Lecture On Special Proceedings & Special Civil-1222317346.pdf

STRATEGIC LECTURE ON SPECIAL PROCEEDINGS & SPECIAL CIVIL ACTION FOR THE 2016 BAR EXAMINATION

JUDGE GENER M. GITO, LL.M., D.C.L.

SPECIAL PROCEEDINGS

What is the difference between an action or special proceedings? ACTION

SPECIAL PROCEEDINGS

It is a formal demand of one’s right in a court of justice in the manner prescribed by the court or by law. It is a method of applying legal remedies according to definite established rules

It may be defined as an application or proceeding to establish the status or right of a party, or a particular fact.

May a Regional Trial Court, acting as a court of general jurisdiction in an action for reconveyance and annulment of title with damages, adjudicate matters relating to the settlement of the estate of a deceased person particularly on questions as to advancement of property made by the decedent to any of the heirs?

Natcher vs. Court of Appeals October 2, 2001

• Kris and James were registered owners of a parcel of land with an area of 9,322 square meters and covered by TCT No. 11889. Upon the death of Kris, James, together with his six children, namely: Noynoy, Balsy, Cory, Macoy, Jojo and Mar, entered into an extrajudicial settlement of Kris’ estate adjudicating and dividing among themselves the real property subject of TCT No. 11889. Under the agreement, James received 8/14 share while each of the six children received 1/14 share of the said property. Accordingly, TCT No. 11889 was cancelled, and in lieu thereof, TCT No. 35980 was issued in the name of James and the Six children

Natcher vs. Court of Appeals October 2, 2001

• Said heirs executed an "Agreement of Consolidation-Subdivision of Real Property with Waiver of Rights" where they subdivided among themselves the parcel of land covered by TCT No. 35980 into several lots. James then donated to his children, share and share alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square meters registered under James’ name, as covered by TCT No. 35988. Subsequently, the land subject of TCT No. 35988 was further subdivided into two separate lots where the first lot with a land area of 80.90 square meter was registered under TCT No. 107442 and the second lot with a land area of 396.70 square meters was registered under TCT No. 107443. Eventually, James sold the first lot to a third person but retained ownership over the second lot.

Natcher vs. Court of Appeals October 2, 2001

• James married Natcher. During their marriage, James sold the land covered by TCT No. 107443 to his wife Patricia as a result of which TCT No. 186059 was issued in the latter's name. James died leaving his second wife Nachter and his six children by his first marriage, as heirs. • The heirs filed an action for reconveyance assailing the sale made by James to Natcher. They claim that their inheritance right was impaired on account of the sale.

Natcher vs. Court of Appeals October 2, 2001

• RTC ruled among others: • “Although the deed of sale cannot be regarded as such or as a donation, it may however be regarded as an extension of advance inheritance of Natcher being a compulsory heir of the deceased."

Natcher vs. Court of Appeals October 2, 2001

• An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.

Natcher vs. Court of Appeals October 2, 2001

• Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction. • Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

Settlement of Estate of Deceased Persons (RULE 73 TO 90)

Where Settle of Estate of Deceased Filed? (Section 1, Rule 73) If decedent is resident of the Philippine at the time of death

If decedent is not a resident of the Philippines at the time of death

RTC of the province in which he resides

RTC of the province in which he has estate or any part thereof

Effect of RA 7691 The First Level Courts have jurisdiction over probate proceedings, testate or intestate depending on the value of the estate: P200,000 if within Metro Manila P100,000 if outside Metro Manila

How may the estate of deceased settled? Extra-judicial settlement of estate

Summary settlement of estate

Judicial settlement

He left no will

Thru letters administration

He left no debts

Thru letters testamentary

Heirs are all of age or minors represented by guardian

SelfAdjudication

Testate vs. Intestate Testate when there is a will

Intestate when there is no will

BUT:

Testate takes precedence over intestate proceedings

Jurisdiction of the probate or intestate court is limited • Jurisdiction only relates to the matters having to do with the settlement of the estate and the probate of the will of deceased person and the appointment and removal of administrators, executors, guardians and trustees but does not extend to determination of ownership that arise during the proceedings.

