Bar Review Guide Justice Magdangal M. de Leon
1. Distinction between civil action and special proceedings a. Civil action – action by which a party sues another for enforcement or protection of a right, or prevention or redress of a wrong. b. Special proceeding – remedy by which a party seeks to establish a status, right or a particular fact. 2. Nature of special proceedings – initially non-adversarial in nature; in the course of proceedings, there may be oppositors.

GENERAL PROVISION Rule 72 Subject matter and Applicability of General Rules Sec. 1. Subject matter of special proceedings. Settlement of Estate of Deceased Persons Guardianship of Minors Guardianship of Incompetents Adoption and Custody of Minors Trustees Hospitalization of Insane Persons Habeas Corpus Change of Name Voluntary Dissolution of Corporations (Deemed repealed by the Corporation Code, Title XIV, Secs. 117-122) Judicial Approval of Voluntary Recognition of Minor Natural Children Constitution of Family Home (Deemed repealed by the Family Code, Arts. 252-253) Absentees Cancellation or Correction of Entries Appeals in Special Proceedings

1. Rules 73-75 ) 2. Rules 76-81 ) 3. Rules 82-86 ) 4. Rules 87-90 ) 5. A.M. No. 03-02-05-SC 6. Rules 92-97 7. A.M. No. 02-06-02-SC 8. Rule 98 9. Rule 101 10. Rule 102 11. Rule 103 12. Rule 104

13. Rule 105 14. Rule 106 15. Rule 107 16. Rule 108 17. Rule 109 •

Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369) - declaration of absolute nullity of void marriages and annulment of voidable marriages - legal separation - provisional orders on support, custody of minor children and administration of common property - violence against women and their children and protection orders 3. Proceedings under: 4. 5. 6. 7. 8. • Child & Youth Welfare Code (PD 1083) Child Abuse Act (RA 7610) Child Employment Act (RA 7658) declaration of status as abandoned, dependent or neglected children voluntary or involuntary commitment of children suspension, termination or restoration of parental authority

Domestic and Inter-country adoption Petition for corporate rehabilitation Petition for writ of amparo Petition for writ of habeas data Arbitration Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions. In the absence of special rules, the rules provided for in ordinary actions shall be, as far as practicable, applicable to special proceedings. 1. Rule 17 governing dismissal of actions by plaintiff in civil actions (Ventura vs. Ventura, Sept. 24, 1969) 2. Rules regarding: - preparation, filing and service of applications, motions, and other papers - omnibus motions - subpoena - computation of time - motion for new trial - discovery - trial before commissioners - procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589 [1964]) 3. Rule 33 regarding judgment on demurrer to evidence (Matute vs. CA, 26 SCRA 768 [1969]) • Recent jurisprudence

In the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring a certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person. (Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)


A. Settlement of Estate of Deceased Persons, Venue and Process
• Art. 777, Civil Code – rights to succession are transmitted from the moment of death of the decedent.

This is only from the substantive aspect. From the PROCEDURAL aspect, there are certain procedures that must be observed before actual transmission of the property, but rights of the heirs retroact from the moment of death. • Recent jurisprudence

The right of respondent’s predecessors over the subject property is more than sufficient to uphold respondent’s right to possession over the same. Respondent’s right to the property was vested in her along with her siblings from the moment of their father’s death. As heir, respondent had the right to the possession of the property, which is one of the attributes of ownership. Such rights are enforced and protected from encroachments made or attempted before the judicial declaration since respondent acquired hereditary rights even before judicial declaration in testate or intestate proceedings.(Bunyi versus Factor. G.R. No. 172547, June 30, 2009)

1. Which court has jurisdiction
• Settlement of estate The determination of which court exercises jurisdiction over matters of probate depends upon the GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended by BP 129, as amended by RA 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000, 323 SCRA 102]), Hence, the court may be the MTC or RTC. Kinds of settlement based on the FORM of settlement: 1. Extrajudicial settlement (Rule 74, Sec. 1) 2. Summary settlement of estates of small value (Rule 74, Sec. 2) 3. Judicial settlement through letters testamentary or letters of administration with or without the will annexed (Rules 73, 75-90)

2. Venue in judicial settlement of estates
Rule 73 VENUE AND PROCESS Sec. 1. Where estate of deceased persons settled. 1. 2. 3. If residing in Philippines at time of death, whether citizen or not, court of PLACE OF RESIDENCE. If residing in a foreign country – court of ANY PLACE WHERE HE HAD ESTATE. Court first taking cognizance of settlement of estate of a decedent shall exercise jurisdiction TO THE EXCLUSION of all other courts. - subject to preferential jurisdiction of court where TESTATE proceedings are filed.

