Notes in Special Proceedings

Lope E. Feble
Former Dean, Mlqu School of Law
The following notes are intended for exclusive use of MLQU bar candidates. All Rights reserved.

Kinds of Spec. Proceedings

1. Settlement of Estate R73-90 2. Escheat R91 3. Guardianship R92-97 4. Trustees R98 5. Adoption and Custody of Minors R99-100 [superseded by Adm. 02-6-02, Effective Aug. 22, 2002, pursuant to RA 8043 (Inter-Country Adop.) and RA 8552 (Domestic Adop.) 6. Change of Name R103 7. Absentees R107

KINDS OF SPEC. PRO.

8. Cancellation and Correction of Entries R108, with RA 9048 (Clerical & Typographical Error Law) 9. Habeas Corpus R102 10. Writ of Amparo AM No. 07-9-12 11. Writ of Habeas Data AM No. 08-1-16 (Remedy: Rule 109 Appeals in Special Proceedings) OTHERS: 1. Those actions under the Family Code 2. Those related to Arbitration

Settlement of Estates

2 ways: 1] Extra-judicial a] Summary, or b] SelfAdjudication by Sole Heir 2] Judicial either: a] Testate proceedings; or b] Intestate proceedings. Jurisdiction in Jud. Settlement Proceedings based on the gross value of the estate Venue deceased last resided or location of the property.

Summary settlement R74(EJS)

Rule: No will, No debts, or debts fully liquidated, heirs are all of legal age, or if minor duly represented: 1] execute a deed of extra-judicial settlement of estate (public doc.), or affidavit of self-adjudication; VOID AS TO HEIRS WHO HAVE NOT PARTICIPATED. 2) a Project of Partition in an action for Partition (R69). Filed with the Registry of Deeds with the Bond for personal property, and publication (3x). Note that the settlement is subject to claims within the 2 year period [annotated of the cert.of title]

Judicial Summary of Estate of Small Value

Where the value of estate does not exceed P10k the estate can be adjudicated summarily by the court but: Publication must be made (3x); Hearing 1 mo. but not more than 3 mos. from last publication; Notice to interested persons; Bond where personal property is involved.

Testate or Intestate Proceedings Gen. Principles

Proceedings in rem. Writ of Execution is not generally a remedy but contempt. Court exercises limited juris., but include, all incidents to settlement of estate, such as: 1. provisional determination of ownership [for inventory purposes], subject to separate action; 2. determination of ownership if all heirs submit the issue to the court so long as no rights of third parties are prejudiced; 3. question of advances or collation;

Gen. principles continued

In jud. settlement proceedings therefore the court has the power to resolve the following: 1. heirs entitled to the estate; 2. recognition of an illegitimate child; 3. validity of disinheritance; 4. issue of whether a person is a spouse of the deceased; 5. validity of a waiver of rights to inheritance; 6. whether a property is conjugal or exclusive; 7. other incidental matters for the closure of settlement proceedings.

Probate Proceedings

NATURE in rem, mandatory, and imprescriptible [as the right to inherit does not prescribe]. No estoppel. WHO MAY COMMENCE PROBATE? Any person interested in the estate of the testator, i.e. heir, devisee, legatee, executor named in the will, creditor. PERSONS ENTITLED TO NOTICE Same as above (but as to heirs, only compulsory heirs). Must be served 20 days if by mail, or 10 days if personal service, prior the scheduled hearing.

PROBATE

CONTENTS OF THE PETITION 1. jurisdictional facts; 2. names, ages and residences of heirs, legatees and devisees; 3. value and character of the property of the estate; 4. name of the person for whom letters are prayed for; 5. if will not yet delivered to court, person in custody thereof.

PROBATE

GROUNDS FOR DISALLOWANCE OF A WILL

[court can determine only the extrinsic validity of a will, except when the intrinsic defect would render the will ineffective]:

1. not executed and attested as required by law; 2. mental incapacity of the testator rendering him incapable to make a will at the time of executed; 3. duress, fear or threat; 4. undue and improper pressure and influence on the part of the beneficiary, or other person for his benefit. 5. signature of the testator procured by fraud or trick and not intended for a will

EFFECTS OF PROBATE

Once a will is probated, its allowance is conclusive as to its due execution. It settles the extrinsic validity or formalities required of a will, subject only to appeal. Note, however, that intrinsic validity may be inquired by the court as when the intrinsic defect will render a probate proceedings a useless exercise, the defect being apparent on the face of the will.

RULE ON REPROBATE

Reprobate is a probate of a foreign will duly probated in a foreign country. For purposes of reprobate a petition must be filed in the Philippines. In such proceeding it must be prove: 1. testator is domiciled in a foreign country 2. the will was probated in that country by a court of competent jurisdiction 3. law on probate of that country and proof of compliance thereof 4. legal requirements in that country for execution of the will. NOTE: the doctrine of processual presumption applies in reprobate.

EFFECTS OF REPROBATE

There are 3 effects pursuant to Rule 77 1. the will is treated as originally probated in the Phils. 2. letters testamentary or administration with a will annexed will cover the estate in the Phils. 3. after liquidation, residue of estate found in the Phils. disposed of in accordance with law.