Uy, et.al., vs. Judge Capulong (221 SCRA 87) • When questions arise as to ownership of the property alleged to be part of the estate of the deceased person, not by virtue of any right of inheritance from the deceased, such questions cannot be determined in the courts of administration proceedings. The trial court, acting as probate court has no jurisdiction to adjudicate such contentions which must be submitted to court of general jurisdiction.

Illustration • One of the properties inventoried as part of the estate of the deceased person is being claimed by Roberto. Roberto intervened in the intestate court in order to recover from the estate of the deceased said property. • Does the intestate have the power to entertain the intervention filed by Roberto? • NO.

May a probate or intestate court determine heirship?

Litam vs. Espiritu, 100 Phil. 364

Yes. A judicial determination that a certain person is an heir of the decedent is exclusively within the range of the administration proceedings and cannot properly be made as an independent action

Illustration • Juana filed a complaint for annulment of sale and partition against the heirs of Roberto. Juana claimed she is an adopted child of Roberto. Juana contended that it would be entirely impossible for Roberto to execute the deed of sale in favor of the heirs as he was already dead at the time of the execution of the deed of sale. • Juana was successful. She was able to prove that she had the right to institute the action as she was an adopted daughter of Roberto. The judgment became final.

Illustration • Later on, Juana filed an action to amend the Title of the property of Roberto which was already in the name of the other heirs of Roberto. Juana claimed that she should be included also as one of the heirs. Juana used as basis the judgment declaring her as duly adopted daughter of Roberto. • Is the action proper?

Bayagas vs. Bayagas September 18, 2013

• No. The trial cannot make a declaration of heirship in an ordinary civil action, for matters relating to the right of filiation and heirship must be ventilated in a special proceeding instituted precisely for the purpose of determining such rights.

Summary Settlement of Estate (Rule 74) Methods of summarily settling the estate of deceased person

Extra-judicial settlement of estate

Self adjudication

Agreement in an action for partition

Settlement of small value estate

Extra-Judicial Settlement of Estate

Requisites: Decedent left no will and no debts Heirs are all of age or minors are represented by guardians

How effected? Extra-Judicial Settlement

Self-Adjudication

Execution of public instrument

By execution of affidavit of selfadjudication

Registration of public instrument with the Register of Deeds

By filing of said affidavit with the Register of Deeds

Posting of bond equivalent to the amount of personal property

Posting of bond equivalent to the amount of personal property

Publication of the Deed

Publication of the affidavit

Agreement in an action for partition

Requisites: Decedent left no will and no debts Heirs are all of age or minors are represented by guardians

How Effected? • There must be an action for partition filed by any or all of the heirs. In the said action, the parties entered into a compromise agreement to have the estate of the deceased settlement. This compromise agreement will have to be approved by the Court where the action for partition is pending.

Settlement of Small Value Estate

Requisite: The estate does not exceed P10,000 whether testate or intestate

Summary: Settlement shall proceed without the appointment of an executor or administrator

Granting of allowance of the will

Determine who are legally entitled to participate

Division of estate

Suppose an extra-judicial settlement of estate was executed by the three (3) children of the deceased. The heirs complied with all the requisites of the Rules. After 3 years from the settlement and distribution of estate, a person claiming to be an heir surfaced. Can this person still claim from the estate of the deceased?

Section 4, Rule 74 • If it shall appear at any time within two (2) years the settlement and distribution of an estate in accordance with the provisions of either of Sections 1 and 2, Rule 74, that an heir or any other person has unduly been deprived of his lawful participation or it shall then appear that debts are outstanding against the estate and which have not been paid…..

Please take note: • Section 4, Rule 4 is only applicable to persons who have participated or taken part or had notice of extra-judicial partition • There is nothing in Section 4, Rule 74 which clearly shows a statute of limitation and a bar against third person. • It is not a bar of action against third person.

Marquez vs. Court of Appeals (300 SCRA 653)

An action to annul extra-judicial settlement of estate by way of reconveyance is 10 years from the discovery of fraud based on Article 1144 of the Civil Code. Registration of property is considered constructive notice.

