Special proceedings enumerated in the Rules of Court (J-CRASHED-CHAG)1.Judicial approval of voluntary recognition of minor natural children;2.Change of name;3.Rescission and revocation of adoption;4.Adoption;5.Settlement of estate of deceased persons;6.Habeas corpus;7.Escheat;8.Declaration of absence and death;9.Cancellation and correction of entries in the civil registry;10.Hospitalization of insane persons;11.Adoption;12.Guardianship and custody of children;

Other Special Proceedings (LCR-VA)1.Liquidation proceedings;2.Corporate rehabilitation;3.Recognition and enforcement of arbitration clause or award;4.Vacation, setting aside, correction or modification of an arbitral award;5.Any application with a court for arbitration assistance and supervision.

Different modes of settlement of estate of a deceased person/presumed dead1.Extrajudicial Settlement of Estate (Section 1, Rule 74); 2.Summary Settlement of Estate of Small Value (Section 2, Rule 74); 3.Partition (Rule 69);4.Probate of Will (Rule 75 to 79); 5.Petition for Letters of Administration in cases of Intestacy (Rule 79);

Jurisdiction: It depends upon the gross value of the estate of the decedent:1.In Metro Manila MTC: gross value does not exceed PhP400,000.00, otherwise, RTC; 2.Outside Metro Manila MTC: gross value does not exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4), Sec. 33(1), B.P. Blg. 129).

Remedy if venue is improperly laidGeneral Rule: Ordinary appeal not certiorari or prohibition.

Exception: If want of jurisdiction appears on the record of the case (Sec. 1, Rule 73).

Two kinds of settlement1.Extrajudicial settlement a proceeding where the decedent had left no will and no debts, and the heirs adjudicate the estate among themselves without seeking letters of administration (Sec. 1, Rule 74).2.Judicial settlement Testate or intestate proceeding instituted in the country where decedent had his residence at the time of his death or had estate if a nonresident (Sec. 2, Rule 74).a.Summary judicial proceedings (if the value of estate is below PhP10,000);b.Regular settlement proceedings Extent of jurisdiction: Probate courts are courts of limited jurisdiction. it may only determine and rule upon issues relating to the settlement of the estate, namely: (LAD)1.Liquidation of the estate; 2.Administration of the estate; and3.Distribution of the estate (Herrera, Special Proceedings and Special Rules Implementing the Family Courts Act of 1997, 2005 ed., p. 12).

General Rule: Probate court cannot determine issue of ownership.

Exceptions: 1.Ownership may be provisionally determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action (Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504, May 7,1987);2.When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced (Bernardo v. Court of Appeals, G.R. No. L-18148, Feb. 28, 1963);3.Question is one of collation or advancement (Coca, et al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31, 1978).

Other questions which the probate court can determine 1.Who the heirs of the decedent are;2.The recognition of a natural child;3.The validity of disinheritance effected by the testator;4.Status of a woman who claims to be the lawful wife of the decedent5.The validity of a waiver of hereditary rights;6.The status of each heir; 7.Whether property in inventory is conjugal or exclusive property of deceased spouse;8.Matters incidental or collateral to the settlement and distribution of the estate (Regalado, Remedial Law Compendium Vol. II, 2008 ed., p. 13).

Exclusionary RuleGeneral Rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts.

The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval v. Santiago, G.R. No. L-1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (Rodriguez v. De Borja, G.R. No. L-21993, June 21, 1966).

Exception: Estoppel by Laches

Writ of Execution

General Rule: Probate court cannot issue writs of execution.

Ratio: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process (Regalado, p.14).

Exceptions: (CEE)1.To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88);2.To enforce payment of the expenses of partition (Sec. 3, Rule 90); 3.To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142).

The returning absentees recovery of his estate is subject to the following conditions:1.All his debts must have been paid;2.He shall recover his property in the condition in which it may be found together with the price of any property that may have been alienated or the property acquired therewith;3.He is not entitled to the fruits of the rent (Art. 392, New Civil Code).