EXECUTORS/ADMINISTRATOR S; APPOINTMENT

DISQUALIFICATIONS: 1. Minor; 2. non-resident of the Phils.; 3. those who in the opinion of the court are unfit to execute the duties of the trust due to drunkenness, improvidence, lack of understanding or integrity, or having been convicted of an offense involving moral turpitude .

ADMINISTRATOR

Appointment of administrator is made when:

1. decedent died without a will 2. the executor has been disqualified for being incompetent, or refuse the trust, or fails to give a bond. Rule: The surviving spouse, next of kin or their nominee are preferred for purposes of letters administration in their successive order, provided they apply (note: 30 days rule). In default of such application, any creditor or even strangers may be appointed by the court.

OPPOSITION TO LETTERS TESTAMENTARY OR ADMIN.

RULE: Any person interested in a will may file his opposition on any valid grounds. A full dressed hearing shall be made for purposes of issuance of letters testamentary or administration. In the opposition to letters testamentary, interested person may simultaneously apply for letters administration.

POWERS OF EX. OR ADM.

General Powers: 1. Administration as to assets of the estate, i.e. Inventory, accounting, possession and repairs of the properties, invest, mortgage, dispose. 2. Liquidation payment of all debts within the period allowed; and 3. Distribution as to the residue of the estate to whoever is entitled thereto.

PROHIBITION/RESTRICTION ON THE POWERS OF EXE. OR ADM.

The rule is that any disposition of assets of the estate w/o court approval is VOID. 1. cannot acquire even by intermediaries, even by public sale, property under adm. 2. cannot borrow money w/o court approval. 3. cannot lease prop. exceeding 1 yr. 4. cannot continue business of deceased without court authority. 5. cannot profit by the increase or decrease of property under adm.

Rule: Sp. Administrator is denied the power to liquidate, except when he acts as general administrator where the executor presented a claim vs. the estate. His appointment is not subject to appeal but by certiorari under R65 (s.1). He is appointed where: 1. there is delay in the appointment of ex. or adm., including appeal from such appointment 2. the executor or adm. has a claim vs. the estate.

SPECIAL ADMINISTRATOR (R80)

GROUNDS FOR REMOVAL OF EX. OR ADM.

1. failure to render accounts (w/in 1yr from appointment or as may be required by the court); 2. neglect to settle the estate under the rules; 3. neglect to comply order or judgment or duty imposed by the rules; 4. when he absconds; 5. insanity; 6. incapability; 7. unsuitability to discharge the trust.

CLAIMS AGAINST THE ESTATE

All claims against the estate must be filed within the period fixed in the notice issued by the court, which shall not be more than 12 mos. nor less than 6 mos. AFTER THE DATE OF FIRST PUBLICATION. This is the Statute of Non- Claims; otherwise, such claim is barred forever, SUBJECT to the following EXCEPTIONS: 1. Belated claims filed w/in 1 mo. from the order allowing it. 2. As counterclaim in action filed by ex. or adm for:.

CLAIMS VS. ESTATE

1. money claims, arising from contract, express or implied (whether due, not due, or contingent); 2. claims for funeral expenses; 3. expenses for last sickness of the decedent; 4. money judgment against the decedent. However, a claim not barred by statute of non claims may nevertheless be barred by prescription.

Note also that the claims under this rule does not cover those claims which survives the death of the decedent (real actions, those involving rights, interests, possession or ownership of real property).

CLAIMS VS. ESTATE/RULES IN PAYMENT OF DEBTS

Where the exe. or adm. files a claim, he should give notice in writing to the court. If estate is sufficient, all debts paid within the period provided for such purpose; If will provides spec. property to pay debts payment according to the provisions of the will; Property stipulated to pay insuff. or no stipulation is made, debt paid by personal prop. not disposed of and real prop. not disposed of. If heirs, devisees, legatees entered possession of the estate before liquidation, they will pay the debts based on their contributive shares.

PAYMENT OF DEBTS

RULE WHERE ESTATE IS INSUFFUCIENT 1. The provisions of the Civil Code on preference of credits apply. 2. Creditors can run against persons holding property of the deceased he fraudulently conveyed during his lifetime where ex. or adm. refuse to file action, by seeking leave of leave of court to file such action with a bond. The action shall be in the name of the exe. or adm. However, if the action

itself is vs. exe. or adm. leave of court and bond not required.

ACTIONS THAT MAY BE BROUGHT DIRECTLY VS. EXE. OR ADMIN.

1. Recovery of real or personal property or any interest therein from the estate: 2. Enforcement of a lien thereon; or 3. Action to recover damages from any injury to a person or property, real or personal. Therefore, actions personal to them not allowed. If the action is to recover property fraudulently conveyed by the deceased, there must be motion presented and an order to appear for examination be issued by the court against the transferee of the property.