4. Jurisdiction assumed by a court depending on - place of residence of decedent, or

2. However. 3. In election cases. or actual residence or place of abode. Where estate settled upon dissolution of marriage A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for collection of sum of money chargeable against the conjugal property. G. the “residence” of a person is his personal. for purposes of fixing venue under the Rules of Court. that is.  CUENCO VS. San Luis. there was showing that petitioner in probate proceeding knew before filing of petition in Manila that there was already intestate proceeding in Negros. Sec. Ruling: priority to first court. 133743. testate (reprobate) in CFI Manila. either in separate special proceeding or motion. relates to VENUE and not jurisdiction. or • when want of jurisdiction appears in the record • NOTES: 1. the other testate – illustrative cases on which courts should have “jurisdiction”:  ROBERTS VS. “residence” and “domicile” are treated as synonymous terms. it is found that decedent left a will. CA (53 SCRA 360 [1973]) – intestate in Cebu court. Probate of will MANDATORY. Where two proceedings filed. February 6. Explain difference between Uriarte and Cuenco rulings – In Uriarte. b. it is possible that a person may have his residence in one place and domicile in another. as distinguished from “legal residence” or “domicile. Sec. the fixed permanent residence to which when absent.location of estate shall NOT BE CONTESTED in a suit or proceeding. (San Luis vs. testate in QC court. • except in an appeal from that court. and instead DEFER to second court.anomalous that estate of person who died testate should be settled in intestate proceedings. one intestate.Judge assigned to testate proceeding should continue hearing the two cases. Ruling: priority to second court. Term “resides” refers to “actual or physical” residence. testate in Manila court. If the will is admitted to probate. First court. a. If in the course of intestate proceeding. one has the intention of returning. Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of residence or (b) where his estate is located. Petitioner in Manila court should have submitted will for probate to Negros court.4 .  URIARTE VS. Reason: upon death of one spouse. LEONIDAS (129 SCRA 33) – intestate in CFI Manila Branch 20.R. Testate proceeding takes precedence over intestate proceeding. (33 SCRA 252) – intestate in Negros court. 1. powers . 2007) 2. proceeding for probate of will should REPLACE intestate proceeding.” There is a distinction between “residence” for purposes of election laws and “residence” for purposes of fixing the venue of actions. actual or physical habitation. Branch 38. Proper remedy – file a claim in the settlement of estate of the decedent. it will definitely DECLINE to take cognizance. may DECLINE TO TAKE COGNIZANCE of and HOLD IN ABEYANCE petition before it. Intestate case should be CONSOLIDATED with testate proceeding . No. CFI OF NEGROS OCC. which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. upon learning that petition for probate has been presented in another court. Ruling: priority to second branch of same court (CFI Manila). Hence.

1. Sec. probate court can decide question of ownership ( Coca vs. Probate court can only pass upon questions of title provisionally for the purpose of determining whether a certain property should or should not be included in the inventory. 4. CASES: Vda. without prejudice to third persons ( Trinidad vs. Sec. 91 SCRA 540.where issue or ownership of properties excluded from the inventory is finally determined ( Pobre vs. Powers and duties of probate court • However. . Parties have to resort to an ordinary action for final determination of conflicting claims of title. 182 SCRA 119 [1990]) and (b) distribute estate. 3). (Alipio vs. Probate court cannot adjudicate or determine title to properties claimed to be a part of the estate and equally claimed as belonging to outside parties. CA. 122 SCRA 885. 174 SCRA 154 .5 of administration of surviving spouse ceases and is passed to administrator appointed by probate court in the settlement proceedings. Pastor vs. In the exercise of probate jurisdiction. Pereira vs. Pangilinan. Summary Settlement of Estates 1. 148 SCRA 553 [1987]). • B. probate court has jurisdiction to (a) determine heirs – separate action for declaration of heirs not proper ( Solivio vs. It can only determine whether or not they should be included in the inventory or list of properties to be administered by the administrator. With consent of all the parties. 2. the court may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments. • Separate civil action for quieting of title . CA. 3. Extent of jurisdiction of probate court • Probate court is of limited jurisdiction 1. 202 SCRA 106 [1991]). Extrajudicial settlement by agreement between the heirs • REQUISITES OF EXTRAJUDICIAL SETTLEMENT . de Rodriguez vs. and all other powers granted to them by law (Rule 73. CA. 341 SCRA 441 [2000]) 3. CA. CA. Gonong. EXCEPTION: Where interested parties are all heirs and rights of third parties are not impaired. 81 SCRA 278 [1987]). CA. when allowed Rule 74. Extrajudicial settlement by agreement between heirs. 4.

1. however. Rule 74. 1 of Rule 74 have been strictly complied with – that all persons or heirs of the decedent have taken part in . 1. Vargas. Rule 74 – when person dies without having obligations to be paid. Two-year prescriptive period • Action to annul deed of extrajudicial settlement – Sec. 156536. • RATIONALE for Sec. G. • Extrajudicial settlement – on whom binding The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. 302). notwithstanding any transfers of real estate that may have been made (Sec.. and (2) when the provisions of Sec. October 31. Real estate is subject to lien in favor of creditors. 101 Phil. Heirs all of legal age or minors represented by judicial guardians or legal representatives 4.  FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS REQUIRED – whether by public instrument. 4. Pasion. CA. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. July 30. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate. heirs or other persons for 2 years from distribution of estate. No. which is always long and costly (Utulo vs. ** Bond required only when personality is involved in the extrajudicial settlement. (Cua vs. The rule plainly states. extrajudicial settlement NOT BINDING on any person who has not participated therein or who had no notice thereof (Sec. G. stipulation in pending action for partition. 161220. 199 SCRA 646 (1991). Publication in newspaper of general circulation in the province once a week for 3 consecutive weeks 6. last par. Decedent dies intestate 2. affidavit. 2006) The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution.  DESPITE ITS PUBLICATION. 4.R. his heirs are not bound to submit property for judicial administration.6 1. Sampilo vs. No. that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. CA.R.  Lack of registration of extrajudicial settlement does not affect its validity when there are no creditors or rights of creditors are not involved (Vda. No outstanding debts at time of settlement* 3. • • IF HEIRS DISAGREE – ordinary action for partition. 66 Phil. Settlement made in public instrument duly filed with Register of Deeds 5. 2008) 2. 71 [1958]). IF ONLY ONE HEIR – affidavit of self-adjudication. de Reyes vs. Heirs of Cuyos. Bond equivalent to value of personal property posted with Register of Deeds** * Presumed that decedent left no debts if no creditor filed petition for letters of administration within 2 years after death of decedent. Rule 74 provides a two year prescriptive period (1) to persons who participated or taken part or had notice of the extrajudicial partition. (Spouses Tiro vs. Rule 74).

