SPECIAL PROCEEDINGS

I. INTRODUCTION

Definition of terms:
1. Special proceeding: A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.

2. Probate: Probate is a special proceeding to establish the validity of a

will. No will passes property unless it is probated by a court. Probate is
mandatory. It is in rem. Hence, the court is also called a probate court. But
a probate court also includes a court that presides over probate
proceedings which can generally refer to the settlement of the estate of a
deceased person with or without a will.

3. Reprobate: Reprobate is a special proceeding to establish the validity of

a will proved in a foreign country.

4. Legacy: A legacy is a bequest of personal property in a will to a person

called the legatee.

5. Devise: A devise is a bequest of real property in a will to a person called

the devisee.

6. Testate Estate: Testate estate refers to an estate of a deceased person

which is settled or to be settled with the last will and testament of that
deceased person called the testator.

7. Intestate Estate: Intestate estate refers to the estate of a deceased

person without a will. The estate is settled by the laws of intestacy provided
in the Civil Code.

8. Executor: An executor is the person named in the will who is entrusted

to implement its provisions. But the executor needs to be issued letters
testamentary after the court determines his or her qualifications. A female
executor is called executrix.

9. Administrator: An administrator is the person entrusted with the care,

custody and management of the estate of a deceased person until the
estate is partitioned and distributed to the heirs, legatees and devisees, if
any. A female administrator is called administratrix.

Note: The court issues letters of administration to a person after s/he

qualifies in the sound discretion of the court.

It is possible that a will can be probated without a testator or

with a testator who is disqualified to enter upon the trust. Hence, the
court can issue letters of administration with the will annexed.

10. Escheat: Escheat, a term of French or Norman derivation meaning

chance or accident, is the reversion of property to the State when the title
thereto fails from defect of an heir. It is the falling of a decedent's estate
into the general property of the State.
11. Guardians: A guardianship is a trust relation in which one person acts
for another whom the law regards as incapable of managing his own affairs.
The person who acts is called the guardian and the incompetent is called
the ward.

12. Trustee: A trustee is a person appointed by a court to carry out the

provisions of a will, as provided in Rule 98. As generally understood, a trust
is the legal relationship between one person having an equitable ownership
in property and another person owning the legal title to such property. The
beneficiary of the trust is known as the cestui que trust or the cestui que
trustent (the plural form).

13. Fideicommissary substitution: Fideicommissary substitution takes

place where the testator designates a person as an heir charging him to
deliver to another the whole or part of the inheritance under circumstances
provided in Art. 863 of the Civil Code, formerly Art. 781 of the Spanish Civil
Code. In the civil-law jurisdiction, this is the nearest equivalent of the
concept of trust in the common-law jurisdiction.

14. Habeas corpus: The Latin term habeas corpus which literally means
'you have the body,' is a high prerogative writ, of ancient common-law
origin, the great object of which is the liberalization of those who may be
imprisoned without sufficient cause. Basically, it is a writ directed to the
person detaining another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and cause of his
capture and detention, to do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that behalf.

15. Adoption: Adoption is a juridical act which creates between two

persons a relationship similar to that which results from legitimate paternity
and filiation.

16. Change of Name: Change of name is a judicial proceeding in rem,

requiring publication, and may be ordered by the court if proper and
reasonable cause exists to justify it.

17. Family Home: The Family Home is the dwelling house where a
husband and wife, or an unmarried head of a family resides, and the land
on which it is situated, which is now deemed constituted from the time it is
occupied as a family residence, and is exempt from execution, forced sale
or attachment except as provided by law and to the extent of the value
allowed by law. Note: Rule 106, which provides for the judicial constitution
of a Family Home, is already extinct going by the Family Code which does
not require a judicial constitution of the Family Home.

18. Absentees: An absentee is a person whose whereabouts and existence

are not known in the sense of the law allowing a subsequent marriage and
for purposes of administration of the estate of the absentee and of
succession.

19. Civil Registry: The civil registry is the public record where acts, events
and judicial decrees concerning the civil status of persons are entered.
20. Multiple Appeals: Multiple appeals are appeals in special proceedings,
as first provided in the Interim Rules of Court, where a number of appeals
may be taken separately or simultaneously by different parties for different
purposes. A record on appeal is necessary in order not to prejudice the
proceedings that will have to continue and that may have to stop or be
suspended if the entire record of the proceedings is elevated.

Rules That Govern Special Proceedings

 The 1997 Rules of Civil Procedure shall govern the procedure to be

observed in actions, civil or criminal, and special proceedings.
 In the absence of special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable in special
proceedings.
 Rules regarding the preparation, filing and service of applications,
motions and other papers, are the same in civil actions and in special
proceedings. Provisions regarding the omnibus motion rule,
subpoena, computation of time, motion for new trial, discovery, and
trial before commissioners also apply in special proceedings. The
procedure of appeal is generally the same in civil actions as in special
proceedings.
 The rule on demurrer to evidence in civil cases, by virtue of which the
defendant does not lose the right to offer evidence in the event that
his motion is denied, is applicable in special proceedings.

The Special Proceedings provided under the Rules Of

Court

1. Settlement of estate of deceased persons (Rules 73 to 90);

2. Escheat (Rule 91);
3. Guardianship and custody of children (Rules 92-97);
4. Trustees (Rule 98);
5. Adoption (Rule 99);
6. Rescission and revocation of adoption (Rule 100);
7. Hospitalization of insane persons (Rule 101);
8. Habeas corpus (Rule 102);
9. Change of name (Rule 103);
10. Voluntary dissolution of corporations (Rule 104) which under
Presidential Decree No. 902-A, should be filed with the Securities and
Exchange Commission and governed by specific rules;
11. Judicial approval of voluntary recognition of minor natural children (Rule
105);
12. Constitution of the Family Home (Rule 106), rendered inexistent by the
Family Code which provides for an automatic constitution of the family
home;
13. Declaration of absence and death (Rule 107); and
14. Cancellation or correction of entries in the civil registry (Rule 108).

Special Proceedings under Various Laws

1. Summary Proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (Rep. Act No. 8369)
2.1 Petitions on foster care and temporary custody
2.2 Declaration of nullity of marriage under Article 36, Family Code
2.3 Cases of domestic violence against women and children (special
provisional remedies and temporary custody of children and support
pendente lite)
3. Proceedings under the Child and Youth Welfare Code (Pres. Decree No.
1083), the Child Abuse Act (Rep. Act No. 7610) and the Child Employment
Act (Rep. Act No. 7658)
3.1 Declaration of status as abandoned, dependent or neglected children
3.2 Voluntary or involuntary commitment of children
3.3 Suspension, termination, or restoration of parental authority
4. Inter-country adoption under Republic Act No. 8043
5. Jurisdiction of Family Courts

SETTLEMENT OF ESTATE OF DECEASED PERSONS

1. Jurisdiction and Venue

 The settlement of the estate of deceased persons shall be in the court

of the place of residence of the deceased at the time of his death,
whether he is a citizen or an alien.

 If the deceased is an inhabitant of a foreign country, then the

settlement shall be in the court of any place in which he had estate.

Note: Sec. 1, Rule 73, Rules of Court which substantially contains the
foregoing rules still remain unamended after the passage of Batas Blg. 129.
Said Sec. 1 still speaks of 'Court of First Instance,' instead of 'Regional Trial
Court' and 'province' which in other parts of the Rules had been changed to
'place.' But under Batas Blg. 129, the jurisdiction over settlement
proceedings is not limited to Regional Trial Courts but include Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, where
the value of the estate does not exceed Php 300,000 outside or in Metro
Manila, Php 400,000.

 The jurisdiction of a probate court is determined by the place of

residence of the deceased person or of the location of his estate, but
the matter really constitutes venue.

