Professional Documents
Culture Documents
CONTENTS IN THE PETITION FOR PROBATE [Rule DUTY OF THE CUSTODIAN OF THE WILL [Rule 75,
76, Sec. 2] Sec. 2]
1) Jurisdictional facts: Death of the testator and • To deliver the will within 20 days after he
his residence at the time of death or the place knows of the death of the testator to the court
where the estate was left by the decedent who having jurisdiction or to the executor named in
is a non-resident. the will.
2) Names/ages/residences of the heirs, legatees,
and devisees. DUTY OF THE EXECUTOR NAMED IN THE WILL
3) Probable value and character of the estate [Rule 75, Sec. 3]
property. 1) It is his duty to present the will within 20 days
4) Name of the person for whom the letters are after (a) he knows of the death of the testator
prayed. or (b) after he knows that he is named the
5) Name of the person having custody of the will if executor to the court having jurisdiction, unless
it has not been delivered to the court. the will has reached the court in any other
• But no defect shall render void the manner.
allowance of the will, or the issuance of 2) Signify to the court in writing his acceptance of
letters testamentary or of administration the trust or his refusal to accept it.
with the will annexed.
FAILURE TO FULFILL ABOVE DUTIES
PROCEDURE AFTER WILL IS DELIVERED TO, OR • Without a satisfactory excuse, they shall be
WHEN A PETITION FOR ALLOWANCE OF A WILL IS fined a sum not exceeding P2K. [Rule 75, Sec.
FILED IN, THE COURT: 4]
1) The court shall fix a time and place for proving • If he retains the will and does not deliver it to
the will. the court, he may be committed to prison and
• Rationale: So that all concerned may kept there until he delivers the will. [Rule 75,
appear to contest the allowance thereof, if Sec. 5]
such is the case.
2) The court shall cause notice of such time and d. PROOF OF WILL
place to be published 3 weeks successively in a
newspaper of general circulation. This rule on • In the hearing for the probate of a will, the
newspaper publication does not apply if the compliance of publication and notice must first
probate of the will has been filed by the be shown before introduction of testimony in
testator himself. support of the will. [Rule 76, Sec. 5]
persons who are inhabitants of another issue to such of them as are competent, accept
country. and give bond, and they may perform the
duties and discharge the trust required by the
g. LETTERS TESTAMENTARY/ will. [Rule 78, Sec. 5]
ADMINISTRATION
ORDER OF PREFERENCE IN GRANTING LETTERS OF
ADMINISTRATION
QUALIFICATIONS 1) Surviving spouse or next of kin.
• NEXT OF KIN – Those persons who are
PERSONS WHO MAY BE entitled under the statute of distribution to
EXECUTORS/ADMINISTRATORS the decedent’s property.
1) EXECUTOR – The person named in the will to 2) Any one or more of the principal creditors.
administer the decedent’s estate and carry out 3) Stranger.
the provisions thereof.
2) ADMINISTRATOR (regular or special) – The • Rationale: The underlying assumption is that
person appointed by the court to administer the those who will reap the benefits of a
estate where the decedent died intestate. wise/speedy/economical administration of the
• An administrator may also be one estate or those who will most suffer the
appointed by the court in cases when, consequences of
although there is a will, the will does not waste/improvidence/mismanagement, have the
appoint any executor, or if appointed, said higher interest and most influential motive to
person is either incapacitated or unwilling administer the estate correctly.
to serve as such. • Letters of administration may be granted to
3) A corporation/association authorized to conduct any person or any other applicant even if there
the business of a trust company in the are other competent persons with a better right
Philippines may be appointed as an executor, to the administration, if such persons fail to
administrator, guardian of an estate, or appear when notified and claim the letters to
trustee, in like manner as an individual; but it themselves. [Rule 79, Sec. 6]
shall not be appointed guardian of the person • If a petition for letters of administration is filed,
of a ward. [Art. 1060, CC] such court shall fix a time and place for hearing
4) The marriage of a single woman also shall not the petition and shall cause notice thereof to be
affect her authority to serve under a previous given to the known heirs and creditors of the
appointment. [Rule 78, Sec. 3] decedent, and other persons believed to have
an interest in the estate. [Rule 79, Sec. 3]
PERSONS WHO ARE INCOMPETENT TO SERVE AS
EXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1 OPPOSITION TO ISSUANCE
and 2]
1) A minor.
OPPOSITION OF THE ISSUANCE OF LETTERS
2) A non-resident. TESTAMENTARY [Rule 79, Sec. 1]
3) One who, in the opinion of the court, is unfit to
• Any interested person in the will.
exercise the duties of the trust by reason of: • He should state the grounds in writing why he
a) Drunkenness. is opposing and he may attach a petition for
b) Improvidence.
letters of administration.
c) Want of understanding/integrity.
d) Conviction of an offense involving moral
CONTENTS OF A PETITION [Rule 79, Sec. 2]
turpitude.
1) Jurisdictional facts.
4) The executor of an executor cannot administer
2) Names/ages/residences of heirs and creditors.
the estate of the first testator. 3) Probable value and character of the estate.
4) Name of the person for whom the letters are
Executor Administrator prayed for.
Nominated by the Appointed by the court if
testator and appointed the testator did not • But no defect in the petition shall render void
by the court appoint, of if the
the issuance of letters of administration
appointee is
incapacitated or refused
Duty to present the will No such duty GROUNDS FOR OPPOSING [Rule 79, Sec. 4]
to court 1) in Letters Testamentary:
Testator may provide Administrator must • Incompetence.
that executor may serve always give a bond 2) in Letters of Administration:
without bond (but the • Incompetence.
court may direct him to • Preferential right under Rule 78, Sec. 6.
give bond to pay debts)
Compensation may be Compensation is to be
provided for by the governed by Rule 85,
SPECIAL ADMINISTRATORS
testator in the will; Sec. 7
otherwise, Rule 85, Sec. • Court EEs should not be appointed special
7 shall apply administrators as their objectivity and
impartiality may be compromised by
extraneous considerations.[Medina v. CA]
SEVERAL CO-EXECUTORS NAMED IN THE WILL BUT • The order of preference in the appointment of
NOT ALL CAN ACT regular administrators does not apply to the
• If all of the named co-executors cannot act appointment of a special administrator, but
because of incompetency, refusal to accept the such order of preference may be followed by
trust, or failure to give bond, on the part of one the judge in the exercise of sound discretion.
or more of them, letters testamentary may [Matias v. Gonzales]
• Similarly, the grounds for the removal of the 2) Preserve the same.
regular administrator do not apply strictly to 3) Commence and maintain suit for the estate.
the special administrator as he may be 4) Sell only: (1) perishable property; and (2)
removed by the court on other grounds in its property ordered by the court.
discretion. [Junquera v. Borromeo] 5) Pay debts only as may be ordered by the court.
• The order appointing a special administrator is 6) Make a true inventory and appraisal of all
an interlocutory and is not appealable. [Garcia real/personal property of decedent within 3
v. Flores] months after his appointment (except clothes
of family, marriage bed, and other articles for
WHEN APPOINTED subsistence of family).
1) Delay in granting of letters including appeal in 7) To render true an just account of his
the probate of the will. [Rule 80, Sec. 1] administration within 1 year of appointment.