August 16. 1144. Respondent. G. CA. Guillermo could not have validly adjudicated Josefa’s estate all to himself. 155555.R. because an action for reconveyance based on implied or constructive trust. CA. ES-no outstanding debts of estate at time of settlement SS-even if there are debts 5. 2005) Since Josefa Delgado had heirs other than Guillermo Rustia. No. 2006 4. Prescriptive period for non-participants – 10 years. 300 SCRA 653 [1998]). Remedies of aggrieved parties after extrajudicial settlement of estate The remedy of an heir who did not participate in. 2. when allowed Distinction between extrajudicial settlement (ES) and summary settlement of estates of small value (SS): 1. or had no knowledge of. Section 1 of the Rules of Court is clear. 155733. (In the Matter of the Intestate Estate of Delgado. Section 1 of the Revised Rules of Court. de Damian. executed on February 15.No. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate. prescribes in 10 years (Art. 6. 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74. Civil Code) The period starts from issuance of title over the property ( Marquez vs. par. 3. Summary settlement of estates of small value. Affidavit of self-adjudication by sole heir Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate ( Delgado vda. Said rule is an exception to the general rule that when a person dies leaving a property. January 27.R. (Portugal vs. ES-allowed only in intestate succession SS-both testate and intestate 4. Heirs of Marciana Rustia vda. it should be judicially administered and the competent court should appoint a qualified administrator. de De la Rosa vs. Rule 74. Constructive trusts under Art. or in case he did. Portugal-Beltran. 1456 are established to prevent unjust enrichment. 480 SCRA 334 [2006]).00 3. believing rightly or wrongly that she was the sole heir to Portugal’s estate. 353 SCRA 620 [2001]).000. being an obligation created by law. Rule 78 in case the deceased left no will. ES-value of estate immaterial SS-applies only where gross value not more than P10. in the order established in Sec. G.7 the extrajudicial settlement or are represented by themselves or through guardians (Pedrosa vs. the extrajudicial partition is to file an action for reconveyance. he failed to name an executor therein. In Marquez. husband executed affidavit of self-adjudication without including the children . ES-no court intervention SS-judicial adjudication although summary 2.

8 The ruling in Gerona vs. Nittscher. that prescriptive period for non-participants is 4 years from discovery of fraud. Thus. since it was not probated. The Deed of Donation which is one of mortis causa. October 17. is imprescriptible as long as the land has not passed to an innocent purchaser for value (Heirs of Saludares vs. Judge Untalan. petitioner’s claim of title to the properties forming part of her husband’s estate should be settled in an ordinary action before the regular courts. No. Aluad. The Gerona doctrine was abandoned in Amerol vs. 172 SCRA 858 [1989]). Nature of probate proceeding • PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY . • Art. cited in Pedrosa vs. The law enjoins probate of the will and public policy requires it. • Exception to prescription of actions – when plaintiff. no right to Lot Nos. Petitioner should realize that the allowance of her husband’s will is conclusive only as to its due execution. November 20. G. 176943. is in possession of the land to be reconveyed. i. right of a person to dispose of his property by will may be rendered nugatory ( Maninang vs. Civil Code defines a will as: an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate to take effect after his death. CA. no valid partition among heirs until after will has been probated (Ralla vs. Allowance of will is conclusive as to its due execution. 21 SCRA 428 [1967]).e. CA. But even assuming that the formalities were observed. is void and transmitted no right to petitioners’ mother.R. and not the defendant registered owner. (Nittscher vs. Said action. freely executed the will in accordance with the formalities prescribed by law. which governed prescription). is not applicable. 43. because the same was based on the old Code of Civil Procedure (Sec. being of sound mind. Dimaguiba. Allowance of will necessary 1. when based on fraud. Bagumbaran. The authority of the probate court is limited to ascertaining whether the testator. 2008 b. CA. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because public policy requires that a will should be probated ( Fernandez vs.. C. a. (Aluad vs. CA. 783. Production and Probate of Will Rule 75 Production of will. CA.. when deed was filed with Register of Deeds and new title issued. De Guzman. c.R. 1. 180 SCRA 401 (1989) and Marquez vs. G. Probate of will (special proceeding to establish the validity of a will) is MANDATORY. 11 SCRA 153 (1964). 2007) 2. No. 420 SCRA 54). In intestate succession. not having followed the formalities of a will. 114 SCRA 478 [1982]). 160530. 674 and 676 was transmitted to Maria. the legal owner. Unless will is probated and notice given to the whole world. 154 SCRA 396 (1987) and reiterated in Caro vs.

