may be filed
Beyond ; years
(absence of years
under e*traordinary
circumstance
"onsidered dead for
all intents and
purposes e*cept for
purposes of
succession
Cor purposes of
marriage% years
continuous absence
shall be sufficient for
present spouse to
remarry, 4 years only
under e*traordinary
circumstance
PURPOSE OF PETITION > to appoint anadministrator o'er the
properties of the absentee.
:ence, if absentee left no
properties, such petition is
unnecessary.
GROUNDS FOR TERMINATION OF T2E
ADMINISTRATION1. absentee personally appears
through an agent
4. absentee death is pro'en and
heirs appear
3. third person appears showing
that he ac9uired title o'er the
property of the absentee
. Actual or presumpti'e death
cannot be the sub$ect if it is the
onlt 9uestion or matter in'ol'ed
in a case or upon which a
competent court has to pass.
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
33/36
San Beda College of Law132
MEMORYAIDINREMEDIALLAW
(Luan vs. eul$, No.
8492, Feruar 29, 1956)
N% inde'enden# $c#i%n &%" Dec($"$#i%n%& P"es-5'#i%n %& De$#!E;ce'#i%n: the need for declaration ofpresumpti'e death for purposes of
marriage (Article 1 of the Camily "ode.
RULE 0CANCELLATION OR CORRECTION OF
ENTRIES IN T2E CIVIL REGISTRY
Republic Act o. =+ which was passed
by "ongress on Cebruary , 4++1substantially amended Article 14 of the
ew "i'il "ode, to wit%
SECTION 0)Authority to "orrect "lericalor !ypographical rror and "hange of
Cirst ame or ickname.Lo entry in a
ci'il register shall be changed or
corrected without a $udicial order,
e*cept for clerical or typographical
errors and change of first name or
nickname which can be corrected or
changed by the concerned city or
municipal ci'il registrar or consulgeneral in accordance with the
pro'isions of this Act and its
implementing rules and regulations.
!he abo'e law speaks clearly. "lerical or
typographical errors in entries of the
ci'il register are now to be corrected
and changed without need of a $udicial
order and by the city or municipal ci'il
registrar or consul general. !he ob'ious
effect is to remo'e from the ambit of
Rule 1+ the correction or changing of
such errors in entries of the ci'ilregister. :ence, what is left for the
scope of operation of Rule 1+ are
substantial changes and corrections in
entries of the ci'il register. (Lee vs. CA,
.. No. 118!87, :#oer 11, 2001).
Re-isi#es %& Ade"s$"i$( '"%ceedin6s1. &roper petition is filed where the
"i'il Registrar and all parties
interested are impleaded.
4. !he order of the hearing must be
published once a week for three
consecuti'e weeks.
3. otice thereof must be gi'en to the
"i'il Registrar and all partiesaffected thereby.
. !he ci'il registrar and any person
ha'ing or claiming any interest under
the entry whose cancellation or
correction is sought may, within 1?
days from notice of the petition or
from the last date of publication of
such notice, file his opposition
thereto.
?. Cull blown trial.
&roceedings for the correction ofentries should not be considered asestablishing ones status in a manner
conclusi'ely beyond dispute. !he status
corrected would not ha'e a superior
9uality for e'identiary purposes. !here is
no increase or diminution of substanti'e
right. (C+$ao Ben L$ vs. osa, L- 40252,
eeer 29, 1986)
PETITIONS FORC2ANGE OF
NAME
PETITIONS FORT2E CORRECTION/CANCELLATION OF
ENTRIES
&etition to be filed
in the R!" where
the petitioner
resides
2erified petition filed
in the R!" where the
corresponding "i'il
registry is located
Solicitor 6eneral
must be notified by
ser'ice of a copy of
the petition.
"i'il registrar
concerned is made a
party to the
proceeding as a
respondent. !he
Solicitor 6eneral
must also be notified
by ser'ice of a copyof the petition.
&etition is filed by
person desiring to
change his name
&etition is filed by
any person interested
in any A"!, 2!,
)R5R or 5"R
)rder for hearing
shall be published
once a week for
three consecuti'e
weeks
)rder shall also be
published once for
three consecuti'e
weeks and court shall
cause reasonable
notice to persons
named in petition
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
34/36
San Beda College of Law133
MEMORYAIDINREMEDIALLAW
Ser'ice of $udgment shall be upon the ci'il
register concerned
&etition for change of name ,R-(e 031and petition for cancellation or
correction of entries are 5S!"!&R)"56S.
:ence, a party cannot change name and
correct an entry in a single petition
without satisfying the $urisdictional
re9uirements. (eul$ v. Balore)
RULE 0APPEALS IN SPECIAL PROCEEDINGS
O"de"s %"
-
8/13/2019 SpecProc Memory Aid
35/36
San Beda College of Law134
MEMORYAIDINREMEDIALLAW
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING VENUE JURISDICTION
1. Settlement of the state Resident of the 5ecedent orif the decedent is a non-
resident, place where he
had an estate
#!" if the gross 'alue of theestate does not e*ceed &4++,+++,
or &++,+++ in #etro #anila
R!" if the gross 'alue of the
estate e*ceeds the abo'e amounts
4. scheat a. Pe"s%n dies in#es#$#e
(e$in6 n% !ei"8 Resident of
the decedent or if non-
resident, in the place where
he had an estate.
R!"
b. Ree"si%n8 >here the
land lies in whole or in part
R!"
c. Unc($i5ed 4$($nce8
>here the dormant deposits
are located
R!"
?. Appointment of
6uardians
>here the minor or
incompetent resides
Camily "ourt (in case of #inors
R!" (Regular courtsLin cases
other than minors
here the will was allowedor where the property or
portion thereof affected by
the trust is situated
R!"
;. Adoption >here the adopter resides Camily "ourt
. Rescission of Adoption >here the adoptee resides Camily "ourt
=. :abeas "orpus >here the detainee is
detained (if the petition is
filed with the R!"
S", "A, R!", #!" in the pro'ince
or city in case there is no R!"
$udge
REMEDIALLAWCOMMITTEE
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae
%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence
-
8/13/2019 SpecProc Memory Aid
36/36