SUMMARY SETTLEMENT OF ESTATES

Requisites:A.Substantive1.The decedent left -a.No will; b.No debts.2.The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose.B.Procedural1.Division of estate must be in a public instrument or by affidavit of self-adjudication in the case of a sole heir;2.Filed with proper Registry of Deeds;3.Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks;4.Filing of the bond with the Register of Deeds equivalent to the value of personal property. (Sec. 1, Rule 74).

Affidavit of Self Adjudication An affidavit required by Sec 1 of Rule 74 to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent.

Is a public instrument necessary for the validity of an extra-judicial settlement? No. A private instrument/document or oral agreement of partition as well as a compromise agreement entered without previous authority of the court is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in a public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, March 29, 1947). Under the new Rules, it would appear that a public instrument is now required for registration. If the settlement is in a private instrument, it is believed that the same is still valid and reformation of the instrument may be compelled (Arts. 1359, et. seq., New Civil Code).

Disputable presumption that decedent left no debts: If no creditor files a petition for letters of administration within 2 years after the death of the decedent it is presumed that the estate left no debts (Sec. 1, Rule 74).Is a person who had no knowledge or had not participated in the extrajudicial settlement bound thereby by reason of constructive notice of publication? No. Extrajudicial settlement under Sec. 1 of Rule 74 is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby, and contemplates a notice that has been sent out or issued before any deed of settlement or partition is agreed upon, and not after such agreement has already been executed. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the estate (Benatiro v. Heirs of Cuyos, G.R. No. 161220, July 28, 2008).

Note: The other heirs are also not bound by the extrajudicial settlement should the Deed of Extrajudicial Partition or Affidavit of Self-Adjudication be false (Sec. 4 in relation to Sec. 1).

Remedies of the Aggrieved Parties after Settlement of the Estate1.Within 2 years - claim against the bond or the real estate or both (Sec.4, Rule 74);2.Rescission in case of preterition of compulsory heir in partition tainted with bad faith (Article 1104, NCC);3.Reconveyance of real property;4.Action to annul a deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud;5.Petition for Relief on the ground of FAME fraud, accident, mistake, excusable negligence 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38); 6.Reopening by Intervention within anytime before rendition of judgment, as long as it is within the reglementary period of 2 years;7.New action to annul settlement within reglementary period of 2 years.

Nature of probate proceedings1.In Rem: binding on the whole world (Regalado, p. 31).2.Mandatory: no will shall pass either real or personal property unless it is proved and allowed in the proper court (Sec. 1, Rule 75).

However, a will may be sustained on the basis of Article 1080 of the Civil Code which states that: If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang-Oy v. Court of Appeals, G.R. No. L-27421, September 12, 1986).

3.Imprescriptible because of the public policy to obey the will of the testator.4.The doctrine of estoppel does not apply.

The custodian must deliver the will to the court or to the executor within 20 days after he learns of the death of the testator.

SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUSTThe executor, within 20 days after he knows of the testators death or after he knows that he is named an executor if he knows it after the testators death, shall:1.Present the will to the court (unless it has reached the court in any other manner); and2.Signify in writing his acceptance or refusal of the trust.

SECTION 1. WHO MAY PETITION FOR THE ALLOWANCE OF WILL1.Executor;2.Devisee or legatee named in the will;3.Person interested in the estate (e.g. heirs);An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Sumilang v. Ramagosa, G.R. No. L-23135, December 26, 1967).4.Testator himself during his lifetime;5.Any creditor - as preparatory step for filing of his claim therein (Regalado, p.30).

Meaning of due execution (FM-VPS)1.That the will was executed strictly in accordance with the formalities required by law;2.That the testator was of sound and disposing mind when he executed the will; 3.That there was no vitiation of consent through duress, fear or threats;4.That it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit;5.That the signature of the testator is genuine, i.e., it was not procured through fraud and that the testator intended that what he executed was his last will and testament (Art. 839, New Civil Code).