5. Probate court may only disregard passing on extrinsic validity of will where intrinsic validity apparent on face of will (Maninang vs. 2. 3. CA. supra) 3. 1. 4. court ruled that will was intrinsically invalid as it completely preterited parents of the testator. testator’s testamentary capacity – sound mind c. a. will in possession of petitioner or not will lost will destroyed .: a. compliance with formal requisites or solemnities 1. In exceptional instances. In Nuguid. Intrinsic validity of the will normally comes after court declares that will has been duly authenticated. b. i. Who may petition for probate.e.9 GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the will. Probate of will might become idle ceremony if on its face it appears intrinsically void. c. Maninang vs. 4. since it is required by public policy. • 1. EXCEPTIONS: 1. 2. 236 SCRA 488 [1994]). due execution – voluntariness b. Who may petition for allowance of will. persons entitled to notice Rule 76 Allowance or Disallowance of Will Sec. CA. WHO Executor Legatee – need not be a relative of decedent Devisee – need not be a relative of decedent Other interested person . 17 SCRA 449 [1966].heir. creditor Testator – during his lifetime • WHEN – at any time after death of testator – not subject to bar by statute of limitations and does not prescribe. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or legality of the provisions of the will (Nuguid vs. • • WHERE – court having jurisdiction WHAT – petition to have will allowed whether: a. Ca. Nuguid. courts not powerless to pass upon certain provisions of will which it may declare invalid even as it upholds extrinsic validity of will ( Ajero vs. Disinheritance – annuls institution of heirs as to portion of estate which disinherited heirs have been illegally deprived 2. 2. supra). Preterition – annuls institution of heirs b.

are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. No. 4.R. that a person has died leaving a will. or 3. probable value and character of the property of the estate d. name of the person for whom letters are prayed e. a. 1. designated or known heirs. Jurisdictional facts: 1. Rule 76. as nephews and nieces of the decedent. legatees and devisees b. D. Personal service – at least 10 days before hearing 5. “when a will is delivered to the court. ages and residences of the heirs. 156021. 3. • Notice to Designated Heirs. (Alaban vs. if the will has not been delivered to the court. • Only known heirs. September 23. residing in the Philippines 3. if known 4. G. 2. Attaching of mere copy of will sufficient – annexing of original of will to the petition is not jurisdictional requirement. Mailed service – at least 20 days before hearing 6. Heirs. person named as executor (if he is not petitioner) c. Galing. legatees and executor to be notified by mail or personally. legatees and devisees of the testator or decedent c. legatees. names. at their places of residence. Legatees and Devisees Jurisdictional – when they are known AND their places of residence are known (De Arranz vs. CA. b. Sec. person named as co-executor not petitioning 2. and 2.10 JURISDICTION HOW ACQUIRED a. Rules of Court]. devisees. issue corresponding notices. the name of the person having custody thereof . the testator is a non-resident at the time of death but left property within the territorial jurisdiction of the court b. Respondent had no legal obligation to mention petitioners in the petition for probate. Contents of petition for allowance of will Rule 76. Allowance or Disalllowance of will 1. Rule 76. Petitioners. 161 SCRA 628). or to personally notify them of the same. Contents of petition. legatees and devisees entitled to personal notice Rule 76. the testator at the time of death is a resident within the territorial jurisdiction of the court. 2005). IF TESTATOR asks for allowance of his own will – notice shall be sent only to his COMPULSORY HEIRS. 4.” court could motu proprio take steps to fix time and place for proving the will. Sec. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Notice is required to be personally given to known heirs. Delivery of will sufficient even if no petition filed – under Sec. and devisees of the testator. Notice of time and place of hearing should be addressed to a. [Sec.

etc. devisees. or petition for allowance of will filed in court having jurisdiction. De Jesus. Court to appoint time for proving the will. Publication 2. and possibility of bad faith obviated – it should be admitted to probate (De Jesus vs. if places of residence known 3. 2. expert testimony (in the absence of competent witness) 5. Sec. Probate JURISDICTIONAL Without publication of petition. b. even against the state.11 Rule 76. • When probate is granted. 134 SCRA 245). court – a. Contested – contestant has burden of disproving genuineness and due execution b. Holographic will – testator himself as petitioner a. the judgment is binding upon everybody. Uncontested – testator must affirm that will and signature are in his own handwriting • Substantial Compliance Rule If will executed in substantial compliance with formalities of law. 5. Notice of hearing served on known heirs. Testimony of subscribing witnesses a. proceedings for settlement of estate is VOID and should be ANNULLED. Publication 1. Probate of Will is In Rem • Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE NOTICE to the whole world. published. • EVIDENCE INTRODUCED AT PROBATE OF WILL 1. Uncontested – at least one witness who knows handwriting and signature of testator. After will delivered to. Contested – at least 3 witnesses who know handwriting of testator. Proof of hearing. shall fix time and place for proving will – when all concerned may appear to contest allowance thereof. expert testimony (in the absence of competent witness) b. . Uncontested – one witness sufficient b. Notice thereof to be Notice and Hearing. Rule 76. Contested – all subscribing witnesses and notary (wills executed under Civil Code) other witnesses (under certain conditions) 4. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR himself. Holographic will a. legatees. Sec. cause notice of such time and place to be PUBLISHED 3 weeks successively in newspaper of general circulation in the province. 3. What sufficient in absence of contest.