Important rule: The jurisdiction assumed by a court, so far as it depends

on the place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears on the
record. This is to preclude different courts from assuming jurisdiction.

 The term 'resides' refers to 'actual residence' as distinguished from

'legal residence' or domicile.'

 The liquidation of the conjugal or community property of a deceased

husband or wife shall be made in his or her estate proceedings, but if
both spouses are deceased, then in the estate proceeding of either.

 Shari'a Courts have exclusive original jurisdiction in matters of

settlement of the estate of deceased Muslims.
Kinds of settlement
On the basis of the form of settlement, there are three kinds:

a. Extrajudicial settlement;
b. Summary settlement of estates of small value; and
c. Judicial settlement through letters testamentary administration with or
without the will annexed.

A. Extrajudicial settlement

 An extrajudicial settlement may be made by the heirs of a deceased

person without having to secure letters of administration.

The following requisites must be present or followed:

1. The decedent left no will and no debts.

Note: It shall be presumed that the decedent left no debts if no creditor

files a petition for letters of administration within two (2) years after the
death of the decedent.

2. A bond equivalent to the value of the personal property of the estate

is posted with the Register of Deeds.

Note: The value must be certified to under oath by the parties

concerned and the bond must be conditioned upon the payment of any
just claim that may be filed.

3. The fact of settlement is published in a newspaper of general

circulation once a week for three (3) consecutive weeks.

Note: No extrajudicial settlement shall be binding upon any person who

has not participated therein or had no notice thereof.

The extrajudicial settlement may follow any one of three (3) ways:

(a) Public instrument.- A public instrument is executed by all the

heirs to be filed with the Registry of Deeds.

(b) Action for Partition.- If the heirs cannot agree on the division of
the estate, an ordinary action for partition may be filed. or
letters of

(c) Affidavit of self-adjudication.- If there is only one heir, then the

heir may execute an affidavit adjudicating to himself or
herself the entire estate, which affidavit shall be filed with the
register of deeds.

Minor heirs:

If there are minor heirs, they may be represented by their "judicial or legal
representatives duly authorized for the purpose."
 B. Summary settlement of estates of small value
 When the gross value of the estate of a deceased person does not
exceed Php 10,000.00, upon a proper petition, the court having
jurisdiction, may proceed summarily to settle the estate, without the
appointment of an executor or administrator, and without delay.

 The petition may be filed by an interested person which should make

such value appear to the court.

 The hearing on the petition shall be held not less than one (1) month
nor more than three (3) months from the date of the last publication
of the notice.

 The notice shall be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province. Notice
shall also be given to all interested persons as the court may direct.

 After hearing, the court may grant, if proper, allowance of the will, if
any there be, determine the persons legally entitled to participate in
the estate, and apportion and divide it among them after payment of
the debts of the estate.

 Those who are entitled to the estate, if they are of age and with
legal capacity, or by their guardians and trustees legally appointed
and qualified, shall be entitled to receive their share of the estate.

 The court may issue an order respecting the costs of the

proceedings.

 All orders and judgments shall be recorded in the office of the

clerk, and the order of partition or award, if it involves real estate,
shall be recorded in the proper register's office. No longer the
Court of First Instance as provided in Sec. 2, Rule 74 but a
Metropolitan or Municipal Court because the value of the property
does not exceed Php 200,000 for both Metro Manila and outside
Metro Manila (B.P. Blg. 129, Sec. 33[1]; R.A. No. 7691, Sec. 5.)

C. Judicial settlement with letters testamentary or with

letters of administration
Settlement shall otherwise be in court in special proceedings through a full-
blown procedure with either a testator or an executor managing the estate
of the deceased until partition and distribution after the payment of debts,
legacies and devises.

Probate of Wills
 A will is an act whereby a person is permitted with all the formalities
prescribed by law to control to a certain degree the disposition of his
estate, to take effect after his death. It is otherwise called a 'last will
and testament.'

a) It may be a notarial will with certain important

requisites.
  Every will must be in writing and executed in a language or dialect
known to the testator.
 Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction,
and attested and subscribed by three (3) or more credible witnesses
in the presence of the testator and of one another.
 The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
 Every will must be acknowledged before a notary public by the
testator and the witnesses.
Rule: If the will is not contested, only one (1) subscribing witness needs to
testify;
if the will is contested, all subscribing witnesses and the notary must
testify.

b) It may be a Holographic will if it is in the handwriting of the

testator, but it must be entirely written, dated and signed by
him.

 It is subject to no other form, may be made in or out of the

Philippines, and needs no witnesses.
 At least one witness should testify that the will and the signature
thereon are in the handwriting of the testator. If the holographic will is
contested, at least three (3) witnesses who know the handwriting of
the testator must testify but in the absence of any competent witness,
if the court deems it necessary, expert testimony may be resorted to.
Time to submit to the court
Reglementary periods:
a. Within twenty (20) days from knowledge of the death of the testator,
the custodian of a will shall deliver it to the court having jurisdiction or
to the executor named in the will.

b. B. On the other hand, the executor has twenty (20) days from
knowledge of the death of the testator or knowledge of the fact that
he is named executor to submit the will to the court unless the will
has reached the court already. Within the same period, he shall
signify to the court in writing whether he accepts or refuses the trust.

Penalties:

 A person who neglects to comply with the foregoing two provisions,

without excuse satisfactory to the court, shall be fined not exceeding
Php 2,000.00.
 The custodian who refuses to comply with the order of the court to
deliver the will, when he is ordered to do so, may be committed to
prison until he delivers the will.

Procedure in the Probate of A Will

1. The contents of a petition for the allowance of a will are:

1.1 The jurisdictional facts;

 a. The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;

b. The probable value and character of the property of the estate;

c. he name of the person for whom letters are prayed;

d. If the will has not been delivered to the court, the name of the
person having custody of it.

Note: But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration with the will
annexed.

Time for proving the will

The court shall fix a time and place for proving the will when all concerned
may appear to contest the allowance thereof.

Note: However, the court need not go through the probate of a will that
preterited a compulsory heir since preterition invalidates the will.

Publication of notice:

The court shall cause notice of such time and place to be published three
(3) weeks successively, previous to the time appointed, in a newspaper of
general circulation in the province.

Note: Where the petition for probate has been filed by the testator himself,
no newspaper publication shall be made.

Persons entitled to notice

Heirs, devisees, legatees, and executors should be notified by mail or
personally.

Note: The mail should be deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the hearing, if the
places of residence be known.

 Personal service of copies of the notice at least ten (10) days before
the day of hearing shall be equivalent to mailing.

 If the testator asks for the allowance of his own will, notice shall be
sent only to his compulsory heirs.

Proof at hearing-

At the hearing, compliance with the provisions on notice and its

publication must be shown before the introduction of testimony in support
of the will. All testimony shall be taken under oath and reduced to writing.

Lost or destroyed will-

No will shall be proved as a lost or destroyed will unless:

1. the execution and validity of the same be established; and

2. the will is proved to have been in existence at the time of the death of
the testator, or is shown to have been fraudulently or accidentally
destroyed during the lifetime of the testator without his knowledge; nor
3. unless its provisions are clearly and distinctly proved by at least two (2)
credible witnesses.
Deposition-

If none of the subscribing witnesses resides in the province, the court may,
on motion, direct a deposition to be taken, and may authorize a
photographic copy of the will to be made and to be presented to the witness
on his examination.

Unavailable witnesses-

If the subscribing witnesses are dead or insane, or none of them resides in

the Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator; the due execution of the will; and proof of
the handwriting of the testator and of the subscribing witnesses, or of any
of them.

Contesting a will:

Anyone appearing to contest the will must state in writing his grounds for
opposing its allowance, and serve a copy thereof on the petitioner and other
parties interested in the estate.

