file:spcpro_part1.htm

SPECIAL PROCEEDINGS

 

 

1.  INTRODUCTION

1.  Definition of
terms:

1. Special proceeding: A special proceeding is a
remedy by which a party seeks to establish a status, a right, or a particular
fact.1

2. Probate: Probate is a special proceeding to
establish the validity of a will. No will passes property unless it is probated
by a court. Probate is mandatory. It is in rem. Hence, the court is also
called a probate court. But a probate court also includes a court that presides
over probate proceedings which can generally refer to the settlement of the
estate of a deceased person with or without a will.

3. Reprobate: Reprobate is a special proceeding
to establish the validity of a will proved in a foreign country.

4. Legacy: A legacy is a bequest of personal property
in a will to a person called the legatee.2

5. Devise: A devise is a bequest of real property
in a will to a person called the devisee.3

6. Testate Estate: Testate estate refers
to an estate of a deceased person which is settled or to be settled with the
last will and testament of that deceased person called the testator.4

7. Intestate Estate: Intestate estate refers to
the estate of a deceased person without a will. The estate is settled by the
laws of intestacy provided in the Civil Code.

8. Executor: An executor is the person named in
the will who is entrusted to implement its provisions. But the executor needs
to be issued letters testamentary after the court determines his or her
qualifications. A female executor is called executrix.5

9. Administrator: An administrator is the person
entrusted with the care, custody and management of the estate of a deceased
person until the estate is partitioned and distributed to the heirs, legatees
and devisees, if any. A female administrator is called administratrix.6

9.1 The court issues letters
of administration to a person after s/he qualifies in the sound discretion
of the court.

9.2 It is possible that a will
can be probated without a testator or with a testator who is disqualified to
enter upon the trust. Hence, the court can issue letters of administration with
the will annexed.

10. Escheat: Escheat, a term of French or Norman
derivation meaning chance or accident, is the reversion of property to the
State when the title thereto fails from defect of an heir. It is the falling of
a decedent’s estate into the general property of the State.

11. Guardians: A guardianship is a trust relation
in which one person acts for another whom the law regards as incapable of
managing his own affairs. The person who acts is called the guardian and the
incompetent is called the ward.

12. Trustee: A trustee is a person appointed by a
court to carry out the provisions of a will, as provided in Rule 98. As
generally understood, a trust is the legal relationship between one person having
an equitable ownership in property and another person owning the legal title to
such property. The beneficiary of the trust is known as the cestui que trust
or the cestui que trustent (the plural form).

13. Fideicommissary substitution: Fideicommissary
substitution takes place where the testator designates a person as an heir
charging him to deliver to another the whole or part of the inheritance under
circumstances provided in Art. 863 of the Civil Code, formerly Art. 781 of the
Spanish Civil Code. In the civil-law jurisdiction, this is the nearest
equivalent of the concept of trust in the common-law jurisdiction.

14. Habeas corpus: The Latin term habeas
corpus which literally means ‘you have the body,’ is a high prerogative
writ, of ancient common-law origin, the great object of which is the
liberalization of those who may be imprisoned without sufficient cause.
Basically, it is a writ directed to the person detaining another, commanding
him to produce the body of the prisoner at a designated time and place, with
the day and cause of his capture and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall consider in that behalf.7

15. Adoption: Adoption is a juridical act which
creates between two persons a relationship similar to that which results from
legitimate paternity and filiation.8

16. Change of Name: Change of name is a judicial
proceeding in rem, requiring publication, and may be ordered by the
court if proper and reasonable cause exists to justify it.

17. Family Home: The Family Home is the dwelling
house where a husband and wife, or an unmarried head of a family resides, and
the land on which it is situated, which is now deemed constituted from the time
it is occupied as a family residence, and is exempt from execution, forced sale
or attachment except as provided by law and to the extent of the value allowed
by law.9

Note: Rule 106, which
provides for the judicial constitution of a Family Home, is already extinct
going by the Family Code which does not require a judicial constitution of the
Family Home.

18. Absentees: An absentee is a person whose
whereabouts and existence are not known in the sense of the law allowing a
subsequent marriage and for purposes of administration of the estate of the
absentee and of succession.

19. Civil Registry: The civil registry is the
public record where acts, events and judicial decrees concerning the civil
status of persons are entered.10

20. Multiple Appeals: Multiple appeals are
appeals in special proceedings, as first provided in the Interim Rules of
Court, where a number of appeals may be taken separately or simultaneously by
different parties for different purposes. A record on appeal is necessary in
order not to prejudice the proceedings that will have to continue and that may
have to stop or be suspended if the entire record of the proceedings is
elevated.