Probate of the Will (Rules 75 to 77) Why is probate of the will necessary?

Section 1, Rule 75

“Because no will shall pass either real or personal estate unless it is proved and allowed in the proper court.”

What is the purpose of the probate of the will? • To determine the extrinsic validity of the will. The extrinsic validity of the will is determined by its compliance with the requirements of the Civil Code for the validity of the will and on the determination of whether the testator is of sound mind when he executed the same.

May a probate court pass upon the intrinsic validity of the will? • If the intrinsic defect is apparent from the will, say for instance absolute preterition, then the probate may pass upon the intrinsic validity of the will. (Nepomuceno vs. CA; Nuguid vs Nuguid; Cayetano vs. Leonides)

Person who may file for petition for allowance of the will • • • •

Executor Devisee Legatee Or any other person interested in the estate

Procedural Flow

Filing of Petition

Issuance of an Order setting the case for hearing

Publication of the Order for three (3) consecutive times in the news paper of general circulation in the province

Heirs, devisee, legatees and executors shall be notified

How will is proved? If not contested

Notarial will

It may be proved by one subscribing witness

Holographic will It may be proved by one witness who knows the handwriting and signature of the testator or expert witness

How will is proved? If contested

Notarial will All subscribing witnesses and notary public must testify

Section 11, Rule 76

But if the subscribing witnesses testify against it, the will may still be allowed on the basis of the testimony of other witnesses

How will is proved? If contested

Holographic will 3 witnesses who know that handwriting and signature

Section 11, Rule 76

In the absence of competent witnesses, expert witness

How will is proved? If the testator himself filed

Holographic will The fact that the testator affirms the will and his signature

Section 12, Rule 76

If opposed, the burden is on the oppositor

How is a lost or destroyed will proved? • By proving its execution and validity • Will is shown to have been in existence at the time of the death of the testator • It was fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge. • The provision of the will must be proved by two credible witnesses.

Allowance of the will proved outside the Philippines What must be proved:

The due execution of the will in accordance with foreign law

The testator is a resident of the foreign country

The will has been admitted to probate

It was allowed by a probate court

The laws of a foreign country on procedure and allowance of will

Executor and Administrator • Who may not administrator?

be

an

executor

§ One who is a minor § One who is not a resident of the Philippines § Unfit to execute the duties of the trust • • • •

Drunkenness Improvidence Want of understanding or integrity Conviction of crime involving moral turpitude

or

Order of Preference in the Appointment of Administrator • Surviving husband or wife or next of kin, or both in the discretion of the court or such person as the surviving husband or wife or next of kin requests to have appointed • If default of the first group, one or more competent creditors • In default the first and second group, any person as may be appointed by the Court

When may a special administrator be appointed? • When 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 court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

Claims against the Estate (Rule 86) • Section 1. Notice to creditors to be issued by court. — Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court.

Claims against the Estate (Rule 86) • Section 2. Time within which claims shall be filed. — In the notice provided in the preceding section, the court shall estate the time for the filing of claims against the estate, which shall not be more than twelve (12) not less than six (6) months after the date of the first publication of the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month.

Please take note: • Section 2, Rule 86 is what we call:

• STATUTES OF NON-CLAIMS

Problem 1 After an administrator was appointed by the Court, the Court where the settlement of estate was pending, issued an order requiring all claimants to the estate of the deceased to file their claims within seven (7) months from the date of the first publication of said Order. Creditor A was not able to file his claim within said period. Would it still be possible for Creditor A to file his claim?

ANSWER • Section 2, Rule 86 • Yes. Under Section 2, Rule 86, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month.

What are the claims that must be filed? • Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expense for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants.

What are the claims that must be filed? All money claims arising from contract express or implied All claims for funeral expenses Expense for last sickness of the decedent Judgement for money against the decedent

Problem 2 • The administrator of the estate of Don Mariano filed a collection suit against Lito. During his lifetime however, Don Mariano was indebted to Lito. Unfortunately, Lito was not able to file his claim within the time set by the Court. Would it be possible for Lito to still claim his credit from the estate of Don Mariano?