If the petition for probate is on the testators own initiative during his lifetime (Ante Mortem):1.No publication is necessary (Sec. 3); and2.Notice shall be made only to the compulsory heirs (Sec. 4).

Facts which should be proved in order that a lost or destroyed will may be allowed:1.That the will has been duly executed by the testator;2.That the will was in existence when the testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and3.The provisions of the will are clearly established by at least two credible witnesses.

SECTION 9. GROUNDS FOR DISALLOWING WILL

Grounds provided for are exclusive: (FIDUS)1.If not executed and attested as required by law; (formalities)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.

Matters to be proven during a re-probate proceeding:1.That the testator was domiciled in a foreign country;2.That the will has been admitted to probate in such country;3.That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings;4.The law on probate procedure in said foreign country proof of compliance therewith; and5.The legal requirements in said foreign country for the valid execution of the will (De Perez v. Tolete, supra).

Effects of the allowance of a will under Rule 77:1.The will shall be treated as if originally proved and allowed in Philippine courts;2.Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines;3.After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

Who can administer the estate?1.Executor the one named by the testator in his will for the administration of his property after his death.2.Administrator, regular or special the one appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate (Rule 80).3.Administrator with a will annexed the one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such (Rule 79, Section 1).

SECTION 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS1.A minor;2.A non-resident;3.One who in the opinion of the court is unfit to exercise the duties of the trust by reason of:a.Drunkenness b.Improvidencec.Want of understandingd.Want of integritye.Conviction for an offense involving moral turpitude

Testamentary Privilege The right given by law to a person to dispose of his property when he dies.

Letters Testamentary An authority issued to an executor named in the will to administer the estate (Festin, p. 46).

Letters of Administration An authority issued by the court to a competent person to administer the estate of the deceased who died intestate (Festin, p. 46).

Letters of Administration with a Will Annexed An authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office or if the person name is incompetent.

Order of preference in granting letters of administration1.The surviving husband or wife or the next of kin, or both in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve (surviving spouse or next of kin or their nominee);

Next of Kin Those persons who are entitled by law to receive the decedents property (Regalado, p. 46).

2.If the surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, or if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration by them or their nominee, any one or more of the principal creditors, if competent and willing to serve;

However, neglect of such persons to apply for letters administration for 30 days after death is not sufficient to exclude the widow from the administration of the estate of her husband. There must be a very strong case to justify the exclusion of the widow from the administration (Herrera, p. 84).

3.If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select (stranger).

When may a probate court appoint a special administrator?1.Delay in granting of letters by any cause including appeal in the probate of the will;2.Executor is a claimant of the estate that he represents (Section 8, Rule 86).

SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR1.Possess and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same;2.Commence and maintain suit for the estate;3.Sell only:a.Perishable property; andb.Other property ordered sold by the court; 4.Pay debts only as may be ordered by the court.

Conditions of the bonds:1.Make within 3 months a true and complete inventory of the property of the deceased which came to his knowledge and possession;2.Administer the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds;3.Render a true and just account within one year and when required by the court;4.Perform all orders of the court.

SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL

Grounds for removal of executor or administrator (RSPAI)1.Neglect to perform an order or judgment of the court or a duty expressly provided by these rules;2.Absconding; or3.Insanity or incapability or unsuitability to discharge the trust; 4.Neglect to render accounts (within 1 year and when required by the court);5.Neglect to settle estate according to these rules.

Power of the new executor or administrator1.Collect and settle the estate not administered;2.Prosecute or defend actions commenced by or against the former executor or administrator; and3.Have execution on judgments recovered in the name of former executor or administrator.

Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing.SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED1.Wearing apparel of the surviving spouse and minor children;2.Marriage bed and bedding;3.Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased.