Testamentary capacity b. but not the whole will. Reprobate. due execution of will in accordance with foreign laws 2. Exc. supra) • Reprobate of will While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Tolete. Legal formalities a. e. Grounds for disallowing will Rule 76. procured by undue and improper pressure and influence on the part of the beneficiary. • EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the Philippines: 1. Requisites before will proved outside allowed in the Philippines. Sec. for his benefit. 389. will has been admitted to probate in such country 4. supra). 9. 9. it affects only the validity of the dispositions. Will proved outside of the Philippines may be allowed here. testator insane or otherwise mentally incapable to make will at time of execution 3. fact that foreign court is a probate court 5. or some other person. If unauthenticated alterations. signature of testator procured by fraud or trick and he did not intend that the instrument be his will at time of fixing his signature f. Due execution c. Civil Code) • Grounds for Disallowance of Will Exclusive Lists in Sec. Example: If testator fails to sign and date some dispositions in holographic will. petitioner. law of the foreign country on procedure and allowance of wills (Vda. testator has domicile in foreign country and not Philippines 3. Tolete. 3. not executed and attested as required by law 2. executed under duress. • Separate wills may be probated jointly (Vda. Grounds for disallowing will. 1. as ancillary administrator of . CA. de Perez vs. cancellations or insertions are made on the DATE of will of on testator’s SIGNATURE ( Ajero vs. 389 are EXCLUSIVE – NO OTHER GROUND can serve to disallow a will. 1. de Perez vs. Rule 76 and Art. or the influence of fear.12 2. or threats d. effects of probate Rule 77 Allowance of will proved outside of philippines and administration of estate thereunder Sec. testator acted by mistake or did not intend that instrument be signed or should be his will at the time of affixing his signature (Art. 232 SCRA 722 [1994]). however.

accepts the trust and c. so far as such will may operate upon it (Rule 77. Non-residence 3. 2009) LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78. Unfitness a. 4) When the will is proved and allowed. de Perez vs.R. if he is -a. August 4. 139868. June 8. competent b. G. Guersey-Dalaygon. 18 SCRA 371 [1966]). After payment of just debts and expenses of administration.13 Audrey’s estate. 3 and 4 of Rule 76. G. required also in wills for reprobate ( Vda. Failure to file an income tax return” is not a crime involving moral turpitude because the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. No. gives bond . The letters testamentary or of administration granted shall extend to all of the estate of the testator in the Philippines. the estate shall be disposed of according to such will. drunkenness b. it shall have the same effect as if originally proved and allowed in such court (Rule 77. want of integrity e. was duty-bound to introduce in evidence the pertinent law of the State of Maryland. E. want of understanding d. the court shall issue LETTERS TESTAMENTARY thereon to the person named as EXECUTOR therein. re publication and notice by mail or personally to known heirs. Minority 2. 130371. GROUNDS FOR INCOMPETENCE 1. 4). if he is not the petitioner. (Republic vs.R. EFFECT OF PROBATE When the will is allowed. when and to whom issued Sec. conviction of offense involving moral turpitude (anything done contrary to justice. Tolete). Letters Testamentary and of Administration Rule 78 Letters testamentary and of administration. Diaz-Maillares. legatees and devisees of testator resident in the Philippines and to executor. No. Who are incompetent to serve as executors or administrators • • • EXECUTOR – person named in the will to administer decedent’s estate to carry out provisions thereof ADMINISTRATOR – person appointed by the court to administer the estate Administrator need not be an heir – can be a stranger to the deceased. incompetence c. such as a creditor. Marcos. 2006) PUBLICATION AND NOTICE REQUIRED Compliance with Secs. 3). (Ancheta vs. 1. honesty. good morals) • Courts may refuse to appoint a person as executor or administrator on ground of UNSUITABLENESS – adverse interest or hostile to those immediately interested in the estate (Lim vs. Sec. Sec. Sec.