Answer • Yes, it is still possible for Lito to claim his credit from the estate of Don Mariano. Under Section 5, Rule 86, the claim of the creditor may be set up a counterclaim instead of filing it as an independent claim in the settlement of estate court.

Section 5 Rule 86 must be related to Section 20, Rule 3 • Section 20. Action and contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favourable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Problem 3 • D during his lifetime contracted a loan with PNB. D was not able to pay the loan. PNB filed a collection suit against D. While the case was pending, D died. • Will the collection suit filed by PNB be dismissed on account of the death of D? • Should there be a final judgment already, may this judgment be executed?

Answer 1 • No. Under Section 20, Rule 3, when the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favourable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Answer 2 • The judgment may not be executed. Under Section 5, Rule 86, a favourable judgment obtained by the plaintiff shall be enforced in the settlement of estate of the decedent.

• Rule 86, Section 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other colateral security, may 1. abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or 2. he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section or 3. he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made.

3 remedies available to enforce mortgage against the decedent To waive the mortgage and claim the entire debt from the estate of the mortgagor To foreclose the mortgage judicially and prove the deficiency as an ordinary claim against the estate To rely on the mortgage exclusively, or other security and foreclose the same at anytime. Here no claim for deficiency is allowed.

Illustration • The decedent, during his lifetime, obtained a loan from the bank. The loan is secured by a real estate mortgage. Roberto, one of the heirs, was appointed as the administrator of the estate of the decedent. The settlement court issued notice for all the claimants to file their claims. No one filed a claim, including the bank. The heirs of Roberto agreed to a partition without first paying the bank.

Illustration • Later, the bank foreclosed the real estate mortgaged, sold the property in a public auction which declared the bank as the highest bidder. However, there was deficiency. Thus, the bank filed against the estate in the settlement court. • Should the claim be entertained?

Heirs of Maglasang vs. Metrobank (September 23, 2013)

No. because having foreclosed the mortgage, it relied on the security and waived the right to claim the deficiency.

• Rule 86, Section 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other colateral security, may 1. abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or 2. he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section or 3. he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made.

Actions which may be brought by or against executors or administrator Section 1, Rule 87:

Actions to recover real or personal property or interest therein

Actions to recover damages for an injury to persons or property, whether real or personal

Section 1, Rule 87 must be related to Section 16, Rule 3 • Section 16, Rule 3

• Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action. • The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

Problem 4 • While D was driving his car, he hit C, a pedestrian causing the latter’s permanent disability. C filed a case for damages against D. While the case is pending, D died. • Will the case be dismissed? • Supposing there is already a final judgment, how would you execute the judgment?

Answer 1 • The case will not be dismissed on account of the death of D. This is an action which survives as it is an action to recover damages for an injury to person which may be brought against the executor or administrator under Section 1, Rule 87. Instead of being dismissed, the deceased party will be substituted by the heirs of the decedent if executor or administrator had not yet been appointed.

Answer 2 • The judgment may be executed through execution of the same against the estate of D. It is not necessary to have such claim be filed in the estate proceedings of the deceased because it is something which may be enforced against the estate through executor or administrator.

May the heirs bring suit for or in behalf of the estate? Borromeo vs. Borromeo doctrine:

If the executor or administrator refuses to bring suit

When the executor or administrator is alleged to have participated in the act complained of

May a creditor bring action in the name of the executor or administrator? • There is deficiency of assets in the hands of the hand of the executor or administrator for the payment of debts • The deceased during his lifetime had made to make a fraudulent conveyance of his real or personal property • The subject of the conveyance would be liable to attachmentby anyone of the, during his lifetime • Executor or administrator has no intention to file • Motion for leave is granted • Bond is filed by the creditor • Action must be in the name of the executor or administrator (Section 10, Rule 87)

When may distribution and partition be made? (Section1 Rule 90) When the debts, funeral expenses, expenses of administration, the allowance of the widow and inheritance tax have been paid.