Powers of the executor or administrator of the estate (BERIP)1.To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner;2.To examine and make invoices of the property belonging to the partnership in case of a deceased partner;3.To maintain in tenantable repair, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court;4.To make improvements on the properties under administration with the necessary court approval except for necessary repairs (Herrera, p. 121);5.To possess and manage the estate when necessary:a.For the payment of debts; andb.For payment of expenses of administration.

Some restrictions on the power of an administrator or executor (cannot ABS-LCP)1.Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration Art. 1491, NCC);2.Cannot borrow money without authority of the court;3.Cannot speculate with fund under administration (Sec. 2, Rule 85);4.Cannot lease the property for more than one year (Art. 1878, NCC);

Claims arising after his death cannot be presented except for: 1.Funeral expenses; and 2.Expenses of the last sickness of the decedent.

Statute of Non-Claims The period fixed by the rule for the filing of the claims against the estate.

General Rule: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Otherwise, they are barred forever.

Exception: Belated claims

Belated Claims Claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding 1 month from the order allowing belated claims.

Note: The statute of non-claims supersedes the statute of limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect; thus, a creditor cannot claim, even if within the statute of non-claims, if his claim has already prescribed under the statute of limitations.

However, a creditor barred by the Statute of Non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor (Sec 5).

Claims which should be filed under the Statute of Non-claims 1.Money claims, debts incurred by deceased during his lifetime arising from contract:a.Express or implied;b.Due or not due;c.Absolute or contingent.2.Claims for funeral expenses;3.For the last illness of the decedent;4.Judgment for money against decedent.

Absolute Claim Such a claim as, if contested between living persons, would be proper subject of immediate legal action and would supply a basis of a judgment for a sum certain.

Contingent Claim A conditional claim or claim that is subject to the happening of a future uncertain event.

Creditor holding a claim secured by a mortgage or other collateral security

Alternative remedies: (AFR)1.Abandon or waive the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate;2.Foreclose his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a claim (contingent) against the estate within the statute of non-claims;

3.Rely solely on his mortgage and foreclose (judicially or extrajudicially) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate.

SECTION 10. WHEN CREDITOR MAY BRING ACTION. LIEN FOR COSTS

Requisites Before Action may be filed by Creditors: (D-FAN LaBaN)1.There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration;2.The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law the conveyance would be void as against his creditors;3.The subject of the attempted conveyance would be liable to attachment in his lifetime;4.The executor or administrator has shown no desire to file action or failed to institute the same within a reasonable time;5.Leave is granted by the court to the creditor to file the action;6.A bond is filed by the creditor;7.The action by the creditor is in the name of the executor or administrator.

Guardianship The power of protective authority given by law and imposed in an individual who is free and in enjoyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself (Herrera, p. 235).

SECTION 1. WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT (AFOD)1.Any relative;2.Friend; or3.Other person on behalf of the resident incompetent who has no parents or lawful guardian; or4.The Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper.

SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONSBefore an appointed guardian enters upon the execution of his trust, he shall give a bond.

Conditions: (IFAP)1.To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2.To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3.To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; 4.To perform all orders of the court by him to be performed.

SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO SELL OR ENCUMBER ESTATEA.Grounds1.When the income of estate is insufficient to maintain the ward and his family or;2.When it appears that it is for the benefit of the ward.B.Requirements1.Petition must be verified;2.Notice must be given to the next of kin; and3.Hearing so that they may show cause why petition should not be granted.

Duration of the order of sale and encumbrance of property: Within 1 year from the granting of the order. It is presumed that if the property was not sold within 1 year, the ward has sufficient income.

General powers and duties of guardians (MSICAP)1.Manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4);2.Settle accounts, collect debts and appear in actions for ward (Sec. 3); 3.Render a verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons (Sec. 7);4.To have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be (Sec. 1);5.Render to court for its approval an accounting of the property for 1 year from his appointment and every year thereafter, and upon application of interested persons (Sec. 8); and6.Pay the debts of the ward (Sec. 2).