DISTRIBUTION

The process of delivering the residue of the estate to all those declared entitled to receive in accordance with the provisions of the will. Project of Partition- agreement executed by the heirs which could be the basis of distribution of the estate. If the estate has been adjudicated pro indiviso heirs can avail of partition under Rule 69.

REMEDY IN CASE WHERE AN HEIR HAVE NOT RECEIVED HIS SHARE

1. REOPENING OF PROCEEDINGS before finality of closure order of the proc. if he was excluded (not a party) in the proceedings ; 2. MOTION TO DELIVER HIS SHARE if not excluded but failed to receive his share; 3. REOPENING if proceedings already closed within the prescriptive period (10 years). 4. ACTION FOR RECISSION/ANNULMENT OF JUDICIAL PARTITION on the ground of lesion (he received value less by at least of what he is entitled( Art. 1098 NCC); action prescribes in 4 years from date of partition (Art. 1100 NCC);

REMEDY CONTINUED

5. REINVINDICATORY ACTION AGAINST

CO-HEIRS BASED ON CONSTRUCTIVE OR IMPLIED TRUST DUE TO FRAUD (prescribes

in 10 years; Lagujum v. Viola), or within 4 years from discovery of fraud if the heir adversely held the property such as obtaining a title and if title is registered from date of registration (Gerona v. De Guzman). IF NO ADVERSE POSSESSION,
ACTION IS IMPRESCRIPTIBLE (Villamor vs. CA).

WRIT OF EXECUTION; WHEN ISSUED BY SETTLEMENT COURT

1. to enforce the contribution of distributive shares vs. heirs, devisees, legatees who held the property of the estate before payment of debts; 2. to enforce payment of expenses of partition vs. party not paying the sum assessed; and 3. satisfy the costs as to persons cited for examination in probate proceedings. (THE GENERAL RULE IS THAT CONTEMPT IS

THE GENERAL REMEDY AVAILABLE EXCEPT IN THE ABOVE 3 INSTANCES)

ESCHEAT (Rule 91)

NATURE AND PURPOSE:

Proceeding (in rem) to forfeit the property of a deceased person in the Phils. who died without a will and without an heir or any interested person to the estate, or property acquired in violation of the Const. or law (reversion). It is in reality an exercise of police power of the State. Commenced by SOLGEN whether respondent is dead or alive. Jurisdiction - RTC (publication 6x) Venue where the deceased last resided or where he has estate, if not resident.

Escheated Property Where Allocated/ Remedies

To the local Govt unit where the real property is located; personal property LGU where deceased last resided unless he is non-resident, for the benefit of public schools, charitable inst. or centers. Within 5 years, a claim may be filed in the same court by persons entitled to the estate (recovery of property or the proceeds thereof if sold, less cost of administration).

GUARDIANSHIP (AM 03-02-05, as to minors)

KINDS OF GUARDIANS: 1. Legal; 2. Judicial; or 3. Guardian ad litem It may either be general or over the ward or property only. JURISDICTION 1. If minor, Family Court (RA 8369) 2. Not minor-governed by Rules 92-97 (incompetents under R92, s.2), RTC 3. Guardian ad litem, where the case is pending. VENUE where minor or incompetent resides. BOND required

Rule on Publication or Notice in Guardianship Proceedings

Unlike in other spec. proc. only personal notice is required in guardianship proc. to persons named in the petition who are residents in the Phils. and the incompetent himself who may be required to appear in court if he is 14 years or over. However, if the incompetent is non-resident, publication is required. Guardianship may also be ancillary that is one granted in another country after an original guardianship has been granted.

GUARDIANSHIP OVER MINORS

WHO CAN FILE PETITION: 1. A relative; 2. Other person in behalf of the minor; 3. Minor himself, if 14 years or over; 4. DSWD (abandoned child) or DOH, if insane needing hospitalization GROUNDS: 1. Death, continued absence or incapacity of parents; 2. Suspension or deprivation of parental authority; 3. Remarriage of surviving parent found unsuitable to exercise parental authority. 4. When best interest of the minor requires it.

PERSONS WHO MAY BE APPOINTED GUARDIAN OF MINOR

(in default of their parents in the ff. order ) 1. grandparent (if several), court decides for the best interest of the child; 2. Oldest brother or sister over 21, unless unfit or disqualified; 3. Actual custodian, over 21, unless unfit or disq.; 4. Any person as may determined by the court best interest of the child rule.

POWERS OF GUARDIAN

1. care and custody of the ward, and management of his estate [frugally), or the latter only, and apply the proceeds to the maintenance of the ward; 2. pay debts of the ward; 3. collect debts owing the ward and appear in actions for the ward; 4. render verified inventory of the assets w/in 3 mos. from appointment, and upon application of interested persons; 5. render an accounting of property after a year from appointment and as may be required thereafter.

CONDITIONS OF BOND

1. to make return of true and complete inventory of assets w/in 3 mos. known to him or possessed by him or other person; 2. faithfully execute the duties of his trust; 3. render true and just acct. of all the asset of the ward, and all proceeds or interest therefrom; 4. settle his account after termination of guardianship, and deliver the assets in his hands to person entitled thereto. 5. those that may be ordered by the court.