Can there be distribution without payment of the charges and claims against the estate (Section1 Rule 90)

Yes, when the distributees or any of them gives a bond conditioned upon payment of said obligation

Section 1, Rule 90 •

Section 1. When order for distribution of reside made. — When the

debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of

a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who

are the lawful heirs of the deceased person or as the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

When is a settlement of estate deemed terminated? • It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and relieves the administrator of his duty. • PCIB vs Escolin, March 29, 1974

Anticipated Bar Problem • With approval of the project of partition and the distribution of the residue of the estate to the heirs, the court declared the settlement of estate closed and terminated. One of the heirs surfaced. Obviously, he was not included in the project of partition. • What is the remedy of such heir? • May such heir file an independent action to annul such order of partition?

Answer 1 • Such heir may file a motion for the re-opening of intestate proceedings. In Quion vs. Claridad, 74 Phil. 100, it was held that the intestate proceedings although closed and terminated can still be re-opened within the prescriptive period upon petition therefore of the preterited heir.

Alternative Answer • Such heir has lost his remedy. In Divinagracia vs. Rovina, 72 SCRA 307, The SC ruled that the probate court erred in reopening the intestate proceeding, a proceeding in rem of which the petitioner is deemed to have a constructive notice. The order of closing it was already final and executory. The closure order cannot be disturbed anymore.

Answer 2 • No. An independent action will not prosper. In Solivio vs. CA, 182 SCRA 119, the SC ruled that the filing of a separate action is improper. To allow such is to interfere with the probate proceedings with the court of equal jurisdiction.

Instances when the probate court may issue writ of execution • To satisfy the contributive shares of the devisees, legatees and heirs in possession of the decedent assets (Sec. 6, Rule 88) • To enforce payment of expenses of partition (Sec. 3, Rule 90) • To satisfy the cost when a person is cited for examination (Sec. 13, Rule 142)

ESCHEATS Rule 91

Section 1, Rule 91 • Section 1. When an by whom petition filed. — When a person dies intestate, seized of real property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated.

RCBC vs. Hi-Tri Development Corp (June 13, 2012) • Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto.[15] In the case of dormant accounts, the state inquires into the status, custody, and ownership of the unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor.[16]

RCBC vs. Hi-Tri Development Corp (June 13, 2012) • If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the state “to forestall an open invitation to self-service by the first comers.” However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or deposit should pass to the claimants or be forfeited in favor of the state. We emphasize that escheat is not a proceeding to penalize depositors for failing to deposit to or withdraw from their accounts.

RCBC vs. Hi-Tri Development Corp (June 13, 2012) • It is a proceeding whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have been abandoned, forgotten, or without an owner.

GUARDIANSHIP

Please take note: 2 procedure for guardianship proceedings:

Guardianship of minor (below 18 years of age)

A.M. No. 03-02-05-SC: Rule on Guardianship of Minor

Guardianship of incompetents

Rule 92-97

Rule on Guardianship of Minor “The father or the mother shall jointly exercise legal guardianship over the person and the property of their unemancipated common child without the necessity of court appointment”

Article 225 of the Family Code • Father and mother shall jointly exercise legal guardianship over the person and property of the unemancipated common child without court appointment • Where the market value of property exceeds Php50,000, parent shall be required to post a bond equivalent to not less that 10% of the value of the property. • A petition shall be filed for that purpose.

Where petition should be filed? • Family court or the province or city where the minor resides • If he resides in the a foreign country, the petition shall be filed in the family court of the province or city where the minor has property or any part thereof is situated.

Grounds for Petition • Death, continued absence, or incapacity of the parents of the minor • Suspension, deprivation or termination of parental authority • Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority • Best interest of the minor so requires

Who may be appointed as guardian? (in the order of preference) • Surviving grandparent and in case of several grandparent, the court shall select any of them taking into account all relevant considerations • The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified • Actual custodian of the minor over 21 years of age, unless fit and disqualified • Any person who serve the best interest of the minor

Guardianship of Incompetent Incompetent

- includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being 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.