Grounds for termination:1.Competency of the ward has been judicially determined;2.Guardianship is no longer necessary;3.Death of guardian;4.Death of ward.Grounds for removal of a guardian1.Insanity;2.Incapability or unsuitability to discharge functions;3.Wastage or mismanagement of the property of the ward; and4.Failure to render an account or make a return within 30 days after it was due.

The remedy of a guardian from the order of removal is to appeal (Olarte v. Enriquez, G.R. No. L-16098, October 31, 1960).

RULE ON GUARDIANSHIP OF MINORSGrounds of petition (D SuRe Best)1.Death, continued absence, or incapacity of his parents; 2.Suspension, termination or deprivation of parental authority;3.Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority;4.When the best interests of the minor so require (Sec. 4).

Considerations in appointing guardians (MP FRALA)1.Moral character;2.Physical, mental and psychological condition;3.Financial status;4.Relationship of trust with the minor;5.Availability to exercise the powers and duties of a guardian for the full period of the guardianship;6.Lack of conflict of interest with the minor;7.Ability to manage the property of the minor (Sec.

Who may be appointed guardian of the person or property, or both, of a minor: In default of parents or a court-appointed guardian, the court may appoint a guardian of a minor, observing as far as practicable, the following order of preference:(G-BAO)1.The surviving grandparent and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations;2.The oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;3.The actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and4.Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6).

Grounds for termination of guardianship 1.The ward has come of age; or2.Has died (Sec. 25).

Petition to sell or encumber property Grounds:1.When the income of estate is insufficient to maintain and educate ward when a minor; or 2.When it appears that it is for the benefit of the ward.

Nature and concept of adoption: Adoption is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation (Herrera, p. 317).

Adoption is not an adversarial proceeding. There is no particular defendant since the proceeding involves the status of a person it being an action in rem (Herrera, p. 324).

Procedure for Domestic Adoption under AM-02-6-02-SC

Who may adopt (Sec.4)A.Any Filipino Citizen 1.Of legal age; 2.In possession of full civil capacity and legal rights; 3.Of good moral character; 4.Has not been convicted of any crime involving moral turpitude; 5.Emotionally and psychologically capable of caring for children; 6.At least 16 years older than the adoptee. Except: when the adopter is the adoptees biological parent or the spouse of the adoptees parent; and 7.In a position to support and care for his/her children in keeping with the means of the family.B.Any alien possessing the same qualifications as above, Provided:1.That his country has diplomatic relations with the Philippines;2.That he has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption; 3.Maintains residence until the adoption decree is entered; 4.Certified by his diplomatic or consular office or any appropriate government agency to have legal capacity to adopt by his country; and 5.That his government allows the adoptee to enter his country as his adopted child.

The requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following:a.A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; orb.One who seeks to adopt the legitimate child of his Filipino spouse; orc.One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. C.The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

Who may be adopted (Sec. 5)1.Any person below 18 years of age who has been judicially declared available for adoption or voluntarily committed to DSWD;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;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;6.A child whose biological or adoptive parents have died, but no proceedings shall be initiated within 6 months from the time of death of said parents; 7.A child not otherwise disqualified by law or these rules.

Joint adoption of spousesGeneral rule: Husband and wife shall jointly adopt (Art. 185, Family Code).

Exceptions:1.If one spouse seeks to adopt the legitimate child of the other;2.If one spouse seeks to adopt his own illegitimate son/daughter, provided that the other spouse has signified his consent thereto; 3.If the spouses are legally separated from each other (Sec. 4, A.M. 02-6-02-SC).

Effects of adoption1.Adopter will exercise parental authority;2.All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter;3.Adoptee shall be considered legitimate child of adopter for all intents and purposes;4.Adopters shall have reciprocal rights of succession without distinction from legitimate filiation.

