Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Q: Suppose Mr. X, who died, was known to everyone to have one child but later
on, it was found out that he had other illegitimate children. What will happen to
the affidavit of self adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still
subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?
A: The word suggests already that it is an affidavitso, how do you formulate an
affidavit? You simply state in your affidavit that your father or your mother died;
and that he/she left the following properties; and that you are the only heir of your
parent; and that the estate are such and such, valued accordingly; and that they
are found there (location of property)..you simply submit that to the Register of
Deeds and the Register of Deeds will act on it only after you comply with the
requirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
Q: What is Residence?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited
in your book (it has to cited in your book) because that is a very leading case,
also the case of Fule, et al. vs. CA, these are the cases about venue and
jurisdictionemphasizes these cases cited in all books. Eusebio vs. Eusebio,
that is also cited in your book These are questions about the conflicting rules
on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of
venue. It is not a matter of jurisdiction.
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezin
City, parallel to Espaa or Quezon Blvd. He was a resident of Cebu but also had
a house in Qezon City because he was a member the Senate. When he died in
Quezon City, his residence was in Cebu. When he died, he was already a
widower at the time, so he had two families. The first family with his first wife,
and the second family with his second wife. His second wife, staying with him in
Quezon City, filed a petition for the settlement of his estate in the RTC (Then CFI)
of Q.C. After the 9- day novena for his demise, the heirs of Senator Cuenco, filed
a petition for settlement of his estate in Cebu. This reached the SC. The issue
was in fact wrong: Which court has jurisdiction? Mali. It is not a matter of
jurisdiction but only of venue. But the greater error here is not the error of the
petitioners but the error of the Court. Why? Because the Q.C. Court on its own
(motu propio) said we are going to give way to the court in Cebu to settle the
estate. That cannot be done because under the Rule, the court which first takes
cognizance of a petition for settlement of estate, takes it to the exclusion of all
other courts. And so, which court has jurisdiction? Both courts have jurisdiction
actually, but because of the Rule, since it was first filed with the Q.C. Court, it
was already taken cognizance of by said court in Q.C. to the exclusion of all
other courts, including the Cebu Court. That is why if ever the court cedes its
authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of
improper venue but there was none.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was
treated by the examiner saying that a motion to dismiss was filed with the Cebu
Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court did
not acquire jurisdiction because the petition was first filed in Q. C. and there can
be no dual jurisdiction here because the Rule says: the court acquires
jurisdiction to the exclusion of all other courts.
This case was followed by the case of Eusebio vs. Eusebio and finally settled in
the case of Fule vs. CA, a 1975 case. Philippine reports pa ito. If you want to
read it, you can find it in the Philippine Reports. But Fule, you find it already in
the SCRA. Is that clear? Take note of that doctrine because that is very basic in
Settlement of Estate. Sec. 1 of the Rule there does not speak of jurisdiction but
only of venue. In Fule it has been settled that the residence is the actual
place of habitation.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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So that if a person has two (well nagayon, hindi lang two, marami, apat, lima,
anim..tingnan nyo si Pacquiao, hindi na malaman kung saan sya resident,
Manila, Gensan.. hindi na malaman.. But if only Pacquiao studied law, he would
not have run for any position in the first place had he studied law, he would not
be a millionaire in the first place.) Fule settled that residence is the place of
actual habitation or it may not be the place of actual habitation, provided there is
animus manendi (intent to remain) and animus revertendi (intent to return). Kaya
pag yung isang lalaki, mayron legal na asawa, mayron pang kerida, mayron pang
kabit, at mayron ding scholar, in different houses, the residence is that of the
original. Why? Because there is animus manendi and animus revertendi. In all
other residences, there is only animus amare (intent to love) so that is
regarding this Section 1.
Let us go now regarding these two: It can be testate or intestate. You know
testate, in other words, there is a will. Intestate, there is no will. The distinction,
regarding these two will give you also the distinction between an executor and an
administrator.
Q: What is the distinction between an executor and an administrator?
A: The executor is the one appointed by the decedent as embodied in the will.