Grounds for disallowing a will:

The will shall be disallowed in any of the following cases:

1. If not executed and attested as required by law;
2. If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
3. If it was executed under duress, or the influence of fear, or threats;
4. If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
5. If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of
fixing his signature thereto.

Executors and Administrators

No person is competent to serve as executor or administrator who is
(a) a minor;
(b) not a resident of the Philippines; and
(c) in the opinion of the court, unfit to execute the duties of the trust by
reason of drunkenness, improvidence, or want of understanding or integrity,
or by reason of conviction of an offense involving moral turpitude.

Appointment of Executors (who may become executors)

 After a will is proved and allowed, the court shall issue letters
testamentary thereon to the person named as executor therein, if he
is competent, accepts the trust, and gives bond as required by the
rules. It is clear that an executor is one who is named in a will.
 There may be several executors named in the will. Letters
testamentary may issue to such of them as are competent, accept
and give bond. If no executor named qualifies, then an administrator
is appointed.

Appointment Of Administrators; Priorities Administration

may be granted:
 a) To the surviving spouse, or next of kin, or both, or to such person as
such surviving spouse or next of kin, requests to be appointed, if
competent and willing to serve.
b) To one or more of the principal creditors, if competent and willing to
serve, in default of the foregoing or if the surviving spouse or next of
kin neglects for thirty (30) days after the death of the deceased to file
a petition for administration or the request that administration be
granted to some other person.
c) To such other person as the court may select, in default of the
foregoing.

Note: The court may disregard the preference above enumerated in its
sound discretion and its decision will not be interfered with on appeal unless
it appears that it is in error.

Appointment Of Special Administrators

A special administrator may be appointed '(w)hen there is delay in
granting letters testamentary or of administration by any cause including an
appeal from the allowance or disallowance of a will." The special
administrator shall take possession and charge of the estate of the
deceased until questions causing the delay are decided and executors or
administrators appointed.

 While the qualifications of a special administrator are not spelled out

in the rules, the appointment should be within the sound discretion of
the court and such discretion should not be a whimsical one. There is
no reason why the same fundamental and legal principles governing
the choice of a regular administrator should not be taken into account
in the appointment of a special administrator. However, the court is
not bound to follow the order of preference set up for the
appointment of a general administrator.

 Only one special administrator at a time may be appointed, since the

appointment is merely temporary.

Powers and duties

The special administrator shall take possession and preserve the goods,
chattels, rights, credits, and estate of the deceased and for that purpose
may commence and maintain suits as administrator. He may sell only such
perishable and other property as the court orders sold. He is not liable to
pay any debts of the deceased unless so ordered by the court.

 The court has no power to order a special administrator to sell real

property of the estate pending resolution of the issue of the
appointment of the regular administrator.

 A special administrator does not have the power to close the estate
because he normally does not pay the debts of the deceased.
However, he can be sued. There is no express prohibition; otherwise,
prescription may set in if the appointment of the regular administrator
is delayed.

Termination:
The special administrator may be removed on grounds other than those
mentioned in Rule 82. When an executor or administrator is appointed, the
powers of the special administrator cease. He shall immediately deliver the
estate to the executor or administrator who may prosecute to final
judgment suits commenced by the special administrator.

Bond of Administrator or Executor

Before an executor or administrator enters upon the execution of his trust,

he shall give a bond, in such sum as the court directs, conditioned as
follows:
a) To make and return within three (3) months, a true and complete
inventory;
b) To administer the estate and pay and discharge all debts, legacies,
and charges on the same, or dividends thereon;
c) To render a true and just account within one (1) year, and at any
other time when required by the court; and
d) To perform all orders of the court.

Further bond.
The executor may serve without bond if the testator so directs, or with only
his individual bond, conditioned only to pay the debts of the testator; but
the court may require a further bond in case of a change in his
circumstances, or for other sufficient cause.

II. GUARDIANSHIP
Necessity For Guardianship. A court will have no jurisdiction to render
judgment against one adjudged physically and mentally incompetent to
manage her affairs where no guardian was appointed upon whom summons
and notice of the proceedings might be served.

The incompetent includes

(1) persons suffering from the penalty of civil interdiction;
(2) hospitalized lepers;
(3) prodigals;
(4) deaf and dumb who are unable to read and write;
(5) those who are of unsound mind even though they may have lucid
intervals; and
(6) those who are not of unsound mind, but by reason of age, disease, weak
mind, and other similar causes, cannot without outside aid, take care of
themselves and manage their property, becoming thereby an easy prey for
deceit and exploitation.

Parents as guardians: When the property of the child under parental

authority is worth Php 2,000.00 or less, the father or the mother, without
the necessity of court appointment, shall be his legal guardian. When the
property of the child is worth more than Php 2,000.00, the father or the
mother shall be considered guardian of the child's property, with the duties
and obligations of guardians under these rules, and shall file the petition
required by the rules. For good reasons the court may, however, appoint
another suitable person.

Jurisdiction and Venue

Where to file petition for guardianship

Any relative, friend, or other person on behalf of a resident minor or
incompetent who has no parent or lawful guardian, or the minor
himself if fourteen years of age or over, may petition for the
 appointment of a general guardian for the person or estate, or both,
of such minor or incompetent.

Transfer of venue
If the ward transfers his bona fide residence, the court may transfer the
guardianship case to the court of the place of his residence wherein he has
acquired real property, and additional court fees are not required.

Petition For Guardianship

1. Who may file-

Any relative, friend or other person on behalf of a resident minor or
incompetent who has no parent or lawful guardian, or the minor
himself if fourteen years of age or over, may petition for the
appointment of a general guardian for the person or estate, or both,
of such minor or incompetent.
2. Contents of petition-
The petition shall allege:
(1) The jurisdictional facts;
(2) (2) The minority or incompetency;
(3) (3) The names, ages and residences of the relatives of
the minor or
(4) incompetent, and of the persons having him in their
care; (4) The probable value and character of his
estate; and (5) The names of the person for whom
letters of guardianship are prayed. 3. Notice of hearing
Reasonable notice of the hearing of the petition shall
be given to the persons mentioned in the petition
residing in the province, including the minor if above
14 years of age or the incompetent himself. The court
may direct other general or special notice to be given.

Grounds for opposition

The petition may be opposed on the grounds of
(a) majority of the alleged minor;
(b) competency of the alleged incompetent; or
(c) unsuitability of the proposed guardian.

Order At the hearing,:

the alleged incompetent must be present as much as possible. Evidence will
be heard and if it be proved that the person in question is a minor or
incompetent, the court shall appoint a suitable guardian of his person or
estate, or both.

Guardian for the estate of a nonresident

- On notice, by publication or otherwise, and after the hearing, a
guardian may be appointed for the estate in the Philippines of a
nonresident minor or incompetent.

Guardian's Bond-
- The guardian shall give a bond conditioned:
(a) to make a true and complete inventory within three months;
(b) to manage and dispose of the estate, and to provide for the proper
care, custody and education of the ward;
(c) to render a true and just account; and
(d) to perform all orders of the court.

New bond-
A new bond may be required and the old sureties discharged whenever it is
deemed necessary, after due notice to interested persons, when no injury
can result therefrom to those interested in the estate.

Bond to be filed; actions thereon

Every bond of a guardian shall be filed in the office of the clerk of the court.
In case of the breach of a condition thereof, it may be prosecuted in the
same proceeding or in a separate action.

General Powers and Duties:

 The guardian has the care and custody of the person of the ward
and/or the management of his estate.
 The guardian should pay the ward's just debts from his personal
property and income of his real estate; if insufficient, out of the sale
or encumbrance of real estate as authorized by the court.

The estate should be managed frugally.

1. A person suspected of embezzling or concealing property of the ward

may be asked to appear for examination.
2. After making an inventory after three (3) months, the guardian is
required to file an inventory and accounting annually.