R. G. 6. Not being appealable. other person selected by court – if no creditor competent or willing The order of preference in the appointment of a regular administrator as provided in the afore-quoted provision does not apply to the selection of a special administrator. Jr. A separate action will only result in a multiplicity of suits. Sec. 2005) 2. or. Person dies intestate 4. (Tan vs. Will void and not allowed ) letters of administration ) 2. Rule 78 of the Rules of Court for the next of kin refers to the appointment of a regular administrator. 166520. Order of preference Order of preference in appointment of administrator (Rule 78. the reference is to those who are entitled. G. one whose relationship is such that he is entitled to share in the estate as distributed. therefore. under the statute of distribution. Maglaya. next of kin • Meaning of next of kin On the matter of appointment osf administrator of the estate of the deceased.. Refuse the trust c. Incompetent . (Angeles vs. 2008) • Court may reject order of preference . No executor named in will 2. the probate court perforce has to determine and pass upon the issue of filiation. neglects for 30 days after death of decedent to apply for administration. person requested by spouse or next of kin 3. or to request that administration be granted to some other person 3. to the decedent’s property.14 1. 153798. and is not appealable. Gedorio. When the law speaks of “next of kin”. Sec.Unfit b. principal creditors a. March 14. When and to whom letters of administration granted Rule 78.Non-resident . surviving spouse – partner in conjugal partnership and heir of deceased 2. When and to whom letters of administration granted • When administration granted ) ) letters of administration with will annexed 1. the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent. in short. No. The preference under Section 6.R. the surviving spouse is preferred over the next of kin of the decedent. In resolving. the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court. Fail to give bond 3. as the appointment of the latter lies entirely in the discretion of the court. Executor/s (is/are): a. if spouse or next of kin is incompetent or unwilling or b.Minor . No. 6) 1. September 2. and not of a special administrator. an heir.

at the discretion of the court. improvidence or mismanagement – have the HIGHEST INTEREST and MOST INFLUENTIAL MOTIVE to administer estate correctly (Gonzales vs. Opposition to issuance of letters testamentary. or executor is incompetent. G. and at the same time file petition for letters of administration with will annexed. February 6. or one who has a claim against the estate. Aguinaldo. especially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estate. 133743. 6 SCRA 874). Rule 79) Publication and notice of hearing (per Sec. 3. Meaning of “interested person” – one who would be benefited by the estate (heir). 2008) PUBLICATION AND NOTICE REQUIRED (Sec. • Sec. refuses trust or fails to give bond. Those who will reap benefit of a wise. No. Tayag-Gallor. . 3. such as an heir. such contingent interest does not make her an interested party. The order of preference does not rule out the appointment of co-administrators. San Luis. (Tayag ve.R. 1. An “interested person” has been defined as one who would be benefited by the estate. 2007) Where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse. LETTERS OF ADMINISTRATION – issued to administrator in intestate proceedings. Opposition to issuance of letters testamentary. can no longer be established. March 24. not merely indirect or contingent (Sagunsin vs.R. and not merely indirect or contingent (San Luis vs. or one who has a claim against the estate (creditor). Lindayag. 190 SCRA 112 [1990]). such as a creditor. speedy and economical administration or will suffer consequences of waste.15 While surviving spouse is entitled to preference in the appointment. simultaneous filing of petition for administration Rule 79 Opposing issuance of letters testamentary. 174680. The interest must be material and direct. G. the principal consideration is the interest in the estate of the one to be appointed. Simultaneous petition for administration Any person interested in a will may oppose in writing the issuance of letters testamentary to persons named as executors. Rule 76) jurisdictional. petition and contest for letters of administration • • LETTERS TESTAMENTARY – issued to executor LETTERS OF ADMINISTRATION WITH WILL ANNEXED – issued to administrator when there is no executor named in will. circumstances might warrant his rejection and appointment of someone else. No. Interest must be MATERIAL and DIRECT. • Interest in estate as principal consideration In the appointment of an administrator. 3.

books and papers relating to the partnership business. except when authorized by the court (Silverio. When there is delay in granting letters testamentary or of administration by any cause . Rule 79. as in the Petition at bar) occasioned by any cause. examine and take copies of. questions causing delay decided or b. 166520. and. executors or administrators appointed The appointment of a special administrator is justified only when there is delay in granting letters. 2009) 5. and examine and make invoices of the property belonging to such partnership (Ibid.. (Rule 84. Sec. funeral charges and other expenses against the estate. 3) The administrator may only deliver properties of the estate to the heirs after payment of the debts. c.R. September 16. • ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE .. testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no will. With the approval of the court. 2008) • PUBLICATION AND NOTICE REQUIRED Even in the appointment of a special administrator. until a. Appointment of special administrator Rule 80 Special administrator • WHEN IS SPECIAL ADMINISTRATOR APPOINTED 1. b. G. Rule 76) if names and addresses are known (De Arranz vs. Sec. Sec. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs. court may appoint special administrator to take possession and charge of the estate of the deceased 3. Jr. Powers and duties of executors and administrators. Gedorio. Galing). No. Court of Appeals .16 Also. vs. G. (Rule 84. Maintain the estate in tenantable repair. 1). (Tan vs. 178933. restrictions on their powers Powers: a. notice to “known heirs and creditors of the decedent. 2) b. (Executor or administrator of estate of a deceased partner) Have access to.including appeal from allowance or disallowance of will 2. 4) Duties a. Sec. Possess and manage estate of the deceased to pay debts and expenses of administration. and to any other person believed to have an interest in the estate” (per Sec. Jr. Deliver the same to the heirs or devisees when directed by the court. 3. to compound or compromise with a debtor of the deceased (Rule 87. March 14.R. same jurisdictional requirements under Sec. No. 4. 4.

