Spec Pro Class 2020

SECTION 1     Appointment of representatives

• ​When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Regional Trial Court (of First Instance) of the place where the absentee resided before his disappearance, for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

 

SECTION 2   Declaration of  absence; who may petition

• ​After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following:​

(a) The spouse present;

(b) The heirs instituted in a will, who may present an authentic copy of the same;

(c) The relatives who would succeed by the law of intestacy; and

(d) Those who have over the property of the absentee some right subordinated to the condition of his death.

 

​SECTION 3.  Contents of Petition​ The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following:

​(a)  The jurisdictional facts;

(b)  The names, ages, and residences of the heirs instituted in the will, copy of  which shall be presented, and of the relatives who would succeed by the law of intestacy;

(c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee;

(d) The probable value, location and character of the property belonging to the absentee.

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SECTION. 4. Time of hearing; notice and publication thereof.
 

    When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator is filed, the court shall fix a date and
place for the hearing thereof where all concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10)
days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best.

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SECTIONS 5-8

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SECTION 5. OPPOSITION

 

    Anyone appearing to contest the petition shall state in writing his grounds therefore, and serve a copy thereof on the petitioner and other interested parties on or before the date designated by the hearing.

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SECTION 6. žPROOF OF HEARING; ORDER

 

    At hearing, the compliance with the provisions of section 4 of this rule must first be shown, upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interest of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.

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    In case of declaration of absence, the shall not take effect until six (6) months after its publications in a newspaper of general circulation designated by the court and in the

Official Gazzette.

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SECTION 7. WHO MAY BE APPOINTED

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    In the appointment of the representative, the spouse present shall be preferred when there is no legal separation, if the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court.

 

   In case of declaration of absence, the trustee or administrator of the absentees property shall be appointed in accordance with the preceding paragraph.

 

 

SECTION 8. TERMINATION OF ADMINISTRATION

 

      The trusteeship or administration of the property of the absence shall cease upon order of the court in any of the following cases:

   (a) When the absentee appears personally or by means of an agent;

   (b)  When the death of the absentee is proved and his testate or intestate heirs appear;

   (c ) When a third person appears, showing by a proper document that he has acquired

         the absentees property by purchase or by title.

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     In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be place at the disposal of those who may have the right thereto.

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SUMMARY:

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Who may petition

   1. interested party

         - preferred (Sec. 7)

              (a) spouse present

              (b) competent person

   2. relative

   3. friend

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Purpose

    To represent him provisionally in all that may be necessary

 

General rule:

    No independent action for declaration of presumption of death – presumption may arise

and be invoked in an action or special proceeding

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Exception

    Under Art. 41 of Family Code, for purpose of present spouse contracting a second

marriage, must file summary proceeding for declaration of presumptive death of the absentee, without prejudice to the latter’s reappearance.

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   This is intended to protect present spouse from criminal prosecution for bigamy under

Art. 349 of RPC.

 

   With judicial declaration that missing spouse is presumptively dead, good faith of present spouse in contracting marriage is established.

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Period of absence of spouse before subsequent marriage

•  4 consecutive years – well founded belief that absent spouse already dead

•  2 years – danger of death

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   In declaration of absence petition SHOULD be file  After two years from his disappearance and without any news from the absentee or of the last news about the absentee. After five years, if he left an administrator of his property.

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