Compensation and expenses –

The guardian is allowed reasonable expenses and such compensation as
the court deems just, not exceeding 15% of the net income of the ward.

Grounds for removal: A guardian may be removed when-

(a) he becomes insane,
(2) is otherwise incapable of discharging his trust,
(3) is unsuitable therefor,
(4) has wasted or mismanaged the estate, or
(5) has failed for thirty (30) days to render an account or make a return.

Advanced age:
The conclusion by the trial court that the guardian of advanced age is not
fit to continue, is not to be disturbed, particularly with his delay in making
an accounting and filing an inventory. While age alone is not a controlling
criterion, it may be a factor for consideration.

Sale or encumbrance:
1. Real property of the ward may be sold or encumbered by authority of the
court upon a verified petition when the income is not sufficient to maintain
the ward and his family or to educate him, or when it is for his benefit that
the property be sold, mortgaged or otherwise encumbered and the
proceeds put out at interest or invested in some productive security, or in
the improvement or security of other real estate of the ward.

2. Bond for the sale:

The original bond of the guardian shall answer for the proceeds of the sale,
but the court may require an additional bond. The order to sell is valid for
one (1) year.

3. A court order authorizing the sale of a ward's property, is subject to

appeal, not certiorari and mandamus.
Petition for termination of Guardianship
A person who has been declared incompetent for any reason, or his
guardian, relative, or friend, may file a verified petition to have his present
competency judicially determined. If it be found after hearing that the
person is no longer incompetent, his competency shall be adjudged and the
guardianship shall cease.

Grounds for removal:

A guardian may be removed when

(a) he becomes insane,

(b) is otherwise incapable of discharging his trust,
(c) is unsuitable therefor, (d) has wasted or mismanaged the estate, or
(e) has failed for thirty (30) days to render an account or make a return.

Other termination-
Marriage or voluntary emancipation of a minor ward terminates the
guardianship of the person of the ward, and shall enable the minor to
administer his property as though he were of age, but he cannot borrow
money or alienate or encumber real property without the consent of his
father or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian. Upon the application of the
ward or otherwise, the guardians may be discharged if the guardianship is
no longer necessary.

Advanced age
The conclusion by the trial court that the guardian of advanced age is not fit
to continue, is not to be disturbed, particularly with his delay in making an
accounting and filing an inventory. While age alone is not a controlling
criterion, it may be a factor for consideration.
Note: The guardianship court cannot adjudicate title.

III. ADOPTION
Governing Laws:

a) Republic Act No. 8552, which is "An Act Establishing the Rules
and Policies on the Domestic Adoption of Filipino Children." It was
approved on February 25, 1998. It took effect fifteen (15) days
after its complete publication in a newspaper of general circulation
in the Official Gazette.

b) On December 2, 1998, Rules and Regulations to Implement the

Domestic Adoption Act of 1998 were promulgated to govern the
adoption of Filipino children within the Philippines.

c) Foreign adoptions are governed by Republic Act No. 8043, which

is "An Act Establishing the Rules to Govern Inter-Country Adoption
of Filipino Children," approved on June 2, 1995.

d) Prior laws on adoption include provisions in the Child and Youth

Welfare Code (Presidential Decree No. 603), the Family Code, and
Executive Order No. 91.

e) The Family Code expressly repealed Articles 17-19, 27-31, 39-42

of the Civil Code and Articles 27-29, 31, 33 and 35 of Presidential
Decree No. 603.

f) The Civil Code provisions, however, were expressly repealed by

the provisions of P.D. No. 603, which took effect in 1975, or six
months after its approval on December 10, 1974.
 g) About six months before the Family Code was signed by
President Corazon C. Aquino as Executive Order No. 209 on July 6,
1987, she promulgated Executive Order No. 91 on December 23,
1986. It was published in the Official Gazette on January 12, 1987.
It should have taken effect fifteen (15) days thereafter or on
January 27, 1987.

h) Republic Act No. 8552 provides that any law, presidential decree
or issuance, executive order, letter of instruction, administrative
order, rule, or regulation contrary to, or inconsistent with its
provisions is repealed, modified or amended accordingly.

i) The provisions of Rules 99 and 100 in the Rules of Court should

thus be considered amended.

Who may adopt:

Those who may adopt are enumerated in Sec. 7 of Rep. Act No. 8552, viz:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any crime
involving moral turpitude, emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the adoptee, and who is
in a position to support and care for his/her children in keeping with the
means of the family.

Note: The requirement of sixteen (16) year difference between the age of
the adopter and adoptee may be waived when the adopter is the biological
parent of the adoptee, or is the spouse of the adoptee's parent.

(b) Any alien possessing the same qualifications as above stated for Filipino
nationals: Provided, That his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been living in the Philippines for
at least three (3) continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption decree is entered,
that he/she has been certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to adopt
in his/her country, and that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter: Provided, Further, That the
requirements on residency and certification of the alien's qualification to
adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her

Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse; or

(iv) the guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.

c) Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the

other; or

(ii) if one spouse seeks to adopt his/her own illegitimate

son/daughter: Provided, However, that the other spouse has signified
his/her consent thereto; or
 (iii) if the spouses are legally separated from each other. In case
husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the
spouses.

Jurisdictional Venue

A petition for adoption shall be filed in the Regional Trial Court of the place
in which the petitioner resides. Adoption now falls under the original and
exclusive jurisdiction of the Regional Trial Court.

Subjects of adoption: Who may be adopted are enumerated in Sec. 8 of

Rep. Act No. 8552. 4.

Note: Aliens are now allowed to adopt. For a time, under the Family Code
repealing the provisions in the Civil Code, aliens were not allowed to adopt.
Now they can already adopt provided the following requirements are met:

a) Those who possess the same qualifications as Filipino nationals upon

the following conditions:

i. That his/her country has diplomatic relations with the Republic

of the Philippines.

ii. That he/she has been living in the Philippines for at least three
(3) continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption
decree is entered.

iii. That he/she has been certified by his/her diplomatic or consular

office or any appropriate government agency that he/she has
the legal capacity to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her country as
his/her adopted son/daughter.

Note: the requirements of residency and certification of the alien's

qualification to adopt in his/her country may be waived by the following:

i. a former Filipino citizen who seeks to adopt a relative within

the fourth degree of consanguinity or affinity; or

ii. one who seeks to adopt the legitimate son/daughter of his/her

Filipino spouse; or

iii. one who is married to a Filipino citizen and seeks to adopt

jointly with his/her spouse a relative within the fourth
consanguinity or affinity of the Filipino spouse.

Joint Adoption: Husband and wife are required to adopt except

(a) if one spouse seeks to adopt the legitimate son/daughter of the other;

(b) if one spouse seeks to adopt his/her own illegitimate son/daughter,

provided that the other spouse has signified his/her consent thereto; and

(c) if the spouses are legally separated from each other.

Age Difference: The age difference should be 16 years between the

adopter and the adopted, provided that it may be waived when the adopter
is the biological parent of the adoptee or is the spouse of the adoptee's
parent.
Procedure
Contents of petition The petition should contain the same allegations in a
petition for guardianship, to wit:

(1) The jurisdictional facts; (2) The qualifications of the adopter; (3) That the
adopter is not disqualified by law; (4) The name, age, and residence of the
person to be adopted and of his relatives or of the persons who have him
under their care; (5) The probable value and character of the estate of the
person to be adopted.

Required consent: Under Sec. 9, Republic Act No. 8552, written consent
of the following is required:

(1) The adoptee, if ten (10) years of age or over.

(2) The biological parent(s) of the child, if known, or the legal guardian, or
the proper government instrumentality which has legal custody of the child.

(3) The legitimate and adopted sons/daughters, ten (10) years of age or
over, of the adopter(s) and adoptee, if any.