REMOVAL OF GUARDIANS

GROUNDS: 1. insanity; 2. incapability to discharge the trust; 3. unsuitability; 4. wastage or mismanagement of property of the ward; 5. failure to render an account (30 days after it is due); 6. failure to make a return (same period).

TERMINATION OF GUARDIANSHIP

Guardianship may be terminated: 1. motu proprio by the court; or 2. upon verified motion by those allowed to petition for guardianship a) if the ward has come of age; b) death of ward; c) marriage or voluntary emancipation of ward (conditional); d) when ward regains competency.

IMPORTANT RULE

A GUARDIANSHIP COURT IS NOT IMPOWERED TO DETERMINE CLAIMS AGAINST THE WARD. ANY ACTION FOR SUCH PURPOSE MUST BE INITIATED IN A SEPARATE ACTION (WITH THE GUARDIAN IMPLEADED THEREON). JUDGMENT VS. THE WARD THEREAFTER RENDERED CAN BE PRESENTED TO THE GUARDIAN FOR SETTLEMENT. SO ALSO, QUESTIONS AS TO OWNERSHIP OF PROPERTY UNDER ADMINISTRATION BY THE GUARDIAN MUST BE THRESHED OUT IN A SEPARATE ACTION, THE GUARDIANSHIP PROCEEDINGS BEING SOLELY FOR THE CARE AND CUSTODY AND PROPER ADMINISTRATION OF THE WARDS PROPERTY.

TRUSTEE (R98)

JURISDICTION RTC VENUE : Jud. Trust where will allowed or where property affected is located. BOND required Trustee not obligated to pay the debts of the trustor or beneficiary. The trustee holds legal title over the prop. Beneficiary, holds equitable title. In CONSTRUCTIVE TRUST, there is neither a promise nor fiduciary relation to speak of and the so-called trustee neither accepts any trust nor intends holding the property for the beneficiary. The relation of trustee and cestui que trust does not in fact exist, and the holding of a constructive trust is for the trustee himself, and therefore, at all times adverse. Prescription may supervene even if the trustee does not repudiate the relationship [mercado v. espinocilla].

1. to make a return containing true inventory of the estate; 2. to manage and dispose of the estate, and faithfully discharge his trust according to law or will of the testator; 3. to render under oath, once a year true account of the property held in trust, and such other accounts as ordered by the court; and 4. settle his acct. upon termination of trust.

CONDITIONS OF BOND (TRUSTEE

RESIGNATION/REMOVAL OF TRUSTEE

If trustee resigns, it can be allowed if it appears to the court that it is proper. In case of removal, a petition must be filed by parties with beneficial interest in the trust, with notice to the trustee and with hearing. His removal may either on any of the ff: 1. essential to the interest of petitioner; 2. insanity; 3. Incapability to discharge the trust; 4. unsuitability.

ADOPTION- Rule 99-100 (Superseded by

AM 02-6-02 Effective 8/22/02])

Adoption is now governed by RA 8552 (Domestic Adoption) and RA 8043 (Inter-Country Adoption) Jurisdiction/Venue DA, Family Court where adopter resides; ICA ICAB or FC where adoptee resides, which will turn over the petition to ICAB. In ICA, only child declared legally available for adoption can be adopted. No publication required. DA, non-minors may be adopted; publication required. Standard required best interest of the minor rule

CONSOLIDATION OF PETITIONS RULE

Under the present law (DAA) three petitions can be consolidated: ADOPTION, CHANGE OF NAME (Rule 103) AND CANCELLATION OR CORRECTION OF ENTRIES (Rule 108), provided that all the jurisdictional requirements imposed are complied with (ADM. M. 02-6-02SC EFFECTIVE AUG. 22, 2002). Note: the Local Civil Registrar must be impleaded for purposes of Change of Name and Cancellation and Correction of Entries.

RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSPODY OF MINORS

Under AM No. 03-04-04 judgment (effective May 15, 2003): a petition for custody of Minors shall be governed by the following rules: 5 days to file answer; Default applicable; Pre-Trial and Pre-Trial Brief mandatory; Provisional Order Awarding Custody can be issued; Judgment immediately executory. No appeal allowed unless MR or NT Motion preceded the appeal. 15 days to perfect and appeal.

CHANGE OF NAME

Rule 103 Judicial; RA 9048 Administrative RA 9048 covers first name, nickname or clerical or typographical errors only 103 substantial Both have similar grounds for availment HOWEVER, Republic v. Hon. Hernadez laid down the ff. grds. for 103: 1] name is ridiculous, dishonorable or extremely difficult to write or pronounce; 2] change results as a legal consequence of legitimation or adoption; 3] change will avoid confusion; 4] name has been continuously and one has been known since childhood by a Filipino name and is unaware of alien parentage; 5] change is based on sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; 6] surname causes embarrassment and the desired change not for fraudulent purpose and w/o causing prejudice to the public.