2) Executor is a claimant of the estate he 8) To perform all orders by the court.
represents. [Rule 86, Sec. 8] 9) Give allowance to legitimate surviving spouse
• In this case, the administrator shall have or children of the decedent if the court decrees
the same powers as that of a general such (grandchildren are not entitled).
administrator. 10) Deliver property he received to person
appointed as executor or administrator or to
Regular administrator Special administrator such other person as may be authorized by the
Appointment may be the Appointment is an court.
subject of appeal interlocutory order and
may not be the subject of RESTRICTIONS ON THE POWER OF AN
an appeal ADMINISTRATOR/EXECUTOR
One of the obligations is He cannot pay the estate's 1) Cannot acquire by purchase, even at public or
to pay the estate's debts debts judicial auction, either in person or mediation
Appointed if decedent Appointed if there is delay of another, the property under administration.
died intestate or did not in granting letters
appoint an testamentary or letters of
2) Cannot borrow money without authority of the
administrator, or if the administration, or if the court.
appointee refused or is executor is a claimant of 3) Cannot peculate with funds under
not qualified the estate he represents administration.
4) Cannot lease the property under administration
for more than 1 year.
DUTIES AND GENERAL POWERS OF 5) Cannot continue the business of the deceased
unless authorized by the court.
ADMINISTRATORS AND SPECIAL 6) Cannot profit by the increase/decrease in the
ADMINISTRATORS value of the property under administration.
is not accountable for properties which never shall be revoked and the administrator shall
came to his possession. [Rule 85, Sec. 1] surrender the letters of administration to the
• However, he would still be liable for properties court and render his account of administration.
which never came to his possession if through • It is within the court’s discretion on WON the
unfaithfulness to the trust or his own fault or intestate proceeding should be discontinued
lack of necessary action, the and a new proceeding should be constituted.
executor/administrator failed to recover part of • The discovery of a will does not ipso facto
the estate which came to his knowledge. nullify the administration unless the will has
• Generally, the executor/administrator is not been proved and allowed. [De Parreño v
liable for debts due the estate which are not Aranzanso]
yet paid; unless it remained uncollected • Acts of the administrator done before his
because of his fault. [Rule 85, Sec. 1] removal/resignation/revocation are valid unless
• Income from realty when used by the proven otherwise. [Rule 82, Sec.3]
administrator/executor: The administrator shall
account for it as may be agreed upon by him GROUNDS FOR REMOVAL OF
and the parties interested, or adjusted by the EXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2]
court with their assent. If the parties do not 1) Neglect to render accounts (within 1 year when
agree upon the sum to be allowed, the same the court directs).
may be ascertained by the court whose 2) Neglect to settle estate according to the ROC.
determination shall be final. [Rule 85, Sec. 4] 3) Neglect to perform an order/judgment of the
• Neglects or delays to raise or pay money: The court or a duty expressly provided by the ROC.
administrator shall be liable therefore on his 4) Absconding.
bond. [Rule 85, Sec. 5] 5) Insanity or incapacity or unsuitability to
discharge the trust
EXPENSES OF ADMINISTRATION
• Expenses necessary for the management of the h. CLAIMS AGAINST THE
property, for protecting it against destruction
ESTATE
or deterioration, and possibly for the
production of fruits.
STATUTE OF NON-CLAIMS
COMPENSATION TO EXECUTOR/ADMINISTRATOR
[Rule 85, Sec. 7] • Definition: Period fixed by the ROC for the
• That provided by the will is controlling. filing of claims against the estate for
• However, if there is no compensation provided, examination and allowance. The Statute of
the compensation shall be either: Non-Claims applies only to claims that do not
1) P4/day for the time actually and necessarily survive.
employed;
2) Commission upon the value of so much of PERIOD FOR CLAIMS [Rule 86, Sec. 2]
the estate as comes into his possession and • General rule: Within the time fixed in the
finally disposed of by him; notice which shall not be more than 12 months
3) 2% of the first P5K, 1% in excess of P5K up nor less than 6 months after the date of the
to P30K, ½% in excess of P30K up to first publication. Otherwise, the claims are
P100K, and ¼% in excess of P100K. barred forever.
• For 2 or more executors/administrators: The • Even if the testator acknowledged the debt
compensation shall be apportioned among in his will and instructed the executor to
them by the court according to the services pay such debt, the Statute of Non-Claims
actually rendered by them respectively. must still be complied with.
• Charge of legal fees rendered by • Exception: BELATED CLAIMS – Claims
executor/administrator to the estate: Not not filed within the original period fixed by
allowed. the court. On application of a creditor who
has failed to file his claim within the time
RENDER OF ACCOUNT previously limited, at any time before an
• Within 1 year from receiving letters order of distribution is entered, the court
testamentary/letters of administration. [Rule may, for cause shown and on such terms
85, Sec. 8] as are equitable, allow such claim to be
• The court also may examine the filed not exceeding 1 month from the order
executor/administrator upon oath as to any allowing belated claims (the order may be
matter relating to the account rendered by him. in open court or not).
[Rule 85, Sec. 9] • The Statute of Non-Claims and the Statute
• Before the account is allowed, notice shall be of Limitations must concur in order for a
given to interested persons in order for them creditor to collect.
for examination. [Rule 85, Sec. 10] • A creditor barred by the Statute of Non-
Claims may file a claim as a counterclaim in
REVOCATION OF ADMINISTRATION; any suit that the executor or administrator
may bring against such creditor.
DEATH/RESIGNATION/REMOVAL OF
ADMINISTRATORS AND EXECUTORS CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5]
1) Money claims, debts incurred by the deceased
ROLE OF ADMINISTRATOR IF A WILL IS during his lifetime, arising from contract:
DISCOVERED a) Express or implied;
• If the letters of administration have been b) Due or not due;
granted because of the belief that the decedent c) Absolute or contingent.
had died intestate, and then a will is discovered 2) Claims for funeral expenses or for the last
and allowed by the court, the administration illness of the decedent.
3) Judgment for money against decedent. PROCESS FOR CLAIMS [Rule 86, Sec. 10]
• However, a creditor barred by the statute of 1) Deliver the claim with the necessary vouchers
non-claims may file a claim as a counterclaim to the clerk of court.
in any suit that the executor or administrator 2) Serve a copy thereof on the
may bring against such creditor. executor/administrator.
3) If the claim is due, it must be supported by
NOTICE REQUIREMENT IN CLAIMING AGAINST THE affidavit stating the amount due and the fact
ESTATE: that there has been no offsets.
1) The court, after granting letters 4) If the claim is not due or contingent, it must be
testamentary/letters of administration, may accompanied by an affidavit stating the
immediately issue notices to creditors to file particulars thereof.
their claims. 5) Executor must file his answer to the claim
2) This notice must be published for 3 successive within 15 days after service of a copy of the
weeks in a newspaper of general circulation claim.
and province, and post the same in 4 public • Answer should contain:
places in the province and 2 public places in • Either admit or deny the claim and set
the municipality where the decedent last forth the substance of the matters
resided. which are relied upon to support such
3) Within 10 days after the notice has been admission or denial.
published and posted in accordance with the • If the executor/administrator has no
preceding section, the executor/administrator knowledge sufficient to enable him to
shall file or cause to be filed in the court a admit or deny specifically, he shall
printed copy of the notice accompanied with an state such want of knowledge.
affidavit setting forth the dates of the first and • The answer must also set forth claims
last publication thereof and the name of the which the decedent has against the
newspaper in which the same is printed. claimant or else it will forever be
barred.