Where to file? • Regional Trial Court of the province where the incompetent resides • Regional Trial Court of the province where the incompetent has property or any part thereof is situated

Adoption

Venue

Family Court of the province or city where the prospective adoptive parents reside

Venue for Revocation of Adoption • The petition shall be filed with the Family Court of city or province where the adoptee resides • Section 20, Rule on Adoption

Who may adopt? • 1) Any Filipino citizen of legal age, in possession of full capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is 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 children in keeping with the means of the family. The requirement of 16-year difference between the age of the adopter and the adoptee may be waived when the adopter is biological parent of the adoptee or is the spouse of the adoptee’s parent;

Who may adopt? • (2) Any alien possesing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Rpublic of the Philippines, that has been living in the Philippines for at least three (3) continuous years prior to the filling of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by the diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child.

The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

• (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consiguinity or affinity; or • (ii) on who seels tp adopt the legitimate child of his Filipino spouse; or • (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) decree of consiguinity or affinity of Filipino spouse.

Who may adopt? • 3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

Husband and wife should jointly adopt • Except: • (1) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or • (2) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or • (3) if the spouse are legally separated from each other.

Who may be adopted? • (1) Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption. • (2) The legitimate child of one spouse, by the other spouse; • (3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;

Who may be adopted? • (4) A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; • (5) A child whose adoption has been previously rescinded; or • (6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents. • (7) A child not otherwise disqualified by law or these rules.

What is an inter-country adoption? • It is a socio-legal process of adoption of a Filipino child by a foreigner or Filipino citizens permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines

CUSTODY OF MINOR

Venue • Family court where the petitioner resides or where minor resides

Points to remember • Petition for Habeas corpus involving custody of minor shall be filed with the Family Court. • If there is no Judge in the Family Court, the petition may be filed with the regular court but returnable to the family court. • May be filed to the regular court if there is no family court

Points to remember • Motion to dismiss is not allowed except lack of jurisdiction over the subject matter or over the parties (Section 6) • After the answer has been filed or the period to file the same expires, an order may be issued provisionally awarding the custody of the child to the petitioner (Section 13)

Points to remember • May it be filed with the Court of Appeals? • YES • But the writ is returnable to a Family Court or regular Court within the region where the petitioner resides or where the minor may be found.

HABEAS CORPUS Rule 102

Rule 102 • Section 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Case • A kid at the age of 14 ran away from home because her mother was very cruel in treating her. She sought sanctuary from a convent. Her mother filed a petition for habeas corpus. But the child chose to be in the convent. • Will the Petition prosper?

Case • NO. the best interest of the child dictates that the custody should be awarded to the convent. • In the Matter of the writ of habeas corpusof minor Sahng Ko Vingsong vs. Cabcaban, Jan. 13, 2014

Change of Name (Rule 103)

Where to file? • Regional Trial of the Province or city where the petitioner resides

Cancellation or Correction of Entries in the Civil Registry (Rule 108)

Who may file and where to file a Petition? • Section 1, Rule 108 - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located.

Section 1, RA 9048 • Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.

What may be cancelled or corrected? • Section 2. Entries subject to cancellation or correction. (a) births (b) marriage; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

May substantial error be corrected through Rule 108? • Rule 108 of the Rule provides the procedure for cancellation or correction of entries in the civil registry. The proceedings under said rule may either be summary or adversary in nature. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to adopted is adversarial. • Eloisida vs. Local Civil Register of QC, May 9, 2002

Republic vs. Olaybar (February 9, 2014), J. Peralta • Olaybar secured from the NSO a certificate of no marriage. When it was issued, it show therein that she was married to a korean where in truth and in fact, there was no marriage. Olaybar filed a petition for the cancellation of her marriage with such korean, impleading therein the Civil Registrar of cebu City and the alleged Korean. It was granted by RTC. Was the decision of RTC correct?

Republic vs. Olaybar (February 9, 2014), J. Peralta • Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings may either be summary or adversary. If the correction is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary.