2. Rules That Govern
Special Proceedings

1. The 1997 Rules of Civil Procedure shall govern
the procedure to be observed in actions, civil or criminal, and special
proceedings.11

2. In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable,
applicable in special proceedings.12

2.1 Rules regarding the
preparation, filing and service of applications, motions and other papers, are
the same in civil actions and in special proceedings. Provisions regarding the
omnibus motion rule, subpoena, computation of time, motion for new
trial, discovery, and trial before commissioners also apply in special
proceedings. The procedure of appeal is generally the same in civil actions as
in special proceedings.13

2.2 The rule on demurrer to
evidence in civil cases, by virtue of which the defendant does not lose the
right to offer evidence in the event that his motion is denied, is applicable
in special proceedings.14

3. The Special
Proceedings Provided In The Rules Of Court

1. Settlement of estate of
deceased persons (Rules 73 to 90);

2. Escheat (Rule 91);

3. Guardianship and custody of
children (Rules 92-97);

4. Trustees (Rule 98);

5. Adoption (Rule 99);

6. Rescission and revocation
of adoption (Rule 100);

7. Hospitalization of insane
persons (Rule 101);

8. Habeas corpus (Rule
102);

9. Change of name (Rule 103);

10. Voluntary dissolution of
corporations (Rule 104) which under Presidential Decree No. 902-A, should be
filed with the Securities and Exchange Commission and governed by specific
rules;

11. Judicial approval of
voluntary recognition of minor natural children (Rule 105);

12. Constitution of the Family
Home (Rule 106), rendered inexistent by the Family Code which provides for an
automatic constitution of the family home;

13. Declaration of absence and
death (Rule 107); and

14. Cancellation or correction
of entries in the civil registry (Rule 108).

 D. Special
Proceedings Under Various Laws

1. Summary Proceedings under
the Family Code

2. Actions mentioned in the
Family Courts Act of 1997 (Rep. Act No. 8369)

2.1 Petitions on foster care
and temporary custody

2.2 Declaration of nullity of
marriage under Article 36, Family Code

2.3 Cases of domestic violence
against women and children (special provisional remedies and temporary custody
of children and support pendente lite)

3. Proceedings under the Child
and Youth Welfare Code (Pres. Decree No. 1083), the Child Abuse Act (Rep. Act
No. 7610) and the Child Employment Act (Rep. Act No. 7658)

3.1 Declaration of status as
abandoned, dependent or neglected children

3.2 Voluntary or involuntary
commitment of children

3.3 Suspension, termination,
or restoration of parental authority

4. Inter-country adoption
under Republic Act No. 8043

5.
Jurisdiction of Family Courts

The newly constituted Family Courts shall have
exclusive original jurisdiction over the following cases:

1.
Criminal cases where one or more of the accused is below eighteen (18) years of
age but not less than nine (9) years of age, or where one or more of the
victims is a minor at the time of the commission of the offense; Provided, that
if the minor is found guilty, the court shall promulgate the sentence and
ascertain any civil liability which the accused may have incurred. The
sentence, however, shall be suspended without need of application pursuant to
Presidential Decree No. 603, otherwise known as the ‘Child and Youth Welfare
Code;’

2.
Petitions for guardianship, custody of children, habeas corpus in
relation to the latter;

3.
Petitions for adoption of children and the revocation thereof;

4.
Complaints for annulment of marriage, declaration of nullity of marriage and
those relating to marital status and property relations of husband and wife or
those living together under different status and agreements and petitions for
dissolution of conjugal partnership of gains;

5.
Petitions for support and/or acknowledgment;

6. Summary
judicial proceedings brought under the provisions of Executive Order No. 209,
otherwise known as the ‘Family Code of the Philippines;’

7.
Petitions for declaration of status of children as abandoned, dependent or
neglected children, petitions for voluntary or involuntary commitment of
children; the suspension, termination, or restoration of parental authority and
other cases cognizable under Presidential Decree No. 603, Executive Order No.
56, (Series of 1986), and other related laws;

8.
Petitions for the constitution of the family home (Note: This is no longer
necessary);

9. Cases
against minors cognizable under the Dangerous Drugs Act, as amended;

10.
Violations of Republic Act No. 7610, otherwise known as the ‘Special Protection
of Children Against Child Abuse, Exploitation and Discrimination Act,’ as
amended by Republic Act No. 7658; and

11. Cases
of domestic violence against:

11.1 Women
— which are acts of gender-based violence that result, or are likely to
result in physical, sexual or psychological harm or suffering to women; and
other forms of physical abuse such as battering or threats and coercion which
violate a woman’s personhood, integrity and freedom of movement; and

11.2
Children — which include the commission of all forms of abuse, neglect,
cruelty, exploitation, violence, and discrimination and all other conditions
prejudicial to their development.

If an act constitutes a criminal offense, the
accused or batterer shall be subject to criminal proceedings and the corresponding
penalties.

If any question involving any of the above
matters should arise as an incident to any case pending in the regular courts,
said incident shall be determined in that court.