2012 special proceedings

8/12/2019 2012 Special Proceedings

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R E M E D I A L L A W ( S P E C I A L P R O C E E D I N G S )M E M O R Y A I D

A T E N E O C E N T R A L B A R O P E R A T I O N S 2 0 0 2

RULE72 SUBJECTMATTERANDAPPLICABILITYOFGENERALRULES

1. Special proceedings:a. Settlement of estate of deceased persons

b. Escheatc. Guardianship and custody of childrend. Trusteese. Adoptionf. Rescission and revocation of adoptiong. Hospitaliation of insane patienth. Habeas corpusi. !hange of name

". #oluntary dissolution of corporations$. %udicial approval of voluntary recognition of minor natural children&l. !onstitution of family homem. 'eclaration of absence and death

n. !ancellation of correction of entries in civil registry

(. !ivil Action distinguished from Special )roceedings:

ACTION SPECIALPROCEEDINGS

To protect or enforce a right* or to preventor redress a +rong

To establish a status* right* or a particularfact

,nitiated by !omplaint ,nitiated by )etition

'efinite )arties 'efinite petitioner* no definite adverseparty

Ans+er is filed -pposition is filed

Handled by court of general "urisdiction Heard by court of limited "urisdiction

Adversarial ot adversarialStatute of /imitations applies o statute of limitations

10day appeal period 23day appeal period

2. %urisdiction and #enue in Special )roceedingsa. Settlement of estate of deceased persons

i. RT! 4 Gross value of the estate e5ceeds )(33*3336)733*333ii. 8T! 4 Gross value of the estate does not e5ceed )(33*3336)733*333

,f resident 4 place +here deceased resided at time of death

,f nonresident 4 place +here deceased had estate

b. Escheati. -rdinary escheat proceedings: RT!

,f resident 4 place +here deceased last resided

,f nonresident 4 place +here he had estateii. Reversion of land to State for violation of !onstitution 6 /a+s: RT! +hereland lies in +hole or in partiii. 9nclaimed deposits for 13 years;: RT! of province +here ban$ is located

all ban$s located in 1 province +here court is located may be madeparties defendant in 1 action.

c. Guardianship and custody of children:


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,f intercountry adoption 4 court +ho has "urisdiction over the adopteef. Rescission and revocation of adoption: Regional Trial !ourtg. Hospitaliation of insane patient: RT! in place +here person alleged to be

insane is found

h. Habeas corpusi. S!ii. !Aiii. RT! +ithin its respective region;iv. 8T! in absence of RT! "udges in province6city;

!hange of namei. %udicial Rules of !ourt;: RT! in place +here petitioner residesii. Administrative RA =37>;:

!ivil registar +here entry is located or if applicant migrated: civilregistar in place +here he resides

!onsul General: if applicant resides abroadi. #oluntary dissolution of corporations: SE!

". !onstitution of family home: under the


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c. Heirs are all of age or the minors are represented by their "udicial guardians orlegal representatives&

d. Settlement is made in a public instrument duly filed +ith the register of deeds&e.


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RULE77 ALLOWANCEOFWILLPROVEDOUTSIDEOFPILIPPINESANDADMINISTRATIONOFESTATETEREUNDER

1. ,n reprobate of +ill proven abroad* proponent must prove:a. Testator +as domiciled in the foreign country&

b. ?ill has been admitted to probate in such country&c.


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c. )rovisions and articles +hich +ill necessarily be consumed in the subsistence of

the deceaseds family.

RULE!4 GENERALPOWERSANDDUTIESOFE%ECUTORSANDADMINISTRATORS

1. General )o+ers and 'uties of E5ecutors and Administrators:a. Have access to partnership boo$s and property&b. 8aintain in tenantable repair the houses and other structures and fences

belonging to the estate and deliver the same to the heirs and devisees +hendirected to do so by the court& A'

c. Right to the possession and management of the real and personal estate so longas it is necessary for the payment of debt and e5penses of administration.

(. Ho+ right to have access to partnership boo$s and property enforced:a. -n the +ritten application of e5ecutor or administratorb. !ourt having "urisdiction of the estate mayc. -rder any such surviving partner or partners to:

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a. To recover real or personal property or an interest therein&b. To enforce a lien thereon&c. To recover damages for an in"ury to person or property.