The administrator is the one appointed by the court if there in no will, or if there is
a will but does not designate an executor, or even if there is an executor, the
executor refuses to accept the trust or fails to put up a bond These are the
requirements: He is either not qualified; he fails to accept the trust; or he fails to
put up a bond so an administrator may be appointed.
Q: An administrator is of two kinds, what are they?
A: Rule 80
1. Special Administrator ( also of two kinds): With the will or Without a will
annexed;
2. Regular Administrator
Q: In what instances may the court appoint a special administrator?
A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.
Q: So, when you go to testate, why is it here that they are of two kinds: with the
will or without a will annexed? How would you explain that? Kailan nangyayari
ito? If you are a custodian of a will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule
75)
Q: Are you bound to file a petition?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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A: No. The obligation there is only to deliver the will. But if you do file a petition,
because you are the custodian of the will, you must have an interest in the
estate. You may either be the named administrator, a devisee, a legatee, or a
creditor, and with more reason, if you are an heir, you have an interest. If you are
in the custody of the will, and you filed a petition for settlement of estate, you
have to attach the will in your petition.. But if you are not in custody of the will and
you are interested in the settlement of the estate, you simply file a petition
without the will annexed.
In many instances, I was telling you that settlement of estate is the best example
of multiple appeals, diba? Because in the settlement of estate there are several
stages.
Q: If it is a testate proceeding, what is the first stage?
A: Probate of a will.
Under this lesson on a probate of a will, there is this general proposition that the
probate court (the court probating a will) either the MTC or the RTC, is a court of
limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of
limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its
intrinsic validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila
probate court yan so you cannot question, you cannot raise the issue of
ownership. The probate court ceases to be a probate court upon allowance or
disallowance of a will but it remains to be a court no longer of limited jurisdiction.
That is why I was emphasizing on the petition as settlement of estate and not as
a petition for the probate of a will. Why? Once a will has been probated, thats
the end of it? No. It is only the first stage in the testate proceedings. So when
the Rule says that the probate court is a court of limited jurisdiction, only as far as
the probate of a will is concerned. Pagkatapos nun, the court is no longer of
limited jurisdiction because it has to goappointment of the administrator or
executor, approval of the accounting, approval of the inventory, then payment of
debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due
execution, but you do not transfer courts after the will has been probated, after
the will has been allowed or disallowed which is a final resolution which is a final
order or resolution of the court which is appealable. But the appeal here is by
record on appeal because it is multiple appeal. The court now is no longer of
limited jurisdiction because it is no longer a probate court.
Q: Ano ba ang end of settlement of estate?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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the will allegedly forged by Mr. A was probated and allowed, the criminal case
should be dismissed because the probate of the court is final and if not appealed
becomes conclusive. Wala na yung forgery because the probate of a will only
avows the fact that the signature there is authentic; that there was due execution
of the will. The case against A for falsification should be dismissed. Suppose he
has been convicted, he shall be released. Supposing he is not released, your
remedy is to file a petition for habeas corpus because the basis .for restraining
his liberty no longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines,
what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the
Philippines and Administration of Estate thereunder.
Q: An American citizen residing in California died in California, his will was
probated in the county state of San Bernardino. That will has been allowed in the
U.S. Should that will be also allowed in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines
do because the deceased had property in the Philippines?
A: It should be re-probated here and the venue is in the proper court of any
province where the decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?
A:
1. The due execution of the will in accordance with the foreign law;
2. That the testator had his domicile in the foreign country and not in the
Philippines;
3. That the will has been admitted to probate in such country;
4. The fat that the foreign tribunal is a probate court;
5. That the laws of a foreign country on procedure and allowance of wills.
6. The fact of death (jurisdictional fact) of the testator in a place within
the territorial jurisdiction of the court.
These are mandatory requirements. These must all be established in the
Philippine courts. That is how to re-probate a will which has already been
allowed. Thereafter, the court should appoint an administrator. The foreign
allowance of a will leads to the appointment of a domiciliary administrator. Once
it is probated in the Philippines, the court appoints an ancillary administrator.
Q: Who may petition for the allowance of the will or who may oppose thereto?