SOLIDARY OBLIGATION OF DECEDENT • A claim admitted by the
executor/administrator may be opposed by
• The claim shall be filed against the decedent as an heir/legatee/devisee. [Rule 86, Sec. 11]
if he were the only debtor, without prejudice to • The court may refer contested claims to a
the right of the estate to recover contribution commissioner. [Rule 86, Sec. 12]
from the other debtor. [Rule 86, Sec. 6]
• If the obligation of the decedent is joint with APPEAL FROM JUDGMENT ON A CLAIM
another debtor: The claim shall be confined to
AGAINST ESTATE
the portion belonging to him. [Rule 86, Sec. 6]
• Judgment is appealable like in ordinary cases.
MORTGAGE DEBT DUE FROM ESTATE • A judgment against executor/administrator
shall be that he pay the amount ascertained to
• Remedies of a creditor holding a claim against be due and shall not create any lien upon the
the deceased secured by a mortgage or other property of the estate, or give the judgment
collateral security: [Rule 86, Sec. 7] creditor any priority of payment. [Rule 86, Sec.
1) ABANDON the security and prosecute his 13]
claim against the estate and share in the • The mode of appeal is record on appeal and
general distribution of the assets of the must be filed within 30 days from notice of
estate. judgment.
2) FORECLOSE his mortgage or realize upon • When the executor /administrator admits and
his security by action in court making the offers to pay part of a claim, and the claimant
executor or administrator a party defendant refuses to accept the amount offered in
and if there is judgment for deficiency, he satisfaction of his claim, if he fails to obtain a
may file a claim (contingent) against the more favorable judgment, he cannot recover
estate within the Statute of Non-Claims. costs, but must pay to the
3) RELY SOLELY ON HIS MORTGAGE and executor/administrator costs from the time of
foreclose (judicial or extrajudicial) the the offer. Where an action commenced against
same at anytime within the period of the the deceased for money has been discontinued
Statute of Limitations but he cannot be and the claim embraced therein presented as in
admitted as creditor and shall receive no this rule provided, the prevailing party shall be
share in the distribution of the other assets allowed the costs of his action up to the time of
of the estate. its discontinuance. [Rule 86, Sec. 14]
• These remedies are alternative; the availment
of one bars the availment of the other
i. ACTIONS BY OR AGAINST
remedies.
EXECUTORS/
EXECUTOR’S/ ADMINISTRATOR’S CLAIM ADMINISTRATORS
AGAINST THE ESTATE
• Heirs may not sue the executor/administrator
for recovery of property left by the decedent
• If executor/administrator has a claim: He shall
until there is an order of the court assigning
give notice to the court in writing and the court
such lands to such heir or until the time for
thereafter shall appoint a special administrator.
paying debts has expired. [Rule 87, Sec. 3]
[Rule 86, Sec. 8]
maintain an action against the distributees to • The court may suspend the order for the
recover the debt, and such distributees and payment of debts or may order the distribution
their estates shall be liable for the debt in if an appeal is taken, among the creditors
proportion to the estate they have respectively whose claims are definitely allowed, leaving in
received form the property of the deceased. the hands of the executor/administrator
sufficient assets to pay the claim disputed and
CONTRIBUTIVE SHARE OF appealed. [Rule 88, Sec. 12]
DEVISEES/LEGATEES/HEIRS IN
POSSESSION OF PORTIONS OF ESTATE TIME FOR PAYMENT OF DEBTS AND
FOR DEBTS LEGACIES; PERIOD FOR SUCCESSOR OF
DECEASED ADMINISTRATOR/EXECUTOR
• If heirs have taken possession of portions of [Rule 88, Sec. 15 and 16]
the estate before the debts have been settled,
they shall become liable to contribute for the • Need not exceed 1 year in the first instance;
payment of debts and expenses, and the court but court may extend on application of
may, after hearing, settle the amount of their executor/administrator and after hearing and
several liabilities, and order how much and in notice thereof.
what manner each person shall contribute. • Extension must not exceed 6 months for single
[Rule 88, Sec. 6] extension. The whole period allowed to the
original executor/administrator shall not exceed
PAYMENT IF ESTATE INSOLVENT OR 2 years.
• The successor of dead executor/administrator
ASSETS INSUFFICIENT may be allowed an extension not to exceed 6
month.
• If insufficient estate to pay all debts: The
executor/administrator shall pay the debts
according to the concurrence and preference of k. SALES AND CONVEYANCE OF
credits provided by Art. 1059 and 2239-2251, PERSONALTY/REALTY FOR
CC. [Rule 88, Sec. 7] OTHER REASONS
• After following the order of preference of
credits, if all the creditors belonging to that
WHEN BENEFICIAL TO INTERESTED
class cannot be paid in full, then all of them will
suffer a reduction in proportion to that creditors PERSONS
claim No creditor of any one class shall receive
any payment until those of the preceding class • Authorization of sale as beneficial to interested
are paid. [Rule 88, Sec. 8] persons: [Rule 89, Sec. 4]
• Estate of an insolvent non-resident disposed of: 1) Upon application by the
His estate in the Philippines shall be so executor/administrator and on notice to
disposed of that his creditors in and outside the interested persons (heirs/devisees, etc.),
Philippines may receive an equal share, in the court may authorize the
proportion to their respective credits. [Rule 88, executor/administrator to sell the whole or
Sec. 9] part of the estate.
• Claim proven outside the Philippines against an 2) Authority shall not be granted if
insolvent resident’s estate paid: Claims proven inconsistent with the provisions of a will.
outside the Philippines where the executor had The proceeds of such sale shall be assigned
knowledge and opportunity to contest its to the persons entitled to the estate in the
allowance therein may be added to the list of proper proportions.
claims in the Philippines against the estate of
an insolvent resident and the estate will be CONVEYANCE OF REALTY WHICH
distributed equally among those creditors. The DECEASED CONTRACTED TO CONVEY
claims of foreign creditors against insolvent
non-residents and against insolvent residents DURING LIFETIME
would not be able to recover from the estate if
there is no reciprocity with that creditor’s AUTHORIZATION OF CONVEYANCE OF REALTY
country granting the same benefit to Filipinos. WHICH DECEASED CONTRACTED TO CONVEY [Rule
[Rule 88, Sec. 10] 88, Sec. 8]
• However, the benefit of this and the pre- • If the decedent was in his lifetime under
ceding sections shall not be extended to contract, binding in law, to deed real property
the creditors in another country if the on an interest therein, the court may authorize
property of such deceased person there the executor/administrator to convey such
found is not equally apportioned to the property according to such contract, or with
creditors residing in the Philippines and the such modifications as are agreed upon by the
other creditors, according to their parties and approved by the court.
respective claims. • If the property is to be conveyed to the
executor/administrator, it is the clerk of court
ORDER OF PAYMENT OF DEBTS which shall execute the deed.
PROCEDURE
• Before the expiration of the time limited for the • There should be an application for such
payment of debts (1 year, but may be purpose and notice should be given to the
extended), the court shall order the payment interested persons and such further notice, by
thereof. [Rule 88, Sec. 11] publication or otherwise, as the court deems
proper. [Rule 89, Sec. 8]
• While Rule 89, Sec. 8 does not specify who and the apportionment shall be settled and
should file the application, it stands to allowed by the court.
reason that the proper party must be one • Person interested in the partition does not
who is to be benefited/injured from the pay his proportion/share of the expenses of
judgment or one who is entitled to the partition, the court may issue an execution
avails of the suit (i.e. even people not the in the name of the executor/administrator
executor/administrator can file the against him.
application). [Heirs of Spouses Sandejas v.