(Hilado vs. 1. Probate of the will is mandatory (Sec. the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt. 2. 164108. resignation. Proceedings thereon. 3. and the general competence or good faith of the administrator is necessary to fulfill such purpose. 3. 1. 2. probate proceedings should REPLACE intestate proceedings 3. CFI of Negros Occidental: 1. Administrator is required to – a. letters of administration shall be REVOKED and all powers thereunder cease. the proper remedy is to seek the removal of the administrator in accordance with Section 2. Without prejudice that proceeding shall continue as intestacy should alleged will be rejected or disapproved. hence not appealable (Samson vs. resignation or removal. Court of Appeals. If in the course of intestate proceedings. 735) 6. • WHAT TO DO WITH PROCEEDINGS – DISCRETIONARY WITH COURT Whether intestate proceedings already commenced should be discontinued and a new proceeding under a separate number and title should be constituted – entirely a MATTER OF . Samson. Resignation and Removal of Executors and Administrators Sec.17 Order appointing special administrator interlocutory in nature and mere incident in the judicial proceedings. 1. Rule 75) and therefore takes precedence over intestate proceedings. resignation. While the provision is silent as to who may seek with the court the removal of the administrator. May 8. Proceedings upon death. No. or removal.R. render final account b. Administration revoked if will discovered. Rule 82 was followed in Uriarte vs. 2. or removal to be valid. even a contingent one. it is found out that decedent left a last will. Court may remove or accept resignation of executor or administrator. After all. G. 2009) Sec. surrender letters to the court and b. Rule 82. his will is PROVED AND ALLOWED by the court. a creditor. Sec. turn over estate in his possession to executor subsequently appointed 5. resignation or removal of executor or administrator on his previous acts – lawful acts shall have same validity as if no revocation. Concerning complaints against the general competence of the administrator. Proceedings for issuance of letters testamentary or of administration will follow. 4. would have the personality to seek such relief. 1. Effect of revocation. Acts before revocation. Grounds for removal of administrator Rule 82 Revocation of Administration. render his account within such time as the court directs 4. • Rule on Precedence of Probate of Will Sec. even if at that stage an administrator had already been appointed.Death. 102 Phil. If after letters of administration have been granted as if decedent died intestate. Administrator shall forthwith a.

it may be barred by SNC. 45 SCRA 381). Period fixed within 6 months 3. One month does not commence from expiration of the original period for filing claims. 486). F. 2). 2.NOTICE requiring all persons having MONEY CLAIMS against the estate .18 FORM and lies within SOUND DISCRETION of court. 1). 1. It begins from the date of the order of the court allowing said filing (Barredo vs. court shall issue . creditor who failed to file his claim within the time set may move to be allowed to file such claim.to FILE them in the office of the clerk of court (Sec. executor or administrator shall cause 1. SNC supersedes statute of limitations – even if claim has not yet prescribed. Claims Against the Estate Rule 86 Claims against Estate • Notice to creditors – immediately after granting letters testamentary or of administration. • Publication of notice to creditors (Sec. Statute of Non-Claims • Statute of Non-Claims (SNC) – the period fixed for the filing of claims against the estate. 1. 2. 57 Phil. Does not prejudice substantial rights of heirs and creditors (Intestate Estate of Wolfson. • New period allowed (Sec. second sentence) At any time before order of distribution is entered. Time within which claims shall be filed. and 2. 2 public places in the municipality where decedent last resided PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE WHOLE WORLD . exception • Time for filing claims – not more than 12 months nor less than 6 months after date of FIRST PUBLICATION of the notice (Sec. 6 SCRA 620). ex. • Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of deceased persons for the benefit of CREDITORS and those entitled to the RESIDUE by way of INHERITANCE or LEGACY after the debts and expenses of administration have been PAID (Sikat vs. 3) Immediately after notice to creditors is issued. posting for the same period in a. Villanueva. publication of said notice 3 weeks successively in newspaper of general circulation in the province. CA. Court may for good cause shown and on such terms as are just allow such claim to be filed within a period NOT EXCEEDING ONE MONTH. 2. 4 public places in the province and b. Such period once fixed by the court is MANDATORY – it cannot be shortened. Period fixed by probate court must not be less than 6 months nor more than 12 months from the date of first publication of the notice.

Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor. La Provedra. PNB. No. Claims for money against the decedent arising from contract. 2005). G. A money claim against an estate is more akin to a motion for creditors' claims to be recognized and taken into consideration in the proper disposition of the properties of the estate. Sec. No. which merely passed on to his estate. Thus. express or implied. December 13. vs. 149926. 157912. • Rationale: 1) to protect the estate of the deceased by informing the executor or administrator of the claims against it. A favorable judgment obtained by plaintiff shall be enforced under Rule 86 (Rule 3. Judgment for money against decedent a. thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. In the present case. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate. Inc. February 23. his death did not result in the extinguishment of those obligations or liabilities. b. not due or contingent 2. or heirs (Union Bank of the Philippines vs. herein petitioner's contingent money claim. Hence. When the action is for recovery of money arising from contract. it shall not be dismissed but shall be allowed to continue until entry of final judgment.R.19 Hence. G. Respondents’ monetary claim shall be governed by Section 20 (then Section 21). What is extinguished is only the obligee’s action or suit filed before the court.R. whatever monetary liabilities or obligations Santos had under his contracts with respondent were not intransmissible by their nature. legatees. Republic-Asahi Glass Corporation. (Stronghold Insurance Company. more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. 2007) • Must be filed within the time limited in the notice. (Gabriel vs. G. 2) speedy settlement of affairs of deceased. Hence. 5) 1. otherwise they are BARRED FOREVER. G. Death is not a defense that he or his estate can set up to wipe out the obligations under the performance bond.R. 147561. creditor cannot be permitted to file his claim beyond the period fixed in the notice on the ground that he had no knowledge of the administration proceedings ( Villanueva vs. February 7. • Claims that must be filed (Sec. Claims for funeral expenses and expenses for last sickness of decedent 3. 2006) 2. Bilon. 146989. Rule 86 of the Rules of Court. No. No. Estate of Alice Sheker. Santibaňez. (Sheker vs. Exception – may be set forth as COUNTERCLAIMS in any action executor or administrator may bring against the claimants. and 3) early delivery of property to distributes. does not require a certification against non-forum shopping. not being an initiatory pleading. or by provision of law. 9 SCRA 145). Those claims are not actually extinguished. and defendant dies before entry of final judgment.R. by stipulation. • Money claims against a deceased debtor 1. June. 2007) . whether due. 38 SCRA 379). Rule 3 In relation to Section 5. said money claims must be filed against the estate of petitioner Melencio Gabriel. which is not then acting as a probate court. 20). The judgment must be presented as a claim against the estate where the judgment debtor dies before levy on execution of his properties (Evangelista vs.