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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A: Anybody who has an interest in the estate or in the disposition of the estate of
the decedent
Q: What are the qualifications for one to be appointed as administrator of the
estate?
A: Any competent person may serve as executor or administrator. He is
incompetent if:
1. 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. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.
Q: If a man cannot sleep without drinking at least 3 beers before he goes to
sleep, can he be appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may
the court appoint another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto nya kasi is he would accept the
trust if it is candy flavored);
2. fails to give a bond; and
3. is incompetent.
Q: In the course of the administratorship, when one has already be appointed,
can he be removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and
Removal of Executor or Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or when the court directs;
2. neglect to settle the estate according to the Rules;
3. neglect to perform an order or judgment of the court or a duty expressly
provided by these rule;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has
a claim against the estate, what happens to the regular administrator?
A: The regular administrator is not removed by the appointment of the special
administrator because the regular administrator has a claim under Sec. 8 of Rule
86. The special administrator only has a specific function which is only to work
on the claim of the regular administrator.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
A:
1.
2.
3.
4.
Q: Suppose they are not due yet, can they be filed against the estate?
A: Yes.
Q: Suppose they are not yet due?
A: Yeswhether due, not yet due, or contingent, you can file against the estate.
Q: When do you file it?
A: Not more than 12 months nor less than 6 months after the date of first
publication. Otherwise it is deemed waived. (STATUTE OF NON- CLAIMS)
STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before the CA?
A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition bet among the heirs were valid
3. Whether or not it is necessary for a partition to be approved by the probate
court
4. Whether or not the respondent could be held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.
Q. Can prospective heirs whether under the testate or intestate enter into a
partition over the properties belonging to the estate?
A. There can be no partition until and unless the will is allowed or probated.
Q. Was it really a partition?
A: According to the SC they may act to put an end in any indivision is considered
and deemed to be a partition.
There can be no partition in a testate proceeding before the will is allowed.
1.
2.
3.
4.
These are considered as contractual money claims under Rule 86. When you go
to Rule 87, you will note that you cannot file a claim against the estate if it is
claimable under Rule 86. So contractual money claims, hindi. That is why in
Rule 87, you are also limited to the following claims or actions:
1. Recovery of real or personal property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries
Q: In actions by and against executors and administrators, where will the
executor or administrator get his money to satisfy your prayer in your action?
Hindi ba from the estate? So why not against the estate, bakit against the
executor or administrator?
A: Rule 86 is not an action tapos na dyan yung action, it is already through. In
87, it is a separate and distinct action, so that if it is a complaint, you always file it
against the executor or administrator. Pero dito, tapos na yan. Hence, dahil
tapos na, it is urgent urgency of the subject matter so the presumption in 86,
that there must an estate proceeding, whether testate or intestate without that ,
you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate the testate
or intestate proceeding so that you file a claim. It is not an independent action
here.
But in 87, it is an independent action. Meron bang testate or intestate
proceeding? Not necessarily. You might say, bakit executor, administrator? Kaya
nga or because when you say executor, meron yan. Kung walang executor,
administrator. You mean to say that there can be no administrator without an
estate proceeding? No. There can be an administrator even if there is no estate
proceeding because you can even undertake extrajudicial settlement of the
estate. In extrajudicial settlement there can be an agreement by and between
the parties as to the administrator of the estate. The estate does not have a
separate and distinct personality. It is only an entity authorized by law in special
cases.
As a general rule, the estate cannot sue and be sued. It can only be sued in
certain instances. It cannot be sued because under Sec.1, Rule 3 (Who may be
parties), it is only an entity authorized by law. That is why you file against the
executor or administrator. Remember that an executor or administrator is a
natural person. Iba yun sa Guardian ha? A guardian can be a juridical person..
only guardianship over the property of the ward. In guardianship over the ward,
the guardian cannot be an artificial being or corporation.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule
87 (Mortgage due estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the
creditor. The creditors may have affirmative remedies as to their claims against
the decedent such as going after his estate. The estate is the debtor, the
mortgagor (mortgage due from the estate). As compared to Sec. 5, Rule 87, the
estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec
7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to
distribution. This is the last stage. But in the distribution of the estate, what Rule
should be followed? First, before distribution, there shall be payment of debts.