(4) The illegitimate sons/daughters, ten (10) years of age or over, of the
adopter if living with said adopter and the latter's spouse, if any.

(5) The spouse, if any, of the person adopting or to be adopted.

Order for hearing: If the petition and consent are sufficient in form and
substance, and a favorable case study has been made, as hereafter
mentioned, the court, by an order, shall fix the date and place of the
hearing which shall not be more than six (6) months after the issuance of
the order.

Publication of Order : The order shall direct that a copy thereof be

published before the hearing once a week for three (3) successive weeks in
a newspaper of general circulation in the province.

Case Study : No petition for adoption shall be set for hearing unless a
licensed social worker of the Department, the social service office of the
local government unit, or any child-placing or child-caring agency has made
a case study of the adoptee, his/her biological parent(s), as well as the
adopter(s), and has submitted the report and recommendations on the
matter to the court.

Birth registration: At the time of preparation of the adoptee's case study,

the social worker concerned shall confirm with the Civil Registry the real
identity and registered name of the adoptee. If the birth of the adoptee was
not registered with the Civil Registry, the social worker shall ensure that the
adoptee is registered.

Legally available: The case study shall establish that the adoptee is
legally available for adoption and that the documents to support this fact
are valid and authentic. Further, the case study of the adopter shall
ascertain his genuine intentions and that the adoption is in the best interest
of the child.

Intervention by DWSD : The DWSD shall intervene on behalf of the

adoptee if it finds, after the case study, that the petition should be denied.
The case studies and other relevant documents and records pertaining to
the adoptee and the adoption shall be preserved by the Department.
Supervised Trial Custody: No petition for adoption shall be finally
granted until the adopter/s has/have been given by the court a supervised
trial custody period for at least six (6) months within which the parties are
expected to adjust psychologically and emotionally to each other and
establish a bonding relationship. During said period, temporary parental
authority shall be vested in the adopter/s.

(a) The court may motu proprio or upon motion of any party reduce the trial
period if it finds the same to be in the best interest of the adoptee, stating
the reasons for the reduction of the period. However, for alien adopters,
they must complete the six (6)-month trial custody except for those
enumerated in Sec.7(b)(i)(ii)(iii).

(b) If the child is below seven (7) years of age and is placed with the
prospective adopter through a pre-adoption placement authority issued by
the Department, the prospective adopter shall enjoy all the benefits to
which biological parents are entitled from the date the adoptee is placed
with the prospective adopter.

Decree of adoption: If, after the publication of the order of hearing,

no opposition has been interposed, and after consideration of the case
studies, the qualifications of the adopter, the trial custody report, and the
evidence submitted, the court is convinced that the petitioners are qualified
to adopt, and that the adoption would redound to the best interest of the
adoptee, a decree of adoption shall be entered. The decree shall state the
name by which the child is to be known which shall be effective as of the
date the original petition was filed. Note: This provision shall also apply in
case the petitioner dies before the issuance of the decree of adoption to
protect the interest of the adoptee.

Civil Registry Record: An amended certificate of birth, without any

notation that it is an amended issue, shall be issued by the Civil Registry,
attesting to the fact that the adoptee is the child of the adopter by being
registered with his/her surname. The original certificate of birth shall be
stamped 'cancelled' with the annotation of the issuance of an amended
birth certificate in its place and shall be sealed in the civil registry records

Confidential Nature of Proceedings: All hearings in adoption

cases are confidential and shall not be open to the public. All records,
books, and papers relating to the adoption cases in the files of the court,
the DWSD, or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential. The court may authorize the
necessary information to be released, if it is for the best interest of the
adoptee and the disclosure is necessary, restricting the purposes for which
it may be used.

Service of judgment: The judgment shall be served by the clerk on

the civil registrar.

Rescission of Adoption
Grounds for rescission

Upon petition of the adoptee, with the assistance of the DSWD if a minor or
if over eighteen (18) years of age but is incapacitated, as guardian/counsel,
the adoption may be rescinded on any of the following grounds committed
by the adopter(s):

(a) repeated physical and verbal maltreatment by the adopter(s) despite

having undergone counselling;

(b) attempt on the life of the adoptee;

(c) sexual assault or violence; or

(d) abandonment and failure to comply with parental obligations.

Who may file

A minor or other incapacitated person may, through a guardian or guardian

ad litem, file the petition for rescission of adoption. Under Rep. Act No.
8552, Sec. 19, adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Time to file petition

The petition must be filed within five (5) years following attainment of
majority, or following recovery from incompetency.

Procedure

The court shall issue an order requiring the adverse party to answer the
petition within fifteen (15) days from receipt of a copy thereof. The order
and a copy of the petition shall be served on the adverse party in such
manner as the court may direct. After trial, if the court finds the allegations
of the petition to be true, the court shall render judgment ordering
rescission, with or without costs, as justice requires.

Service of judgment: A certified copy of the judgment shall be served

upon the civil registrar concerned. Within thirty (30) days from rendition of
the judgment, he shall enter the action in the civil register.

Inter-Country Adoption (Rep. Act No. 8043):

Adoption by aliens-

The Family Code had provided that adoption by aliens of Filipino children,
while generally prohibited by the Code, shall be authorized in inter-country
adoption as may be allowed by law.

A legally-free child
For a child to be placed under the coverage of the Inter-Country Adoption
Law, he must be legally-free which means that the child has been
voluntarily or involuntarily committed to the DSWD in accordance with P.D.
No. 603 and the necessary documents submitted to the ICAB.

Adopters
The qualifications for adopters are more stringent than the qualifications for
adopters in domestic adoption. For one, an adopter must at least be 27
years of age aside from the 16-year difference between the adopter and the
adopted.

Application

An application for inter-country adoption may be filed with the Regional

Trial Court having jurisdiction over the child or with the ICA Board, through
an intermediate agency in the country of the prospective or adoptive
parents.

Functions of the RTC

The Regional Trial Court appears merely to receive applications from foreign
adoption agencies, evaluate and assess the qualifications of the proposed
adopter, and pursuant to the implementing rules, the court must submit its
findings and the application papers to the ICAB. The supervised trial custody
is conducted and the decree of adoption is issued by the court in the place
of the adopter abroad.

Resident Aliens

Aliens who permanently reside in the Philippines are not qualified to

become adopters under the Inter-Country Adoption Act. However, under the
Domestic Adoption Act, they are qualified to adopt.

Art. 184, Family Code provides that an alien cannot adopt under Philippine
law except '(a) a former Filipino citizen who seeks to adopt a relative by
consanguinity; and (b) one who seeks to adopt the legitimate child of his or
her Filipino spouse.

 Where one of the spouses is an alien, the adoption cannot be allowed.

CUSTODY OF MINORS

Note:

A petition for the custody of minors is also provided in Section 1, Rule 99

which provides for a petition for adoption. The petition for custody of
children is now within the exclusive original jurisdiction of Family Courts, as
provided in Sec. 5(b), Family Courts Act of 1997, or Rep. Act No. 8369.

 Children Under Seven Years of Age Under Article 213, second

paragraph Family Code, no child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons
to order otherwise. Under Pres.Decreee 603, Art. 17, the age of the
child was five years of age, reduced from the Civil Code provision of
seven years of age. Now it is back to seven years of age under the
Family Code. 1. Formerly, under the Civil Code, the provision was that
no mother should be separated from her child under seven years of
age. The change emphasizes the fact that it is the welfare of the child
that is paramount.

This rule, however, is not absolute.

 Child Abuse Complaints on cases of unlawful acts committed against

children under the Child Abuse Act may be filed by

(a) the offended party, (b) parents or guardians, (c) ascendant or

collateral relative within the third degree of consanguinity; (d) officer,
(e) social worker or representative of a licensed child-caring
institution; (f) officer or social worker of the DSWD; (g) barangay
chairman, or (g) at least three (3) concerned responsible citizens
where the violation occurred.