Lina] REMEDIES AGAINST JUDGMENT OF
PARTITION
CONVEYANCE OF REALTY WHICH
DECEASED HELD IN TRUST • Partition may be set aside only if interested
party is left out by reason of circumstances
• Authorization of conveyance of realty which the beyond his control or mistake/inadvertence not
deceased held in trust: Following the notice imputable to negligence.
requirement required as in the case where the • Remedies: Motion to reopen within the 30-day
decedent was under contract to convey realty, reglementary period; then appeal from the
the court may allow the executor/administrator order of denial (the latter is not an independent
to deed such property to the person for whose action.
use and benefit the property was held. The • Since it is a proceeding in rem, all interested
court may order the execution of such trust persons have constructive notice, and
whether by deed or by law. [Rule 89, Sec. 9] jurisdiction of probate court is exclusive.
• Non-distribution of estate is not a ground for
l. PARTITION AND reopening. Remedy for such case is a
motion for execution, or, if beyond the
DISTRIBUTION OF ESTATE
reglementary period, a separate action for
recovery of shares.
WHEN ORDER FOR DISTRIBUTION OF
RESIDUE IS MADE
cannot be appointed guardian of the shown that the required notice was given. The
ward’s person and property. No man court shall then hear parties’ evidences. If the
can serve two masters. [Garchitorena person in question is an incompetent, the court
v. Sotelo] shall appoint a suitable guardian of his
person/estate/both. [Rule 93, Sec. 5]
PETITION’S CONTENTS [Rule 93, Sec. 2] • The guardian’s appointment is good until set
1) Jurisdictional facts; aside; and, despite and appeal therefrom, the
2) Incompetency rendering the appointment guardian can do what is necessary (under
necessary/convenient; court’s direction) for the protection of the
3) Names/ages/residences of the incompetent’s ward/estate. [Zafra-Sarte v. CA (1970)]
relatives, and of the persons having him in
their care; SERVICE OF JUDGMENT
4) Estate’s probable value and character; • The final order or judgment shall be served
5) Name of the person for whom letters of upon the civil registrar of the municipality/city
guardianship are prayed. where the incompetent resides or where his
property is situated. [Rule 93, Sec. 8]
• The petition shall be verified; but no defect in
the petition or verification shall render void the GUARDIAN’S BOND
issuance of letters of guardianship. [Rule 93,
Sec. 2] • Before an appointed guardian enters upon the
execution of his trust, or letters of guardianship
HEARING issue, he shall give a bond. [Rule 94, Sec. 1]
• Conditions on the bond: [Rule 94, Sec. 1]
• When a petition is filed, the court shall fix a 1) To make and return, within 3 months, the
time and place for hearing. The court shall estate’s inventory;
cause notice to be given to the persons 2) To faithfully execute the duties of his trust,
mentioned in the petition residing in the to manage and dispose of the estate
province, including the incompetent himself. according to ward’s best interests, and to
[Rule 93, Sec. 3] provide for the ward’s proper
• Notice to the ward’s relatives is a jurisdictional care/custody/education;
requirement. [Yangco v. CFI] 3) To account for the estate and all
proceeds/interest derived therefrom;
OPPOSITION [Rule 93, Sec. 4] 4) At the expiration of his trust, to settle his
• Any interested person may file a written accounts with the court and deliver the
opposition and pray that: remaining estate to the person lawfully
1) Petition be dismissed; entitled thereto;
2) Letters of guardianship issue to himself or 5) To perform all court orders.
to any suitable person named in the • In case of breach of the bond’s conditions, the
opposition. bond may be prosecuted in the same
• Grounds for opposition: proceeding or in a separate action, for the use
1) Competency of the alleged incompetent; and benefit of the ward or of any person legally
2) Unsuitability of the person for whom letters interested in the estate. [Rule 94, Sec. 3]
are prayed.
NEW BOND
CONSIDERATIONS IN THE CHOICE OF THE • Whenever necessary, the court may require a
GUARDIAN [Francisco v. CA (1984)] new bond to be given by the guardian. After
• The court may consider the financial situation, notice to interested persons, the sureties on
the physical condition and sound judgment, the old bond may then be discharged from
prudence and trustworthiness, the morals, further liability when no injury will result to
character and conduct, and the present and interested parties. [Rule 94, Sec. 2]
past history of a prospective appointee, as well
as the probability of his being able to exercise GUARDIAN’S GENERAL POWERS AND
the powers and duties of a guardian for the full
DUTIES
period during which guardianship will be
necessary.
1) To pay the ward's just debts out of:
• The courts should not appoint as a guardian
a) the personal estate and the real estate’s
any person who is not personally subject to
income;
their jurisdiction (e.g. non-residents).
b) if insufficient, the real estate (upon
[Guerrero v. Teran]
obtaining court order). [Rule 96, Sec. 2]
• The best interests of a ward can override
procedural rules and even the rights of parents 2) To settle all the ward’s accounts;
demand/sue/receive for all debts due the ward,
to the custody of their children.
or for the same and give discharges to the
• A person who is incompetent to act as an
executor/administrator does not necessarily debtor, on receiving a fair and just dividend of
need to be placed under guardianship. But if a the estate and effects; and appear for the ward
in all actions/proceedings, unless another
person is incompetent to act as executor or
administrator, then he is not the incompetent person is appointed for that purpose. [Rule 96,
Sec. 3]
person envisaged in the law of guardianship.
3) To manage the ward’s estate frugally and
[Lopez Vda. De Baluyot v. Ines-Luciano (1976)]
without waste; apply the income/profits to the
comfortable and suitable maintenance of the
GUARDIAN’S APPOINTMENT
ward and his family; and if the income/profits
• The alleged incompetent must be present at
are insufficient, sell/encumber the real estate
the hearing, if able to attend. It must also be
(upon court authorization). [Rule 96, Sec. 4]
will not affect the buyer’s rights. [Margate v. • Only the court which appointed the non-
Rabacal] resident’s guardian has jurisdiction over the
• Appeal is the proper remedy against a court guardianship. [Rule 96, Sec. 1]
order authorizing the sale of the ward’s • ANCILLARY GUARDIANSHIP -
property. [Lopez v. Teodoro (1950)] Guardianship in a state other than that in
which guardianship is originally granted
GUARDIANSHIP’S TERMINATION and which is subservient and subsidiary to
the later. [Johannes v. Harvey]
GROUNDS FOR TERMINATION • After filing of petition, notice and hearing, if the
1) If the incompetent is no longer incompetent. court is satisfied that the nonresident is an
[Rule 97, Sec. 1] incompetent rendering a guardian
• The person who was declared incompetent, necessary/convenient, it may appoint a
or his guardian/relative/friend, may petition guardian for the non-resident’s estate. [Rule
the court to have his present competency 93, Sec. 6]
judicially determined.
• The petition shall be verified by oath, and
shall state that the subject person is then
competent.
• Upon receipt of the petition, the court shall
fix the time for hearing, and cause notice to
be given to the guardian and the ward.
• On the trial, the guardian, the relatives and
(court’s discretion) any person may contest
the right to the relief demanded. Witnesses
may be called and examined by the parties
or by the court. If it is found that the
person is no longer incompetent, his
competency shall be adjudged and
guardianship shall cease.