(. Re@uisites for creditor instead of the e5ecutor6administrator; to be able to file an

action to recover property fraudulently conveyed by the decedent:a. There is a deficiency of assets in the hands of the e5ecutor6administrator for the

payment of the debts and e5penses&b. The deceased in his lifetime had made or attempted; a fraudulent conveyance of

his property +ith intent to defraud his creditors* or to avoid any right* debt or duty*or had made any such conveyance +hich +ould be void as against his creditors&

c. The sub"ect of the conveyance +ould be liable to attachment by any of thecreditors during the decedents lifetime&

d. The e5ecutor6administrator has sho+n to have no desire or interest to file theaction* or has failed to do so +ithin a reasonable time&

e. /eave of court is obtained&f. A bond is filed by the creditor to indemnify the e5ec6admin against all costs and

e5penses incurred by reason of the action& andg. The action is brought in the name of the e5ec6admin.

H-?E#ER* if the e5ec6admin +as himself the transferee of the fraudulentconveyance* the last 2 re@uisites are not re@uired* and the action is brought inthe name of all the creditors.

RULE!! PAYMENTOFTEDEBTSOFTEESTATE1. -rder of payment of debts:

a.


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2. 'isposition of escheated property:a. ,f real 4 to municipalities or cities located&b. ,f personal 4 1; To city or municipality +here decedent last resided in )hils&

(; ,f decedent never resided in )hils* then to municipality or city

+here located.7. 'evisee* legatee* heir* or any other person entitled to the estate may file a claim +iththe court +ithin 0 years from date of the "udgment.

GENERAL GUARDIANS AND GUARDIANSIP

RULE#2 VENUE1. #enue of guardianship proceedings: in RT! of province +here the minor or

incompetent resides* or if nonresident* in any province +herein his property islocated

-TE: Residence means domicile.

RULE#3 APPOINTMENTOFGUARDIANS1. ?ho may petition for appointment of guardian:

a. Any relative* friend or other person on behalf of the minor6incompetent&b. The minor himself* if 17 or over.

(. !ontents of petition:a. %urisdictional facts& minority6incompetency and his domicile;b. 8inority or incompetencyc. ames* ages and residences of the relatives of the minor6incompetent* and of

the persons having him in their care&d. )robable value and character of property of estate& ande. ame of person for +hom letters or guardianship are prayed

2. otice of date and place of hearing to be given to all persons named in the petition

residing in the province* and to the minor himself if over 17 -TE: not 17 or over;

RULE#4 BONDSOFGUARDIANS1. 9nderta$ing of bond of guardian:

a. 8a$e and return a complete inventory of the property of the estate +hich hascome to his possession or $no+ledge* or the possession of any person for him*+ithin 2 months&

b. To faithfully e5ecute the duties of his trust&c. To render a true and "ust account& andd. )erform all orders of the court.

(. Cond may be proceeded against in the same or separate proceeding for the use andbenefit of the +ard* or of any other person legally interested in the estate.

RULE#5 SELLINGANDENCUMBERINGPROPERTYOFWARD1. ?hen real property of +ard may be sold or encumbered:

a. ?hen income of +ards estate is insufficient to maintain +ard and his family ifincompetent;* or to maintain and educate the +ard if minor;&

b. ?hen it appears beneficial to the +ard

Guardian shall then file a verified petition setting forth such facts and praying forthe authority to ma$e such sale or encumbrance

(. -rder granting the authority to sell shall last for only 1 year.

RULE#6 GENERALPOWERSANDDUTIESOFGUARDIANS1. Every guardian* other than the +ards parents* shall be allo+ed the amount of his

reasonable e5penses* and compensation +hich shall not e5ceed 10I of the ETincome of the estate.

RULE#7 TERMINATIONOFGUARDIANSIP1. Grounds for removal of a guardian:

a. ,nsanity&b. Cecomes incapable of discharging his trust&c. ?aste6mismanagement of estate&

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d.


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d. ame* age and residence of the adoptee and his relatives or of the persons +hohave him under their care&

e. )robable value and character of the estate of the adoptee.7. ?ho may be adopted

a. Celo+ 1> and declared available for adoptionb. /egitimate son6daughter of one spouse

Even if beyond 1>c. ,llegitimate son6daughter

Even if beyond 1>d. -ne of legal age but treated as o+n child since minoritye. !hild +ith rescinded adoptionf. !hild +hose parents are dead

month bar to any proceedings0. ?hose consent needed:

a. The adoptee if 13 years old or upb. Ciological parents6legal guardian6proper government instrumentality&

c. /egitimate and adopted children* 13 years or over* of adopter and adoptee* ifany&

d. ,llegitimate children of adopter* 13 years or over* if living +ith adopter and thelatters spouse* if any.