 Protective Custody: The child shall be immediately placed under the

protective custody of the DSWD pursuant to Executive Order No. 56,
series of 1986.

 Custody proceedings shall be in accordance with the provisions of

Presidential Decree No. 603. 2. Special Court Proceedings Cases
involving violations of Rep. Act No. 8369 shall be heard in the
chambers of the Family Court Judge.

When parents are separated

The question as to the care, custody and control of a child or children of
parents who are divorced or separated, may be brought before a Regional
Trial Court by petition or as an incident to any other proceeding.

Award of custody: After hearing, the court shall award the care, custody
and control of each child as will be for its best interest.

Choice of the child

The child who is over ten (10) years of age, may choose which parent
he/she prefers to live with, unless the parent so chosen is unfit to take
charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty.

Other designations

If both parents are unfit, the court may designate other persons or an
institution to take charge of the child, such as the paternal or maternal
grandparent of the child, or his oldest brother or sister, or some reputable
and discreet person.

Support

The court may order either or both parents to support or help support the
child, irrespective of who may be its custodian. The fact that the father has
recognized the child may be a ground for ordering him to give support, but
not for giving him custody of the child.

Visitation or temporary custody

The court may permit the parent who is deprived of care and custody to
visit the child or have temporary custody thereof in an order that is just and
reasonable.

Appeal

Either parent may appeal from an order made in accordance with the
provisions of Section 6, Rule 99.

Remember: no child under seven years of age shall be separated from

its mother, unless the court finds that there are compelling reasons
therefor.

Special Provisional Remedies

In cases of violence among immediate family members living in the same

domicile or household, the law now has special provisional remedies.

 Restraining Order

Family Court may issue a restraining order against the accused or

defendant upon a verified application by the complainant or the
victim for relief from abuse.

 Temporary Custody

The court may also order the temporary custody of children in all civil
actions for their custody.

 Support Pendente Lite

The court may also order support pendente lite, including deduction
from the salary and use of conjugal home and other properties in all

 Foster Care Provisions on foster care are to be found in Articles 67 to

70, Presidential Decree No. 603. Foster care is to be preferred to
institutional care. No child below nine (9) years of age shall be placed
in an institution.

Dependent, Abandoned Or Neglected Children: These types of children are

defined in Presidential Decree No. 603, Art. 141.

A verified petition for their involuntary commitment may be filed.

 Involuntary commitment: For various provisions on the procedure for

involuntary commitment, such as the contents of the petition,
verification, order to set time for hearing, summons, when not
 necessary, representation of child, duty of fiscal, hearing,
commitment of child, when child may stay in his own home,
termination of rights of parents, authority of person, agency or
institution, change of custody, refer to Articles 142-153, Presidential
Decree 603.

 Voluntary commitment: Provisions on voluntary commitment which

should be in writing, legal custody, visitation, report, temporary
custody of children, prohibited acts, report of person or institution,
refer to Articles 154 to 159, Presidential Decree 603.

Various other provisions: Other significant provisions in

Presidential Decree No. 603 refer to:

 Art. 159. Temporary Custody of Child

 Art. 160. Prohibited Acts of Leaving an Institution

 Art. 161. Duty to Report Abandonment

 Art. 162. Adoption of Dependent or Abandoned or Neglected Child Art.

 163. Restoration of Child After Involuntary Commitment

 Art. 164. Restoration After Voluntary Commitment

 Art. 165. Removal of Custody

 Art. 166. Report of Maltreated or Abused Child

 Art. 167. Freedom from Liability of Reporting Person or Institution.

Special Children: A child who appears to be mentally retarded,

physically handicapped, emotionally disturbed, or mentally ill, and needs
institutional care but his parents or guardians are opposed thereto, a
petition for commitment of the child may be filed.

Provisions on venue, contents of petition, order of hearing, disposition

of property or money of the committed child, children with cerebral palsy,
discharge of a child judicially committed, discharge of child voluntarily
committed, report on conduct of child, and related provisions, refer to
Articles 178 to 204, P.D. 603.

HABEAS CORPUS

Definition and Nature:

Basically, it is a writ directed to the person detaining another, commanding

him to produce the body of the prisoner at a designated time and place,
with the day and cause of his capture and detention, to do, submit to, and
receive whatsoever the court or judge awarding the writ shall consider in
that behalf. The Latin term habeas corpus which literally means "you have
the body," is a high prerogative writ, of ancient common-law origin, the
great object of which is the liberalization of those who may be imprisoned
without sufficient cause.
Function and Scope of Writ

The writ of habeas corpus generally extends to all cases of illegal

confinement or detention by which a person is

(1) deprived of liberty, or

(2) the rightful custody of a person is withheld from the person entitled
thereto.

The writ of habeas corpus is no longer available to one who is already out
on bail.

Grounds for Relief

1. Deprivation of fundamental or constitutional rights. There is restraint of

liberty where one is deprived of freedom of action, such as the freedom of
locomotion.

2. Lack of jurisdiction of the court to impose the sentence. A person may be

detained on the basis of a void judicial order, such as there the court issuing
it had no jurisdiction of the crime charged, or of the place where the crime
was allegedly committed, or of the person of the accused or where the
court had no jurisdiction over the subject matter.

3. Excessive penalty. The writ of habeas corpus also issues when a bond
given by the accused entitled thereto is not admitted, or excessive bond is
required,or the penalty imposed by the court is not provided by law.

Power to Grant Writ; Enforceability The writ may be issued by the

Supreme Court or by the Court of Appeals or any member thereof,
enforceable anywhere in the Philippines, returnable to the same court or
any member thereof or to the RTC (CFI) or any judge thereof for hearing
and decision. 5. Requisites of application If the detention is by an officer,
the writ shall be directed to him, commanding him to bring the body of the
person restrained of liberty before the court at the time and place specified.
If the detention is by a person other than an officer, then the writ shall be
directed to an officer commanding him to the same effect and to summon
the person restraining. The respondent will be asked to explain the cause of
the detention.

Procedure (Issuance of writ and return)

If the writ if issued by an RTC judge, it is returnable only to himself and
enforceable only within his judicial district (now region)

Discharge of Person Detained

When the prisoner is unlawfully restrained, the court or judge shall order his
discharge which shall not be effective until a copy of the order is served on
the officer or person detaining the prisoner. If such officer or person does
not desire to appeal, the prisoner shall be forthwith released.

ESCHEATS
Meaning of Escheat: is the reversion of property to the State when the title
thereto fails from defect of an heir. It is the falling of a decedent's estate
into the general property of the State.

Procedure
  When filed : A petition to escheat property is filed when a person dies
intestate, leaving behind real or personal property but without an
heir.

 Who files petition: The petitioner is the Solicitor General or his

representative in behalf of the Republic of the Philippines.

 Where filed: The petition is filed in the Regional Trial Court where the
deceased last resided or in which he had property if he resided out of
the Philippines.

 Contents of petition The petition shall set forth the facts and pray that
the estate of the deceased be declared escheated.

 Order of Hearing: The court shall fix a date and place for the hearing
of the petition, which date shall not be more than six months after the
rendition of the order.

 Publication. The order shall also direct that a copy thereof shall be
published at least once a week for six (6) successive weeks in some
newspaper of general circulation in the province as the court deems
best.

 Judgment : After hearing, the court shall adjudge the properties

escheated after payment of just debts and charges, and the
properties shall be assigned pursuant to law as follows:

i. The personal estate shall be assigned to the municipality

or city where the deceased last resided in the Philippines.

ii. The real estate shall be assigned to the municipalities or

cities, respectively, in which the same is situated.

iii. If the deceased never resided in the Philippines, the

whole estate may be assigned to the respective
municipalities or cities where the same is located.

iv. Such estate shall be for the benefit of public schools, and
public charitable institutions and centers in said
municipalities or cities.