Republic vs. Olaybar (February 9, 2014), J. Peralta • Since the promulgation of Republic v. Valenciain 1986, the Court has repeatedly ruled that "even substantial errors in a civil registry may be corrected through a petition filed under Rule 108, with the true facts established and the parties aggrieved by the error availing themselves of the appropriate adversarial proceeding." An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered.

Republic vs. Olaybar (February 9, 2014), J. Peralta • In filing the petition for correction of entry under Rule 108, respondent made the Local Civil Registrar of Cebu City, as well as her alleged husband Ye Son Sune, as parties-respondents. It is likewise undisputed that the procedural requirements set forth in Rule 108 were complied with. The Office of the Solicitor General was likewise notified of the petition which in turn authorized the Office of the City Prosecutor to participate in the proceedings.

Republic vs. Olaybar (February 9, 2014), J. Peralta • More importantly, trial was conducted where respondent herself, the stenographer of the court where the alleged marriage was conducted, as well as a document examiner, testified. Several documents were also considered as evidence. With the testimonies and other evidence presented, the trial court found that the signature appearing in the subject marriage certificate was different from respondent’s signature appearing in some of her government issued identification cards.

Republic vs. Olaybar (February 9, 2014), J. Peralta • The court thus made a categorical conclusion that respondent’s signature in the marriage certificate was not hers and, therefore, was forged. Clearly, it was established that, as she claimed in her petition, no such marriage was celebrated.

Republic vs. Olaybar (February 9, 2014), J. Peralta • To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws. (Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi Maekara, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General of the National Statistics Office)

Republic vs. Olaybar (February 9, 2014), J. Peralta • BUT: While we maintain that Rule 108 cannot be availed of to determine the validity of marriage, we cannot nullify the proceedings before the trial court where all the parties had been given the opportunity to contest the allegations of respondent; the procedures were followed, and all the evidence of the parties had already been admitted and examined.

Republic vs. Olaybar (February 9, 2014), J. Peralta • Respondent indeed sought, not the nullification of marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no marriage to speak of.

Republic vs. Norma Lugsanay-Uy August 12, 2013, J. Peralta • UY filed a Petition for Correction of Entry in her Certificate of Live Birth. Impleaded as respondent is the Local Civil Registrar of Gingoog City. She alleged that she was born on February 8, 1952 and is the illegitimate daughter of Sy Ton and Sotera Lugsanay. Her Certificate of Live Birth shows that her full name is “Anita Sy” when in fact she is allegedly known to her family and friends as “Norma S. Lugsanay.”

Republic vs. Norma Lugsanay-Uy August 12, 2013, J. Peralta • She further claimed that her school records, Professional Regulation Commission (PRC) Board of Medicine Certificate,8 and passport bear the name “Norma S. Lugsanay.” She also alleged that she is an illegitimate child considering that her parents were never married, so she had to follow the surname of her mother. She also contended that she is a Filipino citizen and not Chinese, and all her siblings bear the surname Lugsanay and are all Filipinos. RTC granted the Petition. • Is the RTC correct

Republic vs. Norma Lugsanay-Uy August 12, 2013, J. Peralta • NO. For failure to implead parties who may have interest in the petition. • Respondent’s birth certificate shows that her full name is Anita Sy, that she is a Chinese citizen and a legitimate child of Sy Ton and Sotera Lugsanay. In filing the petition, however, she seeks the correction of her first name and surname, her status from “legitimate” to “illegitimate” and her citizenship from “Chinese” to “Filipino.” Thus, respondent should have impleaded and notified not only the Local Civil Registrar but also her parents and siblings as the persons who have interest and are affected by the changes or corrections respondent wanted to make.

Republic vs. Norma Lugsanay-Uy August 12, 2013, J. Peralta • The fact that the notice of hearing was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. A reading of Sections 4 and 5, Rule 108 of the Rules of Court shows that the Rules mandate two sets of notices to different potential oppositors: one given to the persons named in the petition and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties. Summons must, therefore, be served not for the purpose of vesting the courts with jurisdiction but to comply with the requirements of fair play and due process to afford the person concerned the opportunity to protect his interest if he so chooses.