Q:
A:
1.
2.
3.
4.
5.
What are these debts? There are only 5 specific kinds of debts.
Debts of the decedent;
Funeral expenses;
Expenses for administration;
Allowance for the widow; and
Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the
corporation, even taxes give way to unpaid salaries and wages. But in all other
instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga Reviewers,
pag wala ka na daw maisasagot sa question sa taxation, taxation is the lifeblood
of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other
Encumbrances of the Property of the Deceased. The fundamental reason for
sales, mortgages, and other encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had
been paid amounted to P500T. How much is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and
under the will, A should receive P500T; B- P100T; C- P100T; D and E- P50T each
and what remains is only P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
Q: Suppose the asset was P10M gross value and the obligation was only P1M.
You have P900T left but the will says to distribute only P500T; P100T; P100T and
P50T to the last two, may sobra ka, (that goes to the pocket of the lawyer?) it
should be distributed in accordance with intestate succession but also pro rata.
A: Remember we are talking here of the remainder, wala nang babayaran. We
have also studied the Rules on contingent claims, under Sec. 4, Rule 74
( Liability of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?
A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the
distributee first gives a bond.
The remedy is to give a bond. If the asset to be distributed is quite important,
such as real property, then you give the asset.
RULE 92 GUARDIANSHIP
Madali lang itong guardianship. You know why? Because the Rules are
practically the same. The fundamental difference is that in guardianship, the
subject is still alive. In settlement of estate, the subject matter is already dead.
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MENDOZA and SARAH JANE CASAUAY
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The guardian now enters into the guardianship after he has filed the necessary
bond. The duties and responsibilities of a guardian are similar to that of an
executor or administrator .
Q: Can he sell the properties of his ward?
A: Yes. Even without permission from the court if the property involved is
personal property. But, if it is real property, just like, an executor or administrator,
he has to get permission from the court. Only with the permission of the court
will the sale of real property be considered a valid sale. It is not only permission
of the court which is required, but also notice to all interested parties. In
guardianship, the absence of notice, even with permission of the court, still
renders the sale void.
Q: In what instances may guardianship be terminated?
A: Death also terminates guardianship, but the general rule is that if the ground
for the appointment of the guardian ceases, then guardianship ceases as well.. If
the minor is already of age (remember, even the minor himself can ask for
guardianship). This is an exception regarding lack of a minors legal personality
to sue. If the ground is based on incompetency and it is established that the
ward is already competent, or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship may be filed.
Q: Should the legal guardian file guardianship proceedings over the person and
property of their minor children?
A: Yes if the property of the war, which is their own children, is worth more than
P50T. If they sell the property of their ward, even if they are the legal guardians,
the sale of the property is void.
Q: Distinction between a guardian and a trustee
A: The distinction between a guardian and a trustee is that the latter has the
legal title while the guardian has no legal title of the property. So that the trustee
can negotiate and encumber the property under trust. Although the same trustee
may either be a trustee and a beneficiary at the same time.
A trust relationship can either be express if there is a trust agreement between
parties or implied if it is by operation of law. Examples of trust by operation of law
is when parents die without a will and then some children are still minors,
whoever is the guardian of the minor holds the property for and in behalf of the
minors in trust. So that you will note that the guardian here, being the trustee,
may not be a party to a written trust agreement but he cannot dispose the minor's
property without consent of the court for the reason that he is only in trust for the
ces qui trust. Even in the absence of a written contract, there is a trust
relationship by operation of law.
ADOPTION
Background of adoption: The rule on adoption has been amended several times
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
and even the rules on procedure, which you find in 99 and 100 are no longer
applicable. They have been repealed expressly. As early as the mid-70s when
the Child and Youth Welfare Code (PD 603) was enacted, it already amended the
rules on adoption. PD 603 was also amended by the Family Code. But all these
are no longer applicable in toto because of the new laws on adoption which
should be the subject matter of today's section. The laws applicable now is not
even the Civil Code per se, but rather it should be RA 8562, the Domestic
Adoption Law of 1998 and the Inter Country Adoption Law of 1995 (RA 8043).