Permanent Trust

The court may order the establishment of a permanent trust so that only
the income from the property shall be used.

Claim Within Five Years

If a person entitled to the estate escheated appears and files a claim with
the court within five (5) years from the date of the judgment, he shall obtain
possession and title to the property. If it has already been sold, the
municipality or city shall be accountable to him for the proceeds, after
deducting expenses for the care of the estate, but a claim not made with
said time shall be forever barred.

Other actions for escheat

Actions for reversion or escheat of properties alienated in violation of the

Constitution or of any statute shall be governed also by Rule 91, except that
the action shall be instituted in the province where the land lies in whole or
in part.

CHANGE OF NAME
Name Defined.

A name is that word or combination of words by which a person is

distinguished from others and which he bears as a label or appellation for
the convenience of the world at large in addressing him or in speaking of or
dealing with him.

Minor - A minor may sign and verify his petition for a change of name
subject to the required assistance of a guardian ad litem, although the
absence of the latter does not void the proceeding because it is amendable.

Resident Aliens - Resident aliens may also petition for a change of name.
A nonresident alien may not avail himself of the same right; such a
proceeding would not be of much benefit to him. But the petition will not be
entertained if petitioner’s citizenship is either controverted or doubtful.

Procedure
 Venue: The petition shall be filed in the RTC (CFI) of the place of
residence of the person desiring to change his name.

 Petition: Petitioner should allege (1) that he is a bona fide resident of

the region (province) for at least three (3) years, (2) the cause for the
change of name, and (3) the name asked for.

 Hearing: The hearing is held after notice and publication. The

inclusion in the title of the petition for change of name and in the
published order of the name sought to be authorized, is jurisdictional.

Note: Joinder of causes of action: Petitions for adoption and change of

name cannot be joined. They are not the same in nature and character
nor do they present common questions of law and fact.

Resumption of use of maiden name after divorce. The resumption by

the wife of her maiden name after a Muslim divorce, is not change of name
under Rule 103. The proceeding filed to resume the use of the maiden
name is a superfluity but it is directory.

Causes for change of name:

A 47-year old resident of Tacloban City, named Haw Liong, wanted to

change his name to Alfonso Lantin, as he would soon be a Filipino. The
Supreme Court, however, held that there was no compelling reason for the
change of name. According to the Court, what may be considered, among
others, as proper and reasonable causes that may warrant the change are:
(1) when the name is ridiculous, tainted with dishonor, or is extremely
difficult to write or pronounce; (2) when the request for change is a
consequence of a change of status, such as when a natural child is
acknowledged or legitimated; and (3) when the change is necessary to
avoid confusion.

Other causes:

i. Erasing signs of former nationality.

ii. Resulting confusion.
iii. Improving personality or social standing On the other hand, a natural
child through her mother petitioned for a change of name to adopt
the surname of her stepfather.
Legitimate minor child

A legitimate minor child may not also be allowed to change his surname
from that of a father who was a fugitive from justice to that of his mother.
There will be confusion as to parentage as it might create the impression
that the minors were illegitimate since they would carry the maternal
surname only, which is inconsistent with their legitimate status in their birth
records.

ABSENTEES
 Provisional Representative. When a person disappears without leaving
an agent behind, an interested party, relative or friend, may file a
petition before the RTC (CFI) of the last place of residence of the
person who disappeared to appoint provisionally a representative for
him.

 Trustee or Administrator. After two (2) years without any news or

after five (5) years if an agent was left to administer his property, a
petition for declaration of absence and appointment of a trustee or
administrator may be filed.

Note: Notice and publication is required.

The court may appoint as trustee or administrator or provisional

representative

(1) the spouse of the missing person if they are not legally separated or if
the spouse is not a minor or otherwise incompetent; or, in default of the
spouse,

(2) any competent person. 5. Termination The appointment shall be

terminated (1) if the absentee appears personally or by agent; (2) when
death is proved and the heirs appear; or

(3) when a third person acquires the property of the absentee.

A wife filed a petition to declare her missing husband absent and

presumed dead. But he left no property. HELD: There is no need for
the petition. A declaration of presumption of death can never be final.

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY
 Petitioner. The petitioner may be any interested person concerning
the civil status of persons.

 Venue. The petition may be filed with the RTC (CFI) where the
corresponding civil registry is located.

 Parties. The civil registrar and all persons affected shall be made
parties to the proceeding.
  Notice and publication are required before the hearing.

 The remedy for the correction of the civil status of a person is in Rule
108 which is not a summary but an adversary proceeding.

Note: Sec. 3, Rule 108, requires all interested persons who may be
affected by the petition to be made parties.

SUMMARY PROCEEDINGS UNDER THE FAMILY CODE

Summary Proceedings under the Family Code. The cases shall be

heard by the proper court authorized to hear family cases, if one exists, or
in the regional trial court or its equivalent, sitting in the place where either
of the parties or spouses resides.
Such cases shall be decided in an expeditious manner without regard
to technical rules. 3. Coverage Summary procedure may be used in cases
provided in Articles 239, 248, 223, 225, 235, 41, 51, 69, 73, 96, 124, 217,
Family Code, viz:

a. A verified petition may be filed to seek judicial

authorization for a transaction where the consent of an
estranged spouse is needed. Claims for damages by
either spouse, except costs, may be litigated only in a
separate action.
b. The petition for judicial authority to administer or
encumber specific separate property of the abandoning
spouse and to use the fruits or proceeds thereof for
support of the family.
c. Petitions filed under Articles 223, 225 and 236 of the
Family Code involving parental authority which shall be
verified, to be filed in the proper court of the place where
the child resides. The court shall notify the parents or, in
their absence or incapacity, the individuals, entities or
institutions exercising parental authority over the child.
d. Summary proceedings filed under Articles 41, 51, 69, 96,
124 and 217, insofar as they are applicable.

Procedure.

The summary procedure is set forth in certain provisions of the Family Code
(Arts. 239-247, 250-252, FC) as follows:

 A verified petition. A verified petition setting forth the alleged facts

and attaching the proposed deed of the transaction involved.
 Notice to interested persons. Notice shall be given to all interested
persons upon the filing of the petition.
 Preliminary conference. The preliminary conference shall be
conducted by the judge personally without the parties being assisted
by counsel. After the initial conference, if the court deems it useful,
the parties may be assisted by counsel at the succeeding conferences
and hearings.

Requiring appearance In case of non-appearance of the other party, the

court shall inquire into the reasons why and shall require such appearance,
if possible.

Ex-parte proceeding If attendance is not secured, then the court may

proceed ex parte and render judgment as the facts and circumstances
warrant, but the court shall endeavor to protect the interests of the
nonappearing party.
  Summary hearing. The case shall be heard on the basis of affidavits,
documentary evidence or oral testimonies at the sound discretion of
the court.
 Testimony If testimony is needed, the court shall specify the
witnesses to be heard and the subject matter of their testimonies,
directing the parties to present said witnesses. 4.8 Judgment The
judgment of the court shall be immediately executory.

TRUSTEES
 a trustee may be appointed to carry into effect the provisions of a will
or written instrument . The appointment will be made if the testator
omitted in his will A nonresident alien may not avail himself of the
same right; such as to appoint a trustee in the Philippines, and if the
appointment is necessary to proceeding would not be of much benefit
to him.

Venue : The petition may be filed in the RTC (CFI) in which the will is
allowed if allowed here; if not, by the RTC (CFI) in the region in which the
property or part thereof affected by the trust is situated. 255

Notice: No publication is required but the appointment is after notice to

all persons interested.