Appeals in Special Proceedings • Order or Judgment which may be appealed: • (a) Allows or disallows a will; • (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; • (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; • (d) Settles the account of an executor, administrator, trustee or guardian;

Appeals in Special Proceedings • Order or Judgment which may be appealed: • (e) 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 • (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing unless it be an order granting or denying a motion for a new trial or for reconsideration.

Not appealable • Order directing administrator to take action to recover amount due to the estate • Order made in the administration proceedings relating to inclusion or exclusion of items of property in the inventory of executor or administrator • Order appointing special administrator

Period for Appeal • 30 days from receipt of order or judgment appealed from • Except: In decision in habeas corpus which is 48 hours from receipt of judgment pursuant to Section 3, Rule 41 of the Rules on Civil Procedure

SPECIAL CIVIL ACTION

What are the actions which are considered special under the Rules? • • • • • • • • •

Interpleader (Rule 62) Declaratory Relief (Rule 63) Certiorari, Prohibition, Mandamus (Rule 65) Quo Warranto (Rule 66) Expropriation (Rule 67) Foreclosure of REM (Rule 68) Partition (Rule 69) Forcible Entry and Unlawful Detainer (Rule 70) Contempt (Rule 71)

Interpleader (Rule 62)

• Section 1. When interpleader proper. — Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.

Requisites • The plaintiffs claims no interest in the subject matter of his claim thereto is not disputed • There must be at least two conflicting claimants • The parties to be interpleaded must make effective claims • The subject matter must be one and the same

Problem 5 Roberto purchased a cashier’s check from the bank in favour of Tita. The Roberto claimed that the check was lost. On the other hand, Tita is having the check encashed in his favour. What is the remedy of the Bank?

Answer • Interpleader • Mesina vs. IAC, 145 SCRA 497

Declaratory Relief (Rule 63) • Section 1. Who may file petition. — Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

Other similar remedies under Rule 63 • Reformation of Instrument • Actions to quiet title • Petition for the consolidation of ownership

Certiorari (Rule 65) • Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

Requisites • That is it directed against a tribunal, board officer exercising judicial or quasi-judicial function • That such tribunal, etc., has acted without or in excess of jurisdiction or with grave abuse of discretion • there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law • The petition must be verified and must alleged facts with certainty • The petition must be accompanied by a certified true copy of the of the order or judgment sought to be annulled

Appeal by certiorari vs special civil action for certiorari Appeal by Certiorari

Special Civil Action for Certiorari

• An appeal by certiorari • What is sought to be brings up for review errors corrected are errors of of judgment committed by jurisdiction or grave abuse the court in the exercise of of discretion amounting to its jurisdiction amounting to lack or in excess of nothing more than error of jurisdiction judgment • Original action, the issue of • Petition is based on pure which is whether there is questions of law grave abuse of discretion or lack of jurisdiction

Appeal by certiorari vs special civil action for certiorari Appeal by Certiorari • Reviews judgment, award, • It may be directed against or final order on the merits interlocutory order. • Must be filed within the • May be filed not later than time for perfecting an 60 days from notice of appeal judgment or order appealed from • It stays the judgment, award or order appealed from • It does not stay, unless enjoined

Prohibition (Rule 65) • Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

Certiorari vs. Prohibition • Seeks to nullify or • Seeks the respondent to modify the proceedings desist from further of tribunal, etc proceeding • It is intended to annul • It is intended to restrain the proceedings the doing of some act • One is a corrective • This is a preventive remedy remedy

Prohibition (Rule 65) • Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

Period to file, certiorari, prohibition, mandamus • Section 4. When and where petition filed. — The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. • No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)

Where to file? • Section 4, 2nd par. - The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.

Quo Warranto (Rule 66) • Section 1. Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: • (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; • (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or • (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

Expropriation (Rule 67) • Section 1. The complaint. — The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.

Two stages in expropriation proceedings • First is the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise. If the plaintiff was able to show its right of eminent domain, then an order of appropriation shall be issued. • Second is the determination of the just compensation