Who may rescind the adoption? The adopter cannot rescind the adoption, only the adoptee may rescind within 5 years from reaching the age of majority or after recovery from incompetency. Such a petition for rescission shall be filed in the Family Court where the adoptee resides. In case of a minor, he shall be assisted by a social work from DSWD or by the minors guardian, if he is over 18 years of age but is incapacitated.

The adopter may not rescind the adoption; however, he may disinherit the adopted child (Art. 919, Civil Code).

Grounds for rescission (Sec. 19)1.Repeated physical and verbal maltreatment despite having undergone counseling;2.Attempt on the adoptees life;3.Sexual assault or violence;4.Abandonment or failure to comply with parental obligations.

INTER-COUNTRY ADOPTIONWhere to file petition 1.A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found;2.It may be filed directly with the Inter-Country Adoption Board (Sec. 28).

Who may adopt:1.Any alien or Filipino citizen permanently residing abroad who is at least twenty-seven (27) years of age; 2.Other requirements are the same as with R.A. No. 8552.

Who may be adopted: Only a child legally available for domestic adoption may be the subject of inter-country adoption (Sec.29).

Best interest of the minor standardBest interest of the minor standard refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor (Sec. 14 A.M. No. 03-04-04-SC 2003-04-22).

Domestic AdoptionInter-Country Adoption

Judicial AdoptionExtrajudicial Adoption

R.A. No. 8552 (Domestic Adoption Act) amended Arts. 183-193 of the Family Code and is the governing law for Filipino citizens adopting other Filipinos (whether relatives or strangers) with some exceptions.

Procedure governed by A.M. No. 02-06-02-SC.

Rescission of adoption is no longer allowed under R.A. No. 8552.R.A. No. 8043 (Inter-Country Adoption Act) governs the adoption of Filipinos by foreigners, and is implemented by the Inter-Country Adoption Board.

Procedure governed by Amended Implementing Rules and Regulations on Inter Country Adoption Act approved January 8, 2004.

Definition of a Child

Child is a person below 18 years of age.A person below 15 years of age unless sooner emancipated by law.

Who may Adopt

a. Any Filipino citizen;b. Any alien possessing the same qualifications for Filipino nationals;c. Guardian with respect to the wardAn alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child.

Qualifications

Filipino Citizen1. Legal age;2. In possession of full civil capacity and legal rights;3. Good moral character;4. Has not been convicted of any crime involving moral turpitude;5. Emotionally and psychologically capable of caring for children; and6. At least 16 years older than the adoptee (waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent)

Alien1. Same as the qualifications for Filipino citizens;2. His/her country has diplomatic relations with the Philippines;3. He/she has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered;4. 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; and5. His/her government allows the adoptee to enter his/her country as his/her adopted son/daughter

Residency and certification of the aliens qualification to adopt may be waived on any of the following:1. A former Filipino citizen who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity;2. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; 3. 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 4. If the spouse 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.

GuardianOnly after the termination of the guardianship and clearance of his/her financial accountabilities1. At least 27 years of age and at least 16 years older than the adoptee at the time of the application for adoption unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent;2. If married, his/her spouse must jointly file for the adoption;3. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country;4. Has not been convicted of a crime involving moral turpitude5. Eligible to adopt under his/her national law;6. In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;7. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;8. Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws;9. Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

Who may be adopted

1. Any person below 18 years of age who has been administratively or judicially declared available for adoption;2. Legitimate son/daughter of one spouse by the other spouse3. Illegitimate child by a qualified adopter to improve his/her status to that of legitimacy;4. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;5. A child whose adoption has been previously rescinded; or6. A child whose biological or adoptive parent(s) has died: Provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s).Only a legally free child may be the subject of inter-country adoption.