PRIMARY JURISDICTION RULE

RA 9048 now governs change of first name. It vests the power and authority to entertain petitions to city or municipal local civil registrars or consul general. The intent of the law is to exclude from the coverage of Rules 103 and 108 change of first name, until and unless an

administrative petition for change of name is first filed and denied (SILVERIO VS.
REPUBLIC).

ABSENTEE

Only for purposes of administration over the properties of the absentee. NOTE: absentee proceedings may involve appointment of TRUSTEE [S4, R107] EFFECT OF DEATH OF ABSENTEE

cancellation/correction of entries

NOTE: Republic v. Valencia Lee v. CA Republic v. Kho

HABEAS CORPUS

2 subjects: A. Any form of illegal restraints/detention; B. Determination of rightful custody in relation to AM 03-04-04 NOTE: 1. Preliminary citation; 2. Peremptory writ; 3. Discharge or disallowance or writ

AMPARO/HABEAS DATA

NOTE: AMPARO involve violation or threat of violation of the right to life, liberty or security, and covers extralegal killings and enforced disappearances. H. DATA involve violation or threat of violation of the RIGHT to PRIVACY in life, liberty or security in both, appeal is 5 days direct to SC. H.DATA SC, CA, SB has jurisdiction only if when action concerns public data.

Controlling Jurisprudence

The writ of habeas data provides a judicial remedy to protect a persons right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.

There is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings [Rodriguez vs. Macapagal-Arroyo].

AMPARO/H.DATA

The writ of amparo, particularly, should not issue when applied for as substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes. The writ will not also be issued to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparoin line with the extraordinary character of the writ and the reasonable certainty that its issuance demandsrequires that every petition for the issuance of the writ must be supported by justifying allegations of fact. [Tapuz vs. Del Rosario, 554 SCRA 768(2008)]. It cannot be based on speculations.

AMPARO/H.DATA

The writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful - employment constitutes a property right under the context of the due process clause of the Constitution [Manila Electric Company vs. Lim, 632 SCRA 195(2010)]

SPECIAL PROCEEDINGS

MCQS

The rule is that the estate shall not be distributed prior to the payment of all charges to estate. What will justify advance distribution as an exception?
The specific property sought to be distributed might suffer in value. b. The creditors and distributees agree to the advance distribution. c. When the majority of the charges against the estate have been paid. d. The estate has sufficient residual assets and the distributees file sufficient bond.
a.

Barry was appointed as the administrator of the estate of Billy. The heirs of Billy sought the removal of Barry due to his alleged adverse interest to that of the estate. The court subsequently issued an order of removal. What is the remedy of Barry?
a.
b. c. d.

Petition for certiorari under Rule 65 Petition for review on certiorari Appeal Motion for reconsideration

Who among the following has no standing to file a petition for writ of habeas data?
a. b.

c.
d.

The second cousin of the aggrieved party The mother-in-law of the aggrieved party The grandparents of the aggrieved party The spouse of the aggrieved party

Mojo was appointed administrator of the estate of Jojo. The heirs of Jojo entered into a project of partition and pursuant thereto, Mojo was obligated to deliver the distributive shares of the said heirs. However, Mojo failed to do the same. What is the remedy of the heirs?
a. b. c. d.

Move for execution under Rule 39 Move for the revocation of the project of partition File an action for contempt under Rule 71 on the ground of disobedience to a lawful order of the court Move for the removal of the appointed administrator

Badong filed a petition for writ of amparo against Badang in relation to his daughter Bedings involuntary disappearance. Badong alleged that Badang was Bedings employer, who, days before Beding disappeared, threatened to get rid of her at all costs. On that she took steps to ascertain Bedings whereabouts. What is the quantum of evidence required to establish the parties respective claims?
a.

b.
c. d.

Substantial evidence for Badong; preponderance of evidence for Badang Clear and convincing for both Substantial evidence for both Preponderance of evidence for Badong; clear and convincing evidence for Badang

The following are not duties of a guardian condition upon his bond, except:
a.

b.

c.

d.

Teach the ward to become a responsible member of society. Provide for the proper care, custody, and education of the ward. Ensure the wise and profitable investment of the wards money. Collect compensation for his services.

Which court issues the decree of adoption in inter-country adoption?

a. b.

c.

d.

The RTC where the adoptee resides The foreign court of the country of the prospective adoptive parents The RTC where the properties of the adoptee are located The RTC where the adopter resides

M was appointed as administrator of the estate of Y. During the prescribed period of filing claims against the estate, Z filed his claim. Despite the objections of the heirs of Y, M did not contest the claim. What is the remedy of the heirs?
a.

b.

c. d.

There is no other remedy, only M as the administrator can object to the claim of Z. They should move for the removal of M before they can submit their own contest. They can force M to file a contest. They should submit their own contest to the claim of Z.

Matin filed a petition for appointment as regular administrator of his fathers estate. Tinmar, his sister, moved for dismissal of said petition contending that the parties, who are members, of the same family, have not exerted earnest effort toward a compromise prior to the filing of the petition. Should the motion be granted.
a.
b. c. d.