e. Spouse* if any* of person adopting and to be adopted. )rocess under the 'omestic Adoption Act;

a. !ase studyi. Adopteeii. Ciological )arentsiii. Adopter

'uty of the social +or$er to confirm identity and register the child

'iscretion of 'S?' to recommend denial of petition +hen necessary

The social +or$ers of the courts may underta$e the case studies in lieu of the'S?' social +or$er since B11 of the 'omestic Adoption Act* +hichenumerates the people +ho may underta$e the case studies* is -Te5clusive. A.8. no. 33>32S!* effectiveSeptember1* (333;

b. Supervised trial custodyi. months bondingii. Temporary parental authorityiii. )eriod may be reduced

E%ceptio: Alien adopter full months;E%ceptio to E%ceptio: Relative adoption

c. 'ecree of adoption

After publication

o opposition

Evidence considered

Effective date: As of filing of original petition even if petitioner dies beforeissuance;

d. Amendment of certificate of birth

-riginal birth certificate canceled

e+ birth certificate issued +ithout notation of amended issue;e. !onfidentiality

)ublic not allo+ed in proceedings

Records confidential

!ourt order needed for disclosure

RULE$00 RESCISSIONANDREVOCATIONOFADOPTION1. ?ho may petitionL Adoptee only.(. Grounds:

a. Repeated physical and verbal maltreatmentb. Attempt on lifec. Se5ual assault6violenced. Abandonment and failure to comply +ith parental obligation

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2. Remedy of adopter against the erring adopteea. 'isinheritance

7. Effects of rescission:a. Restoration of previous legal custody for minors;

b. E5tinguishment of reciprocal rightsc. !ancellation of amended birth certificate and restoration of original birth

certificate

#ested rights respecting criminal sanctions remain.

RULE$0$ PROCEEDINGSFOROSPITALIATIONOFINSANEPERSONS1. ?ho files a petition for commitment of an insane person: Secretary of Health(. ?here petition is filed: RT! of the province +here the person alleged to be insanemay be found.2. !ases petition should be filed: in all cases +here in the opinion of the Secretary ofHealth* such confinement is:

a. for the public +elfare

b. for the +elfare of a person +ho in the Secretarys "udgment is insane* and suchperson or the one having charge of him is opposed to his being ta$en to a hospital orother placed for the insane.

RULE$02 ABEASCORPUS1. The +rit of habeas corpus is a +rit directed to the person detaining another*

commanding him to produce the body of the prisoner at a designated time and place*+ith the day and cause of his caption and detention* to do* submit to* and receive+hatever the court or "udge a+arding the +rit shall consider in that behalf.

(. The +rit of habeas corpus may be obtained in t+o instances:a. deprivation of liberty public officers police;b. rightful custody is +ithheld private persons detaining custody of minor child;

2. ?rit of habeas corpus may also be availed of as a conse@uence of a "udicialproceeding:a. There has been a deprivation of a constitutional right resulting in restraint of

person&b. The court had no "urisdiction to impose the sentence&c. An e5cessive penalty has been imposed* the sentence being void as to the

e5cess.(. !ontents of petition: must be signed and verified* and shall set forth

a. That the person in +hose behalf the application is made is imprisoned orrestrained of his liberty

b. The officer or name of the person by +hom he is imprisoned or restrained&c. )lace +here he is imprisoned or restrained* if $no+n&

d. !opy of the commitment or cause of the detention* if it can be procured +ithoutimpairing the efficiency of the remedy if no legal authority for imprisonment* suchfact shall appear;

2. !ontents of the Return of the ?rit:a. ?hether he has the party under his custody* po+er or restraint&b. ,f he does* the authority and cause upon +hich he is held* together +ith a copy of

the +rit* order* e5ecution or other process&c. ,f party is in his custody and is not produced* the gravity of his sic$ness or

infirmity by reason of +hich he cannot be produced& andd. ,f he previously had custody* and has transferred the same to another* then state

to +hom* at +hat time* for +hat cause* and by +hat authority such transfer +asmade.

7. ,f it appears that that the prisoner is under custody under a +arrant of commitment inpursuance of la+* the return shall be prima facie evidence of the cause of therestraint. -ther+ise* the return shall be only considered as a plea of the facts setforth* and the party claiming custody must prove the same. Therefore* in the formercase* failure to file a reply to the Return +arrants the dismissal of the petition. This isbecause unless the allegations are controverted* they are deemed to be true andadmitted* the return being prima facie evidence of the cause of the restraint.