Where to file application

Family Court of the place where the adopter resides

After filing: The petition shall not be set for hearing without a case study report by a licensed social worker.RTC (Family Court) having the jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

After filing: (a) if filed in the Family Court, it shall determine the sufficiency of petition in respect to form and substance, if sufficient, the petition is transmitted to Inter-Country Adoption Board; (b) if petition is filed with Inter-Country Adoption Board, it shall conduct the matching of the applicant with an adoptive child; (c) after matchmaking, the child is personally fetched by the applicant for the trial custody which takes place in the foreign country where the adopter resides.

What Petition for Adoption may include

1. Prayer for change of name;2. Ratification of simulated birth;3. Declaration that the child is a foundling, abandoned, dependent or neglected child.Only petition for adoption

Annexes

Income tax returns, police clearance, character reference, family picture, birth certificate of the adopter are not required to be annexed in the petitionIncome tax returns, police clearance, character reference, family picture, birth certificate of the adopter are required to be annexed in the petition

Publication

Petition must be published at least once a week for 3 successive weeks in a newspaper of general circulation in the province or city where the court is situatedNo publication requirement

Supervised Trial Custody

Supervised trial custody period in the Philippines for at least 6 months (Court may reduce period or exempt parties from trial custody).Supervised trial custody in the country of adopter for at least 6 months and is mandatory before a decree of adoption is issued (expenses are borne by the adopter).

If unsuccessful, the Board shall look for another prospective applicant. Repatriation of the child is to be resorted only as a last resort; If successful, the Board shall transmit a written consent for the adoption to be executed by the DSWD, and the applicant then files a petition for adoption in his/her country.

Decree of Adoption

Issued by the Family Court having jurisdiction over the case.Issued by a foreign court

Penalties

Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this adoption laws shall automatically suffer suspension until the resolution of the caseSame

Grounds for rescission (PASA)1.Repeated physical violence and verbal maltreatment by the adopter despite having undergone counseling;2.Attempt on the life of the adoptee;3.Sexual assault or violence; or4.Abandonment or failure to comply with parental obligations (Sec.19).

Effects of Judgment of Rescission (PReVS-NC)1.Parental authority of biological parent or legal custody of DSWD will be restored;2.Reciprocal rights of adoptee and adopter will be extinguished;3.Vested rights acquired prior to judicial rescission shall be respected;4.Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission;5.Adoptee shall use the name stated in his original birth or foundling certificate;6.Civil registrar will reinstate his original birth or foundling certificate.

Application of the rule: The rule is applicable only when the hospitalization of the insane person is for the public welfare or for the welfare of said person, who in the judgment of the Director of Health, is insane, provided that the one who has charge of him is opposed to such confinement (Herrera. P. 462).

SECTION 1. VENUE. PETITION FOR COMMITMENTVenue: RTC of province where the person alleged to be insane is found.

Who files: Director of Health with the assistance of city or provincial prosecutor.

Insanity A condition of the mind which is so impaired in function or so deranged as to induce a deviation from normal conduct on the person so afflicted.

Requisites:1. Director of Health is of the opinion that the commitment of the person alleged to be insane is for public welfare or for the welfare of said person;2. Such person or the one having charge of him is opposed to his being taken to a hospital or asylum.SECTION 4. DISCHARGE OF INSANEDirector of Health may file this petition in the RTC which ordered the commitment, when he is of the opinion that the person is permanently or temporarily cured or may be released without danger.The Health Secretary cannot order release without the approval of the RTC. On the other hand, the RTC cannot order release without recommendation from the Health Secretary (Chin Ah Foo v. Concepcion, G.R. No. L-33281, March 31, 1930).Kinds of Writ of Habeas Corpus1.Preliminary citation If the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court issues the citation to the government officer having custody to show cause why the writ of habeas corpus should not issue.2.Peremptory writ If the cause of the detention appears to be patently illegal. Noncompliance with this is punishable.SECTION 1. TO WHAT HABEAS CORPUS EXTENDS1.Cases of illegal confinement or detention by which a person is deprived of his liberty; and2.Cases by which the rightful custody of the person is withheld from the person entitled thereto.