No, an earnest effort toward a compromise is not required. Yes, such earnest effort toward a compromise is required before filing any case relating to family matters. No, such earnest effort toward a compromise is not required in special proceedings. Yes, the ground relied upon is jurisdictional.

The personal estate of Agaton was declared escheated on May 24, 2012. To whom will these personal properties be assigned?
a. b.

c. d.

The city or municipality where the properties of X are located The city or municipality as the judge may choose as recommended by the Solicitor General The city or municipality where X last resided The city or municipality of the known heirs of X

May be subject to Inter-Country Adoption?

a.
b.

c. d.

Any Filipino citizen and of legal age Any Filipino citizen, whether a minor or of legal age Only a Filipino citizen and a minor Only a Filipino citizen who must be a minor and a legally-free child

Tope is a creditor Timon. Tio filed a guardianship proceedings for the person and property of Timon. What is the remedy of Tope to enforce his money claim against Timon?
a. b. c. d.

File a claim before the guardianship court. File an ordinary case against the ward in a court of general jurisdiction. File a counterclaim in the guardianship proceeding. File an ordinary case against the guardian in a court of general jurisdiction.

Which of the following claims survive the death of the decedent and need not to presented as a claim against the estate?
a.

b.
c. d.

Claims for damages arising from quasi-delict Funeral expenses Contingent money claims arising from a contract Unenforced money judgment against the decedent, with death occurring before levy on execution of the property

Blossom died intestate and Bubbles was appointed as administrator. Thereafter, a will was discovered in Blossoms belongings. Which of the following is not correct?
a.

b.

c.

d.

Testate proceedings take precedence over intestate proceedings. It will be revoked once the new will has been admitted to probate. The letters of administration shall be revoked automatically. The will must be probated first.

In escheat proceedings, how many years is the prescriptive period within which the heirs of the subject property may file their respective claims?
a. b. c.

d.

5 years from the delivery of the property to the municipality 5 years from the delivery of the order of escheat to the heir 5 years from the entry of order or decision of escheat 3 years from the receipt of the order of escheat by the heirs

In the writ of amparo, interim relief are available to the parties. Which of the four interim reliefs is available not only to the petitioner but also to the respondent?
a.
b. c. d.

Temporary Restraining Order Witness Protection Order Production Order Permanent Protection Order

How should a criminal action and a petition for writ of amparo, both arising the same facts, be treated?
a. b.

c.

d.

The action filed later shall be dismissed. The petition for the writ of amparo shall take precedence and the criminal action filed thereafter shall suspended. An amparo petition is criminal in nature. When the criminal action is filed after the amparo petition, the latter shall be consolidated with the first.

A writ of habeas corpus was issued by the RTC of Manila against GA. During the trial, it was proven that there was indeed unlawful detention. JC, the person unlawfully detained now asks for damages before the same court. Is the action for damages valid?
a. b. c. d.

No, because there can be no damages claimed in habeas corpus cases. Yes, because it is within the jurisdiction of the court which issued the writ. No, because the court issuing the writ is a court of limited jurisdiction. Yes, because the court issuing the writ is the proper court to determine the issue on recovery of damages.

Mario, a 10-year old minor was adopted by the spouses Luigi and Maria. For repeated physical abuse and attempts on his life, Mario decided to have decree of adoption rescinded. Where should he file his petition for rescind the decree of adoption?
a.
b. c.

d.

The same court which issued the decree of adoption. The court where the adopter resides. The court where the properties of the adoptee are located. The court where the adoptee resides.

Arnel filed a petition for a writ of amparo but was denied relief. She now question the denial of the petition for review on certiorari under Rule 45 before the Supreme Court claiming that the lower court failed to appreciate the facts of her case. Which of the following statement is correct?
a. b. c. d.

The supreme court cannot take cognizance of the appeal as Rule 45 is limited to questions of law. The proper remedy is to file petition for certiorari before the Supreme Court under Rule 65. There is no appeal allowed under the Rule on the writ of Amparo. All of the above.

After filing the petition for the settlement of the estate of his parents, Hughes also filed an action for reconveyance of title to a parcel of land against his brother Godfrey. According to Hughes, Godfrey forged the signature of their late parents to make it appear that they sold the land to his when in fact they did not, thus prejudice Hughes legitime. Godfrey moved to dismiss the action on the ground that the dispute must be resolved in the estate proceedings. Should the motion be granted?
a. b. c. d.

Yes, questions of collation should be resolved in the settlement proceedings, not in a separate civil case. Yes, otherwise there shall be a waste of time and clogging of court dockets. No, the court in estate proceedings cannot decide the issue of ownership of title. No, the filing of the separate action is proper, but the estate proceeding must be suspended meantime.

Makabayan was appointed as the administrator of Julians estate. Aside from his properties in the Philippines, Julian has a number of real properties located in the United States. Makabayan wishes to exercise his powers of administrator over the properties in the US. Can makabayan exercise such powers?
a. b.

c. d.

No, Makabayan is a Filipino and can only exercise such powers in the Philippines. No, beacause an administrator can only exercise his powers over the assets of a decedent found within the state or country where the letters of administration were granted. No, because the administrator can exercise his powers over properties only. No, because the administrator can only exercise his powers of real properties of the deedent.