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0. )RE/,8,ARF!,TAT,-4 +here a person detained under governmental authority andthe illegality of his detention is not patent from the petition for the +rit* the court mayissue a citation to the government officer having the person in her6his custody tosho+ cause +hy the +rit should not issue.

)ERE8)T-RF?R,T4 issued +hen the cause of detention appears to patently illegaland the noncompliance there+ith is punishable

. Elepate vs. 'ada!a#: An appeal in Habeas !orpus proceedings should beperfected i.e. by filing otice of Appeal; withi () hours* compliance +ith +hich ismandatory and "urisdictional. ,n counting the 7> hours* the date on +hich thedecision +as promulgated is not counted* and the period starts to run the follo+ingday

RULE$03 CANGEOFNAME1. #enue 4 RT! of province +here petitioner resides(. !ontents of petition

a. That petitioner is a boa fideresident of the province for at least 2 years prior to

the date of the filing of the petitionb. !ause for +hich the change of name is soughtc. ame as$ed for B(;d. All names and aliases of petitioner *epublic vs. +osa;

2. otice of hearing published once a +ee$ for 2 consecutive +ee$s.7. 'ate of hearing: cannot be held +ithin 23 days before an election* or +ithin 7

months after last publication

7 months 23 days

Hearing cannot be scheduled +ithin these periods0. Title of )etition: 8ust include name* aliases* and name as$ed for. E5ample: ,n Re:

)etition for !hange of ame of J* alias F* to M. J* )etitioner.. )ublication: must reproduce title of the petition see above;* and contain correct

information as to:a. ame or names of petitioner&b. !ause for the change of name&c. ame as$ed for.

and 11= of the !orporation !ode

RULE$05 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURALCILDREN

Recognition of natural children art. (D>*!!;

-nly evidence accepteda. Record of birthb. ?illc. Statement before court of recordd. Any authentic +riting

RULE$06 CONSTITUTIONOFFAMILYOME

'amended by Articles 10( and 102 of the


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c. ames and residences of creditors and other persons +ith adverse interests overthe properties of the absentee&

d. )robable value* location and character of the property of the absentee.(. otice of hearing: published once a +ee$ for 2 consecutive +ee$s* and personal

notice sent to all $no+n heirs* legatees* devisees* creditors and other interestedpersons at least 13 days before the hearing.

RULE$0! CANCELLATIONANDCORRECTIONOFENTRIESINCIVILREGISTRY1. #enue for petitions for cancellation6correction of entry in !ivil Registry: RT! of

province +here the corresponding civil registry is located.(. )arties to proceedings:

a. The civil registrar A'b. All persons +ho have or claim any interest +hich +ould be affected thereby

E%TRA RA #04! A A!T A9TH-R,M,G THE !,TF -R 89,!,)A/ !,#,/ REG,STRAR -R THE !-S9/GEERA/ T- !-RRE!T A !/ER,!A/ -R TF)-GRA)H,!A/ ERR-R , A ETRF A'6-R !HAGE -<


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ii. at least ( public or private documents sho+ing the correct entry or entriesupon +hich the correction or change shall be based

iii. other relevant documents

>. 'ifferences bet+een RA =37> and Rule 13>RA #04! RULE$0!

Administrative proceeding Summary "udicial proceeding

Affidavit is filed )etition is filed

)enalty clause o penalty clause

)ublication re@uirement: once a +ee$ for (consecutive +ee$s

)ublication re@uirement: 2 consecutive+ee$s

)osting in conspicuous place o posting

!hange of name is based on 2enumerated grounds

!hange of name is to correct clerical 6innocuous errors

RULE$0# APPEALSINSPECIALPROCEEDINGS1. Appeals in special proceedings may be ta$en from the follo+ing orders6"udgments:

a. Allo+ance6disallo+ance of +ills&b. 'etermination of la+ful heir or distributive share of the estate to +hich such

person is entitled&c. Allo+ance6disallo+ance of any claim against the estate of a deceased person or

any claim presented on behalf of the estate to offset claim against it&d. Settlement of account of e5ecutor* administrator* trustee* or guardian&e. !onstitutes* in proceedings relating to settlement of estate or administration of a

trustee or guardian* a final determination in the lo+er court of the rights of theparty appealing* EJ!E)T that no appeal is allo+ed from appointment of specialadministrator.

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2012 special proceedings

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