Writ of Habeas Corpus A writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

The function of the special proceeding of habeas corpus is to inquire into the legality of ones detention. In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioners detention from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has been satisfied (Bernarte v. Court of Appeals, G.R. No. 107741. October 18, 1996).

In Sombong v. Court of Appeals, et al. (G.R. No. 111876, January 31, 1996), the Court laid down the following requisites in petitions for habeas corpus involving minors:1.That the petitioner has the right of custody over the minor; 2.That the rightful custody of the minor is being withheld from the petitioner by the respondent; and 3.That it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.Pre-trial is mandatory (Sec.9).Effects of failure to appear at the pre-trial 1.If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner;2.If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex-parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented (Sec. 11).Failure to file the pre-trial brief or to comply with its required content shall have the same effect as failure to appear at the pre-trial (Sec. 10).

Writ of AmparoA remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.It covers extralegal killings and enforced disappearances or threats thereof (applicable in pending cases due to the remedial nature of the writ).Who may file (order of preference): By the aggrieved party or by any qualified person or entity in the following order:1.Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;2.Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or 3.Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. Interim reliefs available to petitioner (TIP)1.Temporary protection order The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.2.Inspection order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.3.Production order - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.Interim reliefs available to the respondent: Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order. A motion for inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

Writ of Habeas DataA remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party (Sec. 1).The writ in general is designed to safeguard individual freedom from abuse in the information age by means of an individual complaint presented in a constitutional court. Specifically, it protects the image, privacy, honor, information, self determination, and freedom of information of a person (The Philippine Supreme Courts Bulletin, Benchmark Online November 2007).

Grant of the writ vs. Grant of the privilege of the writ: The grant of the writ refers to the decision of the court to give due course to the petition, require respondents to file their return and set the petition for hearing. The grant of the privilege of the writ means that the petition is found meritorious, the prayers therein are granted and the petitioner is granted the relief sought.

Grounds for change of name (R-CHEN)1.Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2.Consequence of a change of status; e.g. legitimated child;3.Habitual and continuous use and has been known since childhood by a Filipino name, unaware of her alien parentage;4.A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; or5.Necessity to avoid confusion;

The family home shall be exempt from execution, forced sale or attachment except:1.For nonpayment of taxes;2.For debts incurred prior to the constitution of the family home;3.For debts secured by mortgages on the premises before or after such constitution; and4.For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building (Art. 155, NCC). Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared (Art. 384, NCC).Who may file a petition for appointment of administrator or trustee: 1.The spouse present;2.The heirs instituted in a will, who may present an authentic copy of the same;3.The relatives who would succeed by the law of intestacy;4.Those who have over the property of the absentee some right subordinated to the condition of his death (Art. 385, NCC).

SECTION 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION (BMD LAVLAA- NEC JVC)1.Births;2.Marriages;3.Deaths;4.Legal separations;5.Judgments of annulments of marriage;6.Judgments declaring marriages void from the beginning;7.Legitimations;8.Adoptions;9.Acknowledgments of natural children;10.Naturalization;11.Election, loss or recovery of citizenship;12.Civil interdiction;13.Judicial determination of filiation;14.Voluntary emancipation of a minor;15.Change of name.

Republic Act No. 9048 or the Clerical Error ActGeneral Rule: No entry in a civil register shall be changed or corrected without a judicial order.Exception: 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.

SECTION 1. ORDERS OR JUDGMENTS FROM WHICH APPEALS MAY BE TAKENAn interested person may appeal in special proceedings from such order or judgment rendered which: (ADASCO)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 the 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; and6.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.

Orders that are not appealable1.Order directing administrator to take action to recover amount due to the estate;2.Order made in administration proceedings relating to inclusion or exclusion of items of property in the inventory of executor or administrator;3.Order appointing special administrator.