2) If the incompetent dies.
3) If the guardian: [Rule 97, Sec. 2]
a) becomes insane or incapable/unsuitable of
discharging his trust;
b) wasted/mismanaged the estate;
c) failed for 30 days after it is due to render
an account or make a return;
d) resigns.
• Upon notice to the guardian, the court may
remove him and compel him to surrender
the ward’s estate to the person lawfully
entitled to it.
• An order removing a guardian is an order
constituting a final determination of his
rights. Hence, the guardian may appeal.
[Olarte v. Enriquez (1960)]
• A guardian may resign if it appears proper
to allow him.
• Upon the guardian’s resignation/removal,
the court may appoint another in his place.
4) If it appears that the guardianship is no longer
necessary, the court may discharge the
guardian. [Rule 97, Sec. 3]
GUARDIANSHIP OF NON-RESIDENT
INCOMPETENTS
1) The child’s best interest is the paramount QUALIFIED ADOPTEES [Sec. 5, Rule on
consideration in the child’s Adoption]
care/custody/adoption.
2) The State shall provide alternative protection 1) Any person below 18 years of age who was
and assistance to foundlings, neglected, voluntarily committed to DSWD or judicially
orphaned and abandoned children. declared available for adoption;
2) The legitimate child of one spouse, by the other
QUALIFIED ADOPTERS [Sec. 4, Rule on spouse;
Adoption] 3) An illegitimate child, by a qualified adopter to
raise the status of the former to that of
1) Any Filipino citizen: legitimacy;
a) of legal age; 4) A person of legal age regardless of civil status,
b) in possession of full civil capacity and legal if, prior to the adoption, said he was
rights; consistently considered and treated by the
c) of good moral character; adopters as their own child since minority;
d) has not been convicted of any crime 5) A child whose adoption was rescinded;
involving moral turpitude; 6) A child whose biological/adoptive parents died.
e) who is emotionally and psychologically But no proceedings shall be initiated within 6
capable of caring for children; months from the time of the parents’ death;
f) at least 16 years older than the adoptee; 7) A child not disqualified by law or these rules.
• Exception: when the adopter is:
(1) the adoptee’s biological parent; VENUE [Sec. 6, Rule on Adoption]
(2) the spouse of the adoptee’s parent.
g) who is in a position to support and care for • Family Court of the province/city where the
his children in keeping with the means of prospective adoptive parents reside.
the family.
2) Any alien:
PETITION FOR ADOPTION
a) possessing the same qualifications as
Filipinos;
b) whose country has diplomatic relations with ALLEGATIONS COMMON TO ALL PETITIONS [Sec.
7, Rule on Adoption]
the Philippines;
1) Adoptee’s first name, surname or names, age
c) who has been living in the Philippines for at
and residence as shown by his birth record,
least 3 continuous years prior to the filing
baptismal/foundling certificate and school
of the petition for adoption and maintains
records;
such residence until the adoption decree is
2) That the adoptee is not disqualified by law;
entered;
3) Adoptee’s estate’s value and character;
d) certified by his diplomatic/consular office to
4) First name, surname or names by which the
have the legal capacity to adopt in his
adoptee is to be known and registered in the
country;
Civil Registry.
e) whose government allows the adoptee to
enter his country as his adopted child.
SPECIFIC ALLEGATIONS [Sec. 7-10, Rule on
Adoption]
• Residency and certification requirements on
alien may be waived for:
specific allegations
(1) a former Filipino citizen who seeks to
adopt a relative within the 4th degree If Filipino adopter a) Jurisdictional facts
of consanguinity/affinity; b) Adopter's qualifications
c) That adopter has
(2) one who seeks to adopt the legitimate
undergone pre-adoption
child of his Filipino spouse; services
(3) one who is married to a Filipino citizen
and seeks to adopt jointly with his
If alien adopter a) Jurisdictional facts
spouse a relative within the 4th degree b) Adopter's qualifications
of consanguinity/affinity of the Filipino
spouse. If guardian-adopter Adopter's qualifications
3) The guardian with respect to the ward, after
If foundling-adoptee Entries which should appear
the termination of the guardianship and in the birth certificate
clearance of his financial accountabilities.
If petition also prays for a) Child's registered name
JOINT ADOPTION BY SPOUSES change of name b) Aliases or other names
• General rule: Husband and wife shall jointly by which the child has
adopt. been known
• Exception: c) The full name by which
1) If one spouse seeks to adopt the the child is to be known
legitimate child of the other spouse;
2) If one spouse seeks to adopt his own
illegitimate child; provided the other
spouse consented;
3) If the spouses are legally separated.
• If the spouses jointly adopt or one spouse
adopts the illegitimate child of the other, joint
parental authority shall be exercised by the
spouses.
If petition for rectification a) That it is an application • If the petition and attachments are sufficient in
of simulated birth for rectification of a form and substance, the court shall issue an
simulated birth order.
b) That the simulation was • Order’s contents:
made prior to the
1) Adoptee’s registered name in the birth
effectivity date of RA
8552, and that the certificate, and the names by which the
application for adoptee has been known (to be stated in
rectificaion and the the caption);
petition for adoption 2) Petition’s purpose;
were filed within 5 years 3) Complete name which the adoptee will use
from that date if the petition is granted;
c) That the petitioner made 4) Hearing’s date and place of hearing (within
the simulation for the
6 months from the date of the order’s
adoptee's best interests
d) That the adoptee was issuance)
consistently considered • Copy of the order shall be published at
and treated by petitioner least once a week for 3 successive
as his own child weeks before the hearing, in a
newspaper of general circulation in the
If petition for adoption of a) Facts showing that the province/city where the court is
foundling, abandoned, child is a foundling, situated.
dependent or neglected abandoned, dependent • If the application is for change of name,
children or neglected
the hearing shall not be within 4
b) Parents' names and
residence, if known, and months after the last publication of the
their residence. If notice nor within 30 days prior to an
unknown, then those of election.
the guardian 5) Directive to the social worker to prepare
c) Name of the duly and submit child and home study reports
licensed child-placement before the hearing, if such reports were not
agency or individual who attached to the petition due to
has care and custody of
unavailability at the time of the filing; and
the child
d) That the DSWD/agency 6) Directive to the social worker to conduct
is authorized to give its counseling sessions with the biological
consent parents and to submit a report before the
hearing.
• Court has discretion to furnish copies of the
order to OSG, DSWD and the adoptee’s
PETITION’S ANNEXES [Sec. 11, Rule on Adoption] biological parents.