These are the substantive law governing adoption. Our concern is the rule on
adoption.
AM 02-6-02SC, dated July 2002, is the new rule on Adoption.
Q: Who may be adopted only?
A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?
A: Those who are voluntarily committed and/or involuntarily committed.
The parents or guardians of these persons have voluntarily surrendered their
parental or guardianship authority to the DSWD.
Q: Who are those involuntarily committed?
A: Judicially or administratively deprived. Minors, whose parents or guardians
are administratively or judicially deprived of their authority over these persons.
They are involuntarily committed. And within that concept, you have the
abandoned, the dependents, and neglected children.
Q: What is a child-placement agency as distinguished from a child-caring
agency?
A: The distinction is in the services that they cater. Pag placement, it is to provide
comprehensive child welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive parents, and
preparing the adoption home study while pag caring, it is like Hospicio de San
Jose, which provides 24 hour residential care services for abandoned, orphaned,
neglected or voluntarily committed therein.
Q: Which court has jurisdiction over a petition for adoption?
A: It is the Family Court. RTC is not even a totally and perfectly correct answer
because it may be another RTC.
Q: What is the venue?
A: The place where the adoptive parents reside.
NOTE: Here, the meaning of residence is the actual habituation of the petitioner.
We are only going to study 2 fundamental questions on adoption. Who may be
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MENDOZA and SARAH JANE CASAUAY
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adopted and who may adopt. Once you perfect that we can go to another lesson.
Q: Who may adopt? Or who is a qualified prospective adopter?
A:
1. Any Filipino Citizen
2. Any alien
3. Guardian, with respect to the ward. And remember, there is no qualification as
to the citizenship of the guardian. The only qualification is that the
guardianship must have ended AND his accountability as a guardian has
been completed. Yun lang ang qualification.
Q: Now let's go to the Filipino, what are the qualifications?
A:
1.of legal age;
2.he must possess 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 or children;
6.financially capable or economically capable;
7.at least 16 years older than the adoptee.
NOTE: When one is of legal age, a minor cannot adopt. Because he must be
capable of unquestionable demonstration. Under the Rules on Evidence, the
court can either take judicial notice of that because he is capable of
unquestionable demonstration.
Q: What does possession of full civil capacity and legal rights mean?
A: Give me a person who is not possessed of full civil capacity and legal right. A
convicted person which has received an additional penalty of civil interdiction.
Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity?
A: Under the rules, a deaf-mute who is not able to read and write is not in
possession of full civil capacity, thus it is incapable of contracting obligations.
Q: A person caught urinating, and charged of urinating in public. Is this not moral
turpitude?
A: Urinating or defecating in public is an offense and not a crime. The
requirement speaks of one who has not been convicted of a crime, which is
punishable by the Revised Penal Code.
Q: But if you are charged of Rape, can you not adopt?
A: No. Because it speaks of conviction. You must first be convicted.
But if you are convicted of homicide, recent jurisprudence say, you can still adopt
because it is not a crime of moral turpitude. So tatlo, there must be a crime,
there must be conviction, and it must be of moral turpitude.
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4. his country of origin must allow the adoptee to become a citizen of his
country;
5. that his country of origin allows the adoptee to enter the country of origin of
the adopter;
Q: Where should he file this petition for adoption? (Section 28)
A:
1. It 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.
When an alien files a petition before the Inter-Country Adoption Board, the alien
will come here in the Philippines and will bring the adoptee and the social worker
back to his country of origin for the trial custody of 6 months will happen there.
This is purposely done by the law, because there is an objective of
discouragement. To discourage the adoption of Filipino citizens by aliens. In fact
that is only allowed if the prospective adoptee cannot be adopted by a Filipino.
Filipinos have the preference of adopting.
Q: What constitutes the allegations?
A:
1. Jurisdictional facts;
2. legal capacity of the prospective adopter and the adoptee;
In the case of Republic v. Hernandez (1997), the SC said that the petition for
adoption does not carry with it the change of name of the adoptee. With the
present rules on adoption specifically under Section 10, this doctrine does not
apply anymore. This is a good bar question. So you can now have joinder of
causes of action in special proceedings, in effect. Dati wala. So you can now join
in your prayer, asking for a change of name and for adoption. Let me emphasize,
it is a change of name and not a change of surname because change of surname
is an automatic effect of adoption.