In a habeas data processing, Mando, the respondent, wished to clarify some facts alleged in the petition on the ground that the same are vague. Which of the ff. is not correct? a. He must file a motion to dismiss b. He must file a motion for bill of particulars. c. Only a. d. Both a and b.

X was born in Manila. In 2008, he migrated to Cebu City and decided to reside therein permanently. He wanted to correct some clerical errors in his birth certificate. Where should X file his petition.
a. Clerk of the Sharia district court b. Registrar General c. Petition-receiving civil registrar d. Consul General

Tanting file a petition for the writ of habeas corpus against her husband Toning in order to have custody of their minor daughter Teling. Tanting, however, failed to personally appear at the pre-trial. Which of the ff. is correct?
a. 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. b. The case shall not be dismissed since the best interest of the child is at stake. c. The case shall be dismissed for lack of interest of the petitioner. d. The case shall not be dismissed but the respondent may present his evidence ex-parte provided he files an answer.

Mabantot Ramirez is frequently insulted by his classmate because of his first name. Tired of the humiliation he always experience, he decided to approach Atty. Juan to get the latters advice. If you are Atty. Juan, what legal advice can you give to Mr. Ramirez?
a. b.

c.
d.

File a petition with the RTC File a petition under Rule 108 File a petition with the city civil registrar None of the above

Atari borrowed money from Aris in 1998 as evidenced by a contract of loan. Atari died in 2009. In the settlement of Ataris estate, the court ordered that all claims against the estate must be filed from May 2009 to November 2009. Aris filed his claim on June 2009. can Aris recover from the estate?
a. b. c.

d.

Yes the claim was filed well within the statute of non-claims. No, because money claims should be against the administrator. No, because the period to collect has already prescribed. Yes, money claims should be recovered against the estate and within the statute of non-claims.

MCQ

On June 1, 2010, Mr. A died after a long struggle with cancer. He was born in 1923, in Cebu City. He moved to Manila when he was 20 years old. By the time he was 50 years old, he had become a wealthy man, and had houses in Manila, Cebu, Davao, and Caticlan. He retired in 2000 in Davao. He would often visit his other spouses. When he died, he was childless, and had no other living relative, all of whom had predeceased him. The government is seeking to file a petition for escheat. Where should it be filed, assuming he is a citizen and resident. a. His residence at the time of his death. b. Any of the places where his properties are located. c. Any of the places where he resides. d. The place where he last resided.

"A" wants to file a petition for guardianship

over "B" who is an incompetent. He lives in Davao, but his guardian lives in General Santos. B is the legal owner of properties in Cebu and Tacloban. Where should it be filed? a. His residence b. The residence of the guardian. c. The place where any of his properties is located. d. Anywhere in the Philippines.

Helen was born in Muntinlupa City. Upon reaching the majority age, she decided that she now wants to change her first name from Helen to "Helena", which is the name she has been using since birth and in school. Where should Helen, a resident of Makati, file her petition? a. RTC-QC b. RTC-Muntinlupa City c. LCR-QC d. LCR-Muntinlupa City.[doctrine of primary jurisdiction].

a.

b.

c. d.

Juan, a resident of Bulacan, died on Jan. 1, 2011 in Manila. On Feb. 1, 2011, his will was delivered by Simeon, the custodian, to the clerk of court of RTC-Bulacan. On Feb. 4, 2011, Mario instituted inestate proceedings over Juans estate with RTC-Manila. On Feb. 5, 2011, Romeo filed a petition for probate of Juans will with RTC-Bulacan. Mario moved to dismiss the petition in RTC-Bulacan since he filed a petition earlier in RTC-Manila. Which court should settle the estate and why? RTC-Manila. The petition filed by Mario was ahead of Romeos petition. RTC-Bulacan. Mario already submitted to the jurisdiction of the court when he filed a motion to dismiss the petition. ETC-Manila. Juan died in Manila. RTC-Bulacan. Jurisdiction of RTC-Bulacan already vested upon the delivery of the will of Simeon.

Which of the ff. is NOT a special proceeding? a. A petition for recognition and enforcement of a foreign arbitral award under the Special ADR Rules. b. A petition for the issuance of a Writ of Habeas Corpus c. A petition for the Issuance of a writ of Kalikasan d. A petition for declaration of nullity of marriage.