1) Birth/baptismal/foundling certificate and school • If a change in the adoptee’s name is prayed
records, showing adoptee’s name, age and for, notice to OSG is mandatory.
residence;
2) Affidavit of consent of: CHILD AND HOME STUDY REPORTS [Sec.
a) The adoptee, if 10 years of age or over; 13, Rule on Adoption]
b) The child’s biological parents or legal
guardian, child-placement/child-caring • The social worker shall verify with the Civil
agency or proper government agency; Registry the adoptee’s real identity and
c) The adopter’s and the adoptee’s legitimate registered name. If the adoptee’s birth was not
and adopted children who are 10 years of registered, the social worker shall register the
age or over; adoptee and secure a certificate of foundling or
d) The adopter’s illegitimate children living late registration.
with him who are 10 years of age or over; • The social worker shall establish that:
e) The adopter’s and the adoptee’s spouses. 1) the child is legally available for adoption;
3) Child study report on the adoptee and his 2) the documents in support thereof are valid
biological parents; and authentic;
4) If petitioner is an alien, certification by his 3) that the adopter has sincere intentions;
diplomatic/consular office that he has the legal 4) that the adoption shall inure to the child’s
capacity to adopt in his country and that his best interests.
government allows the adoptee to enter his • If the adopter is an alien, the home study
country as his own adopted child unless report must show:
exempted under Sec.4(2); 1) his legal capacity to adopt;
5) Home study report on the adopters. If the 2) that his government allows the adoptee to
adopter is an alien or residing abroad but enter his country as his adopted child in the
qualified to adopt, the home study report by a absence of the certification required under
foreign adoption agency duly accredited by the Sec. 7(b), RA 8552.
Inter-Country Adoption Board; and • If the social worker finds that there are
6) Decree of annulment, nullity or legal separation grounds to deny the petition, he shall make the
of the adopter and of the adoptee’s biological proper recommendation to the court, with copy
parents, if any. furnished the petitioner.
ORDER OF HEARING [Sec. 12, Rule on HEARING [Sec. 14, Rule on Adoption]
Adoption]
• Upon satisfactory proof of publication and
jurisdiction, the court shall hear the petition.
The petitioner and the adoptee must personally 1) Name by which the child is to be known and
appear. The petitioner must testify. registered;
• The court shall verify from the social worker to: 2) Order for the COC to issue to the adopter a
1) determine WON the biological parent was certificate of finality upon expiration of the 15-
properly counseled against making hasty day reglementary period for appeal;
decisions caused by strain/anxiety to give 3) Order for the adopter to submit a certified true
up the child; copy of the adoption decree and the certificate
2) ensure that all measures to strengthen the of finality to the Civil Registrar where the child
family have been exhausted; was originally registered, within 30 days from
3) ascertain if any prolonged stay of the child receipt of the certificate of finality. In case of
in his own home will be inimical to his change of name, the decree shall be submitted
welfare and interest. to the Civil Registrar where the issuing court is
situated.
SUPERVISED TRIAL CUSTODY [Sec. 15, Rule 4) Order for the Civil Registrar of the place where
on Adoption] the adoptee was registered:
a) to annotate on the adoptee’s original birth
• Before issuance of the adoption decree, the certificate the adoption decree, within 30
court shall give the adopter trial custody of the days from receipt of the certificate of
adoptee for at least 6 months. Within this finality;
period, the parties are expected to adjust b) to issue a birth certificate which shall not
psychologically and emotionally to each other bear any notation that it is a new/amended
and establish a bonding relationship. certificate;
• The trial custody shall be monitored by the c) to seal the original birth certificate in the
social worker who submitted and prepared the civil registry records, which can be opened
case studies. only upon order of the court which issued
• During the period, temporary parental authority the adoption decree;
shall be vested in the adopter. d) to submit to the court issuing the adoption
• Where the trial custody had not yet begun decree proof of compliance within 30 days
or had already been completed at the time from receipt of the decree;
of a quasi-delict committed by the child to e) If the adoptee is a foundling, to annotate
be adopted, the adopting parents cannot the adoption decree on the foundling
assume any liability therefor. Accordingly, certificate.
his natural parents should be joined as
indispensable parties to the suit for CONFIDENTIALITY OF PROCEEDINGS AND
damages. [Tamargo v. CA (1992)] RECORDS [Sec. 18, Rule on Adoption]
• The court may reduce the period or exempt the
parties if it finds that the same shall be for the • After compliance with jurisdictional
adoptee’s best interests. requirements, all adoption hearings shall be
• General rule: An alien adopter must complete confidential and shall not be open to the public.
the 6-month trial custody. All related records shall be kept strictly
• Exception: confidential.
1) A former Filipino citizen who seeks to • If the court finds that disclosure to a 3rd
adopt a relative within the 4th degree; person is necessary for security reasons or for
2) One who seeks to adopt the legitimate purposes connected with or arising out of the
child of his Filipino spouse; adoption and will be for the adoptee’s best
3) One who is married to a Filipino citizen interests, the court may order the necessary
and seeks to adopt jointly with his information to be released, restricting the
spouse the latter’s relative within the purposes for which it may be used.
4th degree.
• If the child is below 7 years of age and is
ADOPTION’S RESCISSION
placed with the prospective adopter through a
DSWD pre-adoption placement authority, the
court shall order that the prospective adopter • Adoption may not be rescinded by the adopter;
shall enjoy all the benefits to which the but he may disinherit the adoptee under Art.
919, CC. [Sec. 19, Rule on Adoption]
biological parent is entitled from the date the
• Rationale: Adoption is for the child’s best
adoptee is placed with him.
interests.
• The social worker shall submit to the court a
report on the result of the trial custody within 2
GROUNDS FOR RESCISSION THAT ARE
weeks after its termination.
COMMITTED BY THE ADOPTER [Sec. 19, Rule on
Adoption]
ADOPTION DECREE [Sec. 16, Rule on 1) repeated physical and verbal maltreatment
Adoption] despite having undergone counseling;
2) attempt on the adoptee’s life;
• If the supervised trial custody is satisfactory to 3) sexual assault/violence;
the parties, the court is convinced from the trial 4) abandonment or failure to comply with parental
custody report and the evidence that the obligations.
adoption shall redound to the adoptee’s best
interests, an adoption decree shall be issued. VENUE [Sec. 20, Rule on Adoption]
• The adoption decree shall take effect as of the • Family Court of the city/province where the
date the original petition was filed, even if the adoptee resides.
petitioners die before its issuance.
WHO MAY FILE THE PETITION FOR RESCISSION
ADOPTION DECREE’S CONTENTS [Sec. 19, Rule on Adoption]
• The adoptee who is over 18 years of age. cannot be placed in a foster/adoptive family or
• With the assistance of: cannot be cared for in the Philippines;
1) DSWD, if he is a minor; 2) To ensure that the child enjoys the same
2) His guardian/counsel, if he is over 18 years protection accorded to children in domestic
of age but is incapacitated. adoption;
3) To ensure that the placement does not result in
WHEN TO FILE THE PETITION FOR RESCISSION improper financial gain for those involved.
[Sec. 21, Rule on Adoption]
• Within 5 years: QUALIFIED ADOPTEES [Sec. 29, Rule on
1) After reaching the age of majority, if the Adoption]
adoptee is incapacitated;
2) After recovery from incompetency, if the • Only a child legally available for domestic
adoptee is incompetent. adoption may be the subject of inter-country
adoption.
ORDER TO ANSWER [Sec. 22, Rule on Adoption]
• The court shall order the adverse party to
VENUE [Sec. 28, Rule on Adoption]
answer the petition within 15 days from
receipt of a copy thereof.
1) Family Court having jurisdiction over the place
where the child resides or may be found.
JUDGMENT [Sec. 23, Rule on Adoption]
2) Directly with the Inter-Country Adoption Board.