Q: After you have filed a petition for adoption, what happens now?
A: There would be a case study, where it is immediately assigned to a social
worker. Under present dispensation in our jurisdiction, every family courts is now
provided with a social worker. Because a petition for adoption is exclusively
cognizable by the Family Courts.
adoptee and the case study report is about the prospective adopter.
The general objective of adoption, why it is allowed under the rules, is that which
leads to the benefit of the adoptee.
Under the rules, it is mandatory that the petitioner must appear and testify.
Similar to an annulment of marriage case, there can be no stipulation of facts
here or confessions of judgment. There must be actual presentation of evidence
here. And basic requirement here is the consent given by the adoptee, the
parents or the guardians of the adoptee.
Q: After the hearing, may the court render judgment now?
A: The judgment referred to here is not similar to the judgment that we have
ordinarily because the judgment here is always subject to the issuance of
another decree of adoption. Ang finality dito is not the finality of the judgment but
rather the finality of the decree of adoption.
Q: When is the decree of adoption issued?
A: After complying with the 6 month trial custody. Again, this is another
undertaking of the DSWD. Tignan niyo, the home or case study report is before
the decision is rendered, but before a decree of adoption is rendered kailangan
pa ng isa pang report which is the trial custody report.
Q: For how long?
A: General Rule: 6 months.
Exception: when it is in the best interest of the child; the petition during the
hearing is that the prospective adoptee is already living with the adopter.
Q: After the decree of adoption has become final and executory, what is the
next?
A: There should be a new birth certificate issued. Remember that one of the
rights of a party in litigation is the right to a speedy and public trial. But this
adoption proceeding is exceptional because even the documents there are public
records but are not open to the public, not anybody can get it including the new
birth certificate issued to the adopter.
NOTE: But take note that under the rule on rescission of adoption, the issued
certificate of the civil registrar's office is cancelled in favor of the old birth
certificate, which means that the old birth certificate is not deleted, but remains in
the record. And this is the reason of the confidential nature of the proceedings.
Q: What is adoption?
A: It is a judicial proceeding whereby the relationship of paternity and filiation is
established. AS simple as that.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
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HABEAS CORPUS
Q: What is the constitutional provision about habeas corpus?
A: The privilege of the writ of habeas corpus shall not be suspended except in
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cases of invasion or when public safety requires it. It is not the writ which is
suspended but the privilege.
Q: What is a writ of habeas corpus?
A: It is an order or judicial process directed to the person to show cause for the
reason of detention.
Q: By that definition, it is directed in two conditions, which are:
A:
1. illegal detention or confinement;
2. illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or
confinement or illegal withholding of custody from a person entitled thereto.
Q: What is an example of the first instance?
A: Violation of the constitution, whereby a person is deprived or restrained of his
liberty or not afforded a right to due process, or an order from an authority which
has no jurisdiction.
Q: What is an example of the second instance?
A: Malimit itong mangyari within the family, where the mother or father fights over
for the custody of the child.
Q: If a woman leaves the parental home in order to stay with her paramour, can
the parents file a petition for a writ of habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But
when a child comes of age, the writ of habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing a person with imprisonment
of 6 years 1 month and 1 day, and then the convict has already stayed for more
than that period of time, is the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you
can also file certiorari but it is no longer immediate here. Because what do you
intend to annul there? wala.
Q: What is a preliminary citation as compared to the writ of habeas corpus or the
peremptory writ?
A: Preliminary citation is a citation to the government officer having the person in
his custody to show cause why the writ of habeas corpus should not issue
(detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently
illegal and the non-compliance wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the
issuance of the preliminary citation and go directly to the issuance of the writ of
habeas corpus.
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Q: Name is Maria Cecilia when in her birth certificate it shows as Ma. Cecilia, is
that typographical or clerical error?
A: There is no error there. What you have to seek is change of name because
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