Bond. inventory and sale of trust estate Similar to executors and

administrators, the trustee also files a bond except when the court
exempts him. He also files an inventory. He may sell or encumber trust
property with court approval

PROCEEDINGS FOR THE HOSPITALIZATION

OF INSANE PERSONS

Venue. The petition should be filed in the RTC (CFI) of the place where the
person alleged to be insane is found.

 The petition is to be filed by the Director of Health when, in his

opinion, the commitment to a hospital or other place for the insane is
for the public welfare, or the welfare of the alleged insane who in his
judgment is truly insane and such person or the one in charge of him
is opposed to the commitment.

 The court shall provide for the custody of the property or money of
the insane until a
guardian is appointed.
  The Director of Health shall file a petition for discharge if the person
committed is temporarily or permanently cured, or may be released
without danger.

 The Provincial or City Fiscal (Prosecutor) represents the Director of

Health in court.

OTHER SPECIAL PROCEEDINGS

1. Voluntary Dissolution of Corporations

This Rule is no longer relevant. The voluntary dissolution of corporations

has been governed by Presidential Decree No. 902-A and the provisions of
the Corporation Code, particularly Secs. 117 to 122 thereof.

2. Proceedings have been before the Securities and Exchange Commission,

but under Rep. Act No. 8799, which is the new Securities Regulation Code,
approved July 19, 2000, its quasi-judicial cases have been transferred back
to the regular courts. Sec. 5.2 of Rep. Act No. 8799 provides: The
Commission's jurisdiction over all cases enumerated under Section 5 of
Presidential Decree No. 902-A is hereby transferred to the Courts of general
jurisdiction or the appropriate Regional Trial Court: Provided, That the
Supreme Court in the exercise of its authority may designate the Regional
Trial Court branches that shall exercise jurisdiction over these cases. The
Commission shall retain jurisdiction over pending cases involving intra-
corporate disputes submitted for final resolution which should be resolved
within one (1) year from the enactment of this Code. The Commission shall
retain jurisdiction over pending suspension of payments/ rehabilitation
cases filed as of 30 June 2000 until finally disposed. 3. Section 5 of
Presidential Decree No. 902-A, mentioned in Sec. 5.2 of Rep. Act No. 8799
above-quoted, enumerates the following cases: (a) Devices or schemes
employed by or any acts, of the board of directors, business associates, its
officers or partners, amounting to fraud and misrepresentation which may
be detrimental to the interest of the public and/or of the stockholder,
partners, members of associations or organizations registered with the
Commission. (b) Controversies arising out of intra-corporate or partnership
relations, between and among stockholders, members, or associates;
between any or all of them and the corporation, partnership or association
of which they are stockholders, members or associates, respectively; and
between such corporation, partnership or association and the state insofar
as it concerns their individual franchise or right to exist as such entity; (c)
Controversies in the election or appointments of directors, trustees, officers
or managers of such corporations, partnerships or associations; and (d)
Petitions of corporations, partnerships or associations to be declared in the
state of suspension of payments in cases where the corporation,
partnership, or association possesses sufficient property to cover all its
debts but foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation, partnership or
association has no sufficient assets to cover its liabilities, but is under
management of a Rehabilitation Receiver or Management Committee
created pursuant to this Decree. (as added by P.D. No. 1758.) 4. Decisions
of the courts in the foregoing cases are appealable to the Court of Appeals,
as provided by Section 70 of Rep. Act No. 8799, which is an affirmation of
Rule 43, 1997 Rules of Civil Procedure. 5. Effective December 15, 2000, the
Interim Rules of Procedure on Corporate Rehabilitation took effect on
December 15, 2000. (A.M. No. 008-10-SC, promulgated on November 21,
2000)

2. Judicial Approval of Voluntary Recognition of Minor Natural Children

  There is no longer any provision in the Family Code for acknowledged
natural children. Children are either legitimate or illegitimate.

 What is to be proved is filiation, and voluntary recognition could be

the means of proving filiation if the putative father or mother would
later refuse to continue the child.

 Relevant provisions of law are in Articles 172, 173 and 175 of the
Family Code.

 In the case of illegitimate children, the action also survives the death
of either or both of the parties except when the action is based on the
second paragraph of Article 172, referring to an action based on the
open and continuous possession of the status of a legitimate child and
any other means allowed by the Rules of Court, in which case the
action may be brought only during the lifetime of the alleged parent.

 The action under Rule 105 may be converted to an action for

paternity and filiation.

Venue The petition should be filed in the RTC (CFI) where the
child resides. 5.2 Contents of petition Aside from the jurisdictional facts,
the petition shall contain: 5.2.1 the names and residences of the parents
or one of them who acknowledged, their compulsory heirs and the
person or persons with whom the child lives; and the document
containing the recognition, a copy of which should be attached to the
petition, which document is either a statement before a court of record
or an authentic writing.

A hearing is held after notice and publication. The court grants the
petition when it is satisfied that the recognition was willingly and
voluntarily made and is for the best interest of the child.

3. Constitution of the Family Home

 Rule 106 on the Constitution of the Family Home is already irrelevant

in view of the Family Code.

 Under the Family Code, the family home is automatically constituted.

Article 153 of the Family Code provides: 'The family home is deemed
constituted on a house and lot from the time it is occupied as a family
residence.'

 The constitution of the family home, however, is not retroactive.

 The family home must be deemed constituted on both the house and
lot such that if the occupants of the family residence do not own the
lot on which it stands, there is no family home exempt from
execution.

APPEALS IN SPECIAL PROCEEDINGS

1. Appealability. An order or judgment which is appealable in special
proceedings is an order or judgment which 1. Allows or disallows a will;
2. Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to
a claim against it;

4. Settles the account of an executor, administrator, trustee, or guardian;

5. Constitutes, in proceedings relating to the settlement of the estate of a

deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator; and 6. Is the final order or judgment rendered in the case,
and affects the substantial rights of the person appealing, unless it be an
order granting or denying a motion for new trial or for reconsideration.

2. Who May Appeal Any interested person may appeal. A stranger having
neither material nor direct interest in a testate or intestate estate has no
right to appeal from any order issued therein. Those who have been allowed
to appeal are:

1. A surety of an executor or administrator, made a party to an accounting

made by such executor or administrator, from an order approving or
disapproving such accounting.

2. An heir, legatee or devisee who has been served with notice as to a

money claim against the estate admitted by the executor or administrator,
from an order of the court approving such claim; 3. A creditor who is
allowed by the court to bring an action for recovery of property; 4. A special
administrator, from an order disallowing a will.

Perfection of Appeal

i. Rules 41 (Appeal from the Regional Trial Courts),

ii. 42 (Petition for Review from the Regional Trial Courts to the Court of
Appeals) and Rule 45 (Appeal by Certiorari to the Supreme Court),
iii. all of the 1997 Rules of Civil Procedure) apply in conformity with Rule
72, section 2, which refers to the applicability of the rules of civil
actions to special proceedings and which provides that in the absence
of special provisions, the rules provided for in ordinary actions shall
be, as far as practicable, applicable in special proceedings.

Appeals in special proceedings are termed "multiple appeals" under the

Interim Rules of Court
and under the 1997 Rules of Civil Procedure. For multiple appeals, a record
on appeal is required, while the period of appeal is thirty (30) days, instead
of fifteen (15) days.

Advance Distribution

1. A part of the estate as may not be affected by the controversy or appeal,

may be distributed among the heirs or legatees, upon compliance with the
conditions set forth in Rule 90.
2. A partial distribution should as much as possible be discouraged by the
courts, and unless in extreme cases, such form of advances should not be
countenanced.
3.. The reason for this strict rule is obvious courts should guard with utmost
zeal and jealousy the estate of the decedent to the end that the creditors
thereof be adequately protected and all the rightful heirs assured of their
shares in the inheritance.