• If the court finds that the petition’s allegations
are true, it shall order the rescission of
adoption. PETITION FOR ADOPTION
• The court shall order that:
1) The biological parents’ parental authority, PETITION’S CONTENTS [Sec. 30, Rule on Adoption]
or the DSWD’s legal custody, shall be 1) Age of the petitioner and of the child to be
restored if the adoptee is still a adopted, showing that petitioner is at least 27
minor/incapacitated. years of age and at least 16 years older than
2) The reciprocal rights and obligations of the the child at the time of application;
adopter and the adoptee shall be • Exception: If the petitioner is the child’s
extinguished. biological parent or the spouse of such
3) The successional rights shall revert to its parent.
status prior to adoption, as of the date of 2) If petitioner is married, the name of the spouse
judgment of judicial rescission. Vested who must be joined as co-petitioner;
rights acquired prior to judicial rescission • Exception: If the adoptee is the spouse’s
shall be respected. legitimate child.
4) The adoptee shall use the name stated in 3) Petitioner’s capacity to act and assume all
his original birth/foundling certificate. rights and responsibilities of parental authority
5) The Civil Registrar where the adoption under his national laws, and that he has
decree was registered shall cancel the new undergone the appropriate counseling from an
birth certificate of the adoptee and accredited counselor in his country;
reinstate his original birth/foundling 4) Non-conviction of crimes involving moral
certificate. turpitude;
5) Eligibility to adopt under his national law;
SERVICE OF JUDGMENT [Sec. 24, Rule on 6) That he can provide the proper care and
Adoption] support and instill the necessary moral values
• A certified true copy of the judgment and a and example to all his children, including the
certificate of finality shall be served by the child to be adopted;
petitioner upon the Civil Registrar within 30 7) That he agrees to uphold the basic rights of the
days from receipt of the certificate of finality. child;
The Civil Registrar shall enter the rescission 8) That he comes from a country with which the
decree in the register and submit proof of Philippines has diplomatic relations and whose
compliance to the court within 30 days from government maintains a similarly authorized
receipt of the decree. and accredited agency; and that adoption of a
Filipino child is allowed under his national laws;
9) That he possesses all the qualifications and
B. INTER-COUNTRY none of the disqualifications provided in this
ADOPTION Rule, in RA 8043 and other Philippine laws.
SCOPE AND APPLICABILITY [Sec. 26, Rule PETITION’S ANNEXES [Sec. 31, Rule on Adoption]
1) Petitioner’s birth certificate;
on Adoption]
2) Marriage contract, divorce decree or judgment
dissolving the marriage;
• RA 8043 (Inter-Country Adoption Act) governs
3) Sworn statement of consent of petitioner’s
the adoption of Filipino children by:
biological/adopted children above 10 years of
1) Foreign nationals;
age;
2) Filipino citizens permanently residing
4) Physical, medical and psychological evaluation
abroad.
of the petitioner certified by a duly licensed
physician and psychologist;
OBJECTIVES [Sec. 27, Rule on Adoption] 5) Income tax returns or any authentic document
showing the petitioner’s current financial
1) To consider inter-country adoption as an capability;
alternative means of child care, if the child 6) Police clearance issued within 6 months before
the filing of the petition;
INSANITY
5) The court shall make proper provisions for the VII. ABSENTEES
custody of the ward’s property until a guardian
is properly appointed.
APPOINTMENT OF A REPRESENTATIVE
[Rule 107, Sec. 1; Art. 381, CC]
• General rule: HC writ shall not issue if court had jurisdiction. [Harden v. Director
the restraint is voluntary. [Kelly v. (1948)]
Director of Prisons] • HC writ is not intended as a substitute for the
• Exception: HC is a proper remedy functions of a trial court. In the absence of
to enable parents to regain custody exceptional circumstances, the orderly course
of a minor, even if the minor is in of trial should be pursued and the usual
the custody of a 3rd person of his remedies exhausted before the writ may be
own free will. [Tijing v. CA] invoked. HC writ is not ordinarily available in
• Rationale: Custody cases advance of trial to determine jurisdictional
involving minors are prosecuted errors that may arise. [Galvez v. CA (1994)]
to determine custody rights • HC writ may not be validly resorted to in lieu of
over a child. a lost/dismissed appeal. [In re: Azucena Garcia
3) If, as a consequence of a judicial (2000)]
proceeding: [Feria v. CA (2000)] • It is necessary that the court judgment which
a) There is deprivation of a constitutional resulted in the illegal deprivation of liberty is no
right resulting in the person’s restraint; longer appealable, in which case the writ is in
b) The court has no jurisdiction to impose the nature of a collateral attack against a final
the sentence; or but void judgment. [Chavez v. CA (1968)]
c) An excessive penalty was imposed,
because the sentence is void as to the HC PETITION
excess.
• A signed and verified petition must allege:
ACTUAL AND EFFECTIVE RESTRAINT [Rule 102, Sec. 3]
• The essential object of the HC writ is to inquire 1) Fact of confinement/detention;
into inbvoluntary restraint and to relieve the 2) By whom;
detained person. Thus, the restraint of liberty • If the restraining person is
must be an illegal and involuntary deprivation unknown/uncertain, use an assumed
of freedom of action which must be actual and appellation. But the person served is
effective, not merely nominal/moral. [Ilusorio deemed the person intended.
v. Bildner (2000)] 3) Where; and
• It is not physical restraint alone which is 4) Cause or commitment order (if it can be
inquired into by the HC writ. Any restraint procured without impairing HC writ’s
which will prejudice freedom of action is efficiency), or lack thereof.
sufficient ground. [Moncupa v. Enrile (1986)]
• Freedom may be lost due to external moral
HC WRIT’S ISSUANCE
compulsion, fear or erroneous belief in the
existence of the will. If the actual effect of
such psychological spell is to plow a person • General rule: If it appears that the writ should
issue, the COC issues the writ under the court’s
at the mercy of another, the victim is
entitled to the courts’ protection as much seal. [Rule 102, Sec. 5]
as an individual who is illegally deprived of • Exception: In emergency cases, the judge
may issue the writ under his own hand and
liberty by physical coercion. [Caunca v.
deputize any person to serve it.
Salazar]
• The law even makes it the duty of the court
• Jurisprudence extended the definition of
to grant the HC writ if there is evidence
“restraint” to an accused who is out on bail and
that a person is unjustly restrained within
to convicts on parole. [In re: Azucena Garcia
the court’s jurisdiction, though no
(2000)]
application for the writ was made.
[Villavicencio v. Lukban (1919)]
RELEASE OF THE DETAINED
• The sole issue in HC proceedings is detention. • Contents of the writ: [Rule 102, Sec. 6]
When the release of the detained person is
distraint by officer distraint NOT by officer
effected, the petition for the issuance of the HC
writ becomes moot and academic. [Olaguer v. directed to him directed to an officer
Military Commission (1987)] orders him to produce the orders officer to: 1) take
• The release that renders a petition for the HC person before the court and produce the person
writ moot and academic is one that is free from before the court and 2)
involuntary restraints. Hence, the writ may still summon the person
detaining to show the cause
be applied for if: [Moncupa v. Enrile (1986)] of destraint
1) A person continues to be denied any of his
constitutional rights;
• Grounds for denying the writ: [Rule 102, Sec.