Which of the ff. is appealable? a. An order directing administrator to take action to recover amount due to estate b. An order granting the petition for Writ of Habeas Corpus c. An order directing the inclusion of items in the inventory d. An order appointing a special administrator

Does a plaintiff in a case for damages arising from quasi-delict against defendant who died during the pendency of said case, have the right to intervene in the special proceedings for the settlement of the estate of said deceased defendant? a. Yes, because such plaintiff is a "person interested in the estate" b. Yes, because such plaintiff is like a creator with money claim who is allowed to take part in the estate proceedings by filing a notice of claim. c. No, because he fails to meet the requirements in that the interest is merely contingent or inchoate. d. No, because he has to wait until after he has secured a favorable judgment at which time he can file a notice of claim in the estate proceedings

Which of the ff. CANNOT be ventilated in the probate court or in a special proceeding instituted for the purpose but should be adjudicated in an ordinary civil action: a. Determination of who the heirs are b. Resolving the filiation of illegitimate children of the deceased. c. Adjudication of claims for damages arising from tort committed by the deceased while alive d. Recovery of ownership and possession of estate property

An absentee, aged 50 years at time of his disappearance, shall not be presumed dead for the purpose of opening his succession till after lapse of: a. Five years if he disappeared after the age of seventy-five years. b. Ten years. c. Five years if he has been in danger of death under certain circumstances ad his existence has not been known. d. Two years, if he has been in danger of death under certain circumstances ad his existence has not been known.

Which of these is NOT a judgment in rem? a. Probate will b. Annulment of marriage c. Adoption d. Judgment in ejectment cases

On January 24, 2010 Sandra Mison was reported abducted in Sta. Mesa, Manila by unidentified men. Knowing that she was involved with human rights group, her mother immediately filed a petition for Writ of Ampro in the RTC of Manila on suspicion that the abductors are members of the military intelligence known as ISAFP who were always casing their residence in Diliman, Quezon City. The petition shall be: a) Dismissed for being an improper remedy; b) Dismissed for being speculative, the ground relied upon being based on mere suspicion; c) Granted and the writ issued requiring ISAFP to file a return; d) Dismissed, the proper remedy being Writ of Habeas Corpus.

In his desire to rid Pasay City of beggars, drug dependents and vagrants the City Mayor ordered them rounded up and brought to the city auditorium where they were feed, clothed and lectured about their problems. They were also asked whether they wish to stay in the citys welfare home, the Bahay Kanlungan, to take up formal education to which they all agreed. One year later, the parents of Jose and Samson, both minors, who were doing good at the Bahay Kanlungan surfaced and filed a petition for habeas corpus for their release claiming that they were illegally detained thereat. Which of the following is correct?
a) The petition is proper, Jose and Samson being minors whose custody must be exercised by their parents; b) The petition should be dismissed there being no illegal detention and the act of the city mayor was an exercise of police power; c) The petition should be dismissed, one year had elapsed therefore the right of action has prescribed; d) The petition should be denied, the custody taken by the city government is to secure the safety and welfare of the children whose parents has grossly neglected their children.

Renato was absent for two years and his whereabouts unknown. His wife, Rosa, and three children failed to locate him despite efforts exerted for six months. In the meantime, the businesses he left continue to suffer losses in the hands of his wife who, out of sadness and anger started to attend parties and dating any man who caught her eyes. If you are among the creditors of Renato, what appropriate action would you take? File a petition for declaration of absence of Renato in the RTC; File a petition for guardianship over the property of Renato; File a petition for receivership over the property of Renato; File a petition for absence of Renato with appointment of trustee in the RTC.

Jake was born with Filipino parents. His birth certificate, however, show that his nationality was Chinese, although his three brothers are all registered as Filipinos. Which of the following proceedings would allow correction of his nationality from Chinese to Filipino? Petition for correction of entries under Rule 108; Administrative proceedings for correction of his birth certificate under the clerical or typographical error law (RA 9048); Naturalization proceedings; Petition for amendment of birth certificate.

Marissa, a widow, and her two (2) children, both girls, aged 9 and 12 years old, reside in Olongapo City. To survive, she worked as prostitute in a brothel at night, leaving her children alone at night. Realizing the danger to life and morals of her granddaughters, Fernando, filed a petition for habeas corpus in the Family Court of Olongapo city, who after summary hearing issued the writ. However, prior to the issuance of the writ, Marissa brought her children to Samar. Which of the following is correct?

The writ cannot be enforced because the petition was filed by the grandfather who has no legal personality; The writ can be enforced because being a grandfather he has the legal standing to protect the life and morals of his grandchildren; The writ was improperly issued because as a mother, Marissa is vested by law with the right to custody to the exclusion of Fernando, the nature of her being immaterial as it was for their survival; The writ issued by the Family Court of Olongapo city cannot be enforced in Samar as it is only enforceable within the judicial region of such court.

Ariel filed a petition for declaration of nullity of marriage against Marian under Article 36 of the Family Code, claiming that Marians continued dating with several men while they are married remain unstoppable and may bring children to their marriage sired by unknown men. This clearly manifest that Marian is suffering from serious and incurable psychological incapacity. Since they have three (3) minor children. Ariel likewise prayed that custody pendent lite and permanent custody be granted to him. Which of the following is correct? The matter of custody is a special proceeding which must be initiated separately. The issue of custody of children is deemed automatically submitted in a petition for declaration of nullity of marriage under the Family Cod. The prayer of such provisional and permanent custody is not governed by the rules of special proceedings but by ordinary civil actio. Unless otherwise disqualified to take custody, the prayer of Ariel for custody whether provisional or permanent is subordinated with the right of Marian and therefore it must await the outcome of the petition.