2) The restraints are not merely involuntary
4]
but appear to be unnecessary;
1) Custody under process/order by a court
3) An originally valid deprivation of liberty
with jurisdiction;
became arbitrary, in light of subsequent
2) If jurisdiction appears after the writ is
developments.
allowed, the detained cannot be discharged
because of informality/defect in the
NOT A SUBSTITUTE FOR TRIAL’S ORDINARY
process/order;
COURSE
3) Charge/conviction for an offense in the
• The HC writ does not lie to correct errors of fact
Philippines;
or law. If a court has jurisdiction, its
4) Imprisonment under lawful order.
judgment/order is not subject to collateral
attack by HC. The writ cannot perform the
function of a writ of error, even if the HC WRIT’S SERVICE
judgment/order is erroneous, provided the
• If the person to whom the writ is directed prove new matter that tends to invalidate the
cannot be found or does not have custody of apparent effect of the process. [Feria v. CA
the detained person, serve the writ on any (2000)]
person who has such custody. [Rule 102, Sec. • Exception: [Rule 102, Sec. 13]
7]
if custody is under if custody is by any
HC WRIT’S EXECUTION warrant of commitment alleged private
pursuant to law authority
but not the body. Hence, the two may be C. WRIT OF HABEAS DATA
used together for review purposes.
• HD WRIT – An independent remedy to protect
B. WRIT OF AMPARO the right to privacy, especially the right to
informational privacy.
• AMPARO – Literally, to protect. • Rationale:
• The instrument originated in Mexico and has • The privacy of one’s person/family/home is
been constitutionally adopted by Latin a sanctified right in the history of
American countries (except Cuba) to protect constitutional law. A person’s home is his
against human rights abuses, especially during kingdom, which even the king has to
the time when they were governed by military respect.
juntas. The writ was adopted to provide for a • The right to privacy is accorded a
remedy to protect the whole range of recognition independent of its identification
constitutional rights, including socio-economic with liberty. In itself, it is fully deserving of
rights. constitutional protection. A system of
• In light of the recent prevalence of extralegal limited government safeguards a private
killings and enforced disappearances (ELKED), sector, which belongs to the individual;
SC exercised its enhanced power to promulgate firmly distinguishing it from the public
rules to protect and enforce constitutional sector, which the government can control.
rights. [Art. 8, Sec. 5[5], Consti] Protection of this private sector (i.e. of the
• EXTRALEGAL KILLINGS – Killings individual’s dignity and integrity) has
committed without due process of law (i.e. become increasingly important as modern
without legal safeguards or judicial society developed. All the forces of
proceedings). technological age operate to narrow the
• ENFORCED DISAPPEARANCES – area of privacy and facilitate intrusion into
Attended by the following circumstances: it. In modern terms, the capacity to
1) Arrest/detention/abduction of a person maintain and support this enclave of
by a government official or organized private life marks the difference between a
groups or private individuals acting democratic and a totalitarian society.
with the in/direct acquiescence of the [Morfe v. Mutuc (1968)
State; • The HD writ is also a remedy to protect the
2) Refusal of the State to disclose the right to life/liberty/security of a person
fate/whereabouts of the person from violation (or threat thereof) by an
concerned, or refusal to acknowledge unlawful act/omission of a public official/EE
the deprivation of liberty, which places or of a private individual/entity.]
such persons outside the protection of
the law. [Declaration on the Protection
of All Persons from Enforced
Disappearances]
• The Philippine Constitution does not explicitly
provide for the writ. However, several amparo
protections are available under the 1987
Constitution.
• The Grave Abuse Clause in Art. 8, Sec. 1,
Consti accords the same protection to human
rights given by amparo.
Constitutional basis
Amparo contra leyes Art. 5, Sec.5(2)(a), Consti:
SC has review powers over
all cases in which the
constitutionality/validity of
any treaty,
international/executive
agreement, law,
presidential issuances, or
regulation is in question
Xxx a) To verify the aggrieved party's identity c) Data/information's currency and accuracy
Change of Name (Rule Correction of clerical 1) When the name is ridiculous, dishonorable, or
103) or typographical error extremely difficult to write/pronounce.
(RA 9048) 2) Consequence of a change in status (e.g.
Judicial Administrative: Local civil legitimation).
registrar or consul 3) To avoid confusion. [Alfon v. Republic
general (for nonresident (1980)]
citizens)
4) Having continuously used and been known
Includes change in Clerical/typographical
since childhood by a Filipino name, unaware
surname errors and change in
first/nick name of his/her alien parentage. [Ang Chay et al.
v. Republic (1970)]
• A change of name is a proceeding in rem. As 5) A sincere desire to adopt a Filipino name to
such, strict compliance with all jurisdictional erase signs of former alienage, all in good
faith and without prejudicing anybody. [Uy v.
requirements, particularly on publication, is
essential in order to vest the court with Republic (1965)]
jurisdiction. [Regalado]
• An alien can petition for a change of name COURT ACTION [Rule 103, Sec. 3]
but he must be domiciled in the Philippines.
[Ong Huan Tin v. Republic (1967)] • The court shall promulgate an order:
• The name that can be changed is the name 1) Reciting the purpose of the petition;
that appears in the civil register, and not in 2) Fixing a date and place of hearing;
the baptismal certificate or that by which the 3) Directing that a copy of the order be
person is known in the community. [Ng Yao published before hearing at least once a
Siong v. Republic (1966)] week for 3 successive weeks in a
• Legal separation is not a ground for the newspaper of general circulation.
female spouse for a change of name under • The date for hearing shall not be within 30
Rule 103. [Laperal v. Republic (1962)] days prior to an election nor within 4 months
• A change of name granted by the court after the last publication of notice of hearing.
affects only a petitioner. A separate petition
for change of name must be filed for his/her WHO MAY OPPOSE PETITION [Rule 103,
spouse and children. [Secan Kok v. Republic Sec. 4]
(1973)]
• Sex reassignment is not a valid ground to 1) Any interested person;
change one’s first name (applies to both Rule 2) The Solicitor General (OSG) or the proper
103 and RA 9048). [Silverio v. Republic provincial/city fiscal shall appear on behalf of
(2007)] the Republic of the Philippines. The OSG
Court order fixing the date and place for hearing WHO MAY FILE PETITION [Rule 108, Sec. 1]
upon the civil registrar concerned, who shall XI. APPEALS IN SPECIAL
annotate the same.
PROCEEDINGS
ACTIONS TO BE TAKEN TO OPPOSE THE
PETITION [Rule 108, Sec. 5]
APPEALABLE ORDERS/JUDGMENTS [Rule
• The civil registrar and any person 109, Sec. 1]
having/claiming any interest under the entry
whose cancellation or correction is sought 1) If it dis/allows a will;
may file an opposition in court, within 15 2) If it determines who are the lawful heirs or
days from notice of the petition or from the the distributive shares;
last date of such notice. 3) If it wholly or partially dis/allows a claim
against a decedent’s estate, or any claim
presented on the estate’s behalf in offset to a
B. CANCELLATION OR claim against it;
CORRECTION OF 4) If it settles the account of an
executor/administrator/trustee/guardian;
ENTRIES IN THE CIVIL 5) If it constitutes a final determination in the
REGISTRY UNDER RA lower court of the rights of the party
appealing, in proceedings relating to estate
9048 settlement or administration of a
trustee/guardian;
• Note: See the section on change of name. • Exception: Appointment of a special
administrator is not appealable.
6) If it is the final order/judgment rendered in
the case, and affects the substantial rights of
the person appealing.
• Exception: Orders granting/denying a
MFR/MNT.
• Notwithstanding a pending
controversy/appeal in estate settlement
proceedings, the court may permit that the
estate’s parts which are not affected by the
controversy/appeal be distributed, upon
compliance with Rule 90.