No. Nistal. he shall give notice thereof. If the executor or administrator has a claim against the estate he represents. law. in the adjustment of such claim. 13) – judgment of the court approving or disapproving a claim is APPEALABLE as in ordinary actions 3. 1963). arising from contract can be presented in the testate or intestate proceedings. Bayotas. Executor/ administrator (law. being civil. 179 SCRA 704 [1985]). 8 1.20 • • • Only MONEY CLAIMS may be presented in the testate or intestate proceedings. Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86. Estate of accused (contract) b. the special administrator shall. Ordinary action for collection not allowed (Nacar vs. Sec. quasi-contract. • Enumeration exclusive – refers only to contractual money claims Only claims for money. 164108. 2.funeral expenses . May 8. the court shall appoint a special administrator. and 4. to the court 3. claimant should PRESENT CLAIM before probate court ( Domingo vs. Claims arising after his death cannot be presented EXCEPT . These actions. execution not proper remedy to enforce payment. • • • Mandamus not available – immediate payment of claim by the administrator is NOT A MATTER OF RIGHT (Echaus vs. Claims arising after decedent’s death may be allowed as expenses of administration. debt or interest thereon. • Claims which survive death of accused Claim for civil liability survives notwithstanding death of accused if the same may also be based on a source of obligation other than delict (contract. NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by decedent before his death. (Hilado vs. 119 SCRA 29) Judgment appealable (Sec. quasi-delict) (People vs. Claim of executor or administrator against the estate Rule 86. in writing. Garlitos. 2009) • Execution of final judgment not proper remedy but filing of claim When judgment in a civil case has become final and executory.R. have the same ..B. Rule 87. Blanco. June 29.expenses for last sickness N. quasi-contract. G. 236 SCRA 239 [1994]). survive the death of the decedent and may be commenced against the administrator pursuant to Section 1. Court of Appeals. quasi-delict) Separate civil action may be enforced either against a.

2. Sec. Order of payment if estate insolvent . NOTE: This provision clearly authorizes execution to enforce payment of the debts of the estate. 1-5. 7 (a) referring to payment of debts and/or legacies As ruled in Pastor.21 power and be subject to the same liability as the general administrator or executor in the settlement of the estate From an estate proceeding perspective. 2008) 4. 3. 1. legatees or heirs have entered into possession or the estate before debts and expenses settled and paid. 6. Compare to: Rule 88. Successor of dead executor/administrator may have time extended on notice not exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to original executor/administrator. Whole period allowed to original executor/administrator shall not exceed 2 years. Payment of debts Rule 88 Payment of debts of the estate Sec. Where devisees. (Briones vs. 1. August 22. Executor/administrator allowed to pay debts (and legacies) for a period not more than 1 year. Extendible (on application of executor/ administrator and after notice and hearing) – not exceeding 6 months for a single extension. Secs. 2. 2239-2251 of Civil Code • TIME FOR PAYING DEBTS (Secs. the Special Administrator’s commission is no less a claim against the estate than a claim that third parties may make. Henson-Cruz. G. order settlement of their several liabilities and order how much and in what manner each person shall contribute and may issue execution as circumstances require. legatees or heirs have been in possession. No. 1059. ordered payment of legacy violative of rule requiring prior liquidation of estate (determination of assets of estate and payment of debts and expenses) before apportionment and distributed of residue among heirs. Sec. 15 & 16 Rule 89. legatees and devisees. after hearing. 3.follow preference of credits under Arts. 15 & 16) 1. and 2. Secs. . Legacy is not a debt of the estate – legatees are among those against whom execution is authorized to be issued (Pastor vs. 7. xxx The ruling on the extent of the Special Administrator’s commission – effectively. have become liable to contribute for payment of such debts and expenses. a claim by the special administrator against the estate – is the lower court’s last word on the matter and one that is appealable. Court to fix contributive shares where devisees. Court may.R. CA. 159130. Part of estate from which debt paid when provision made by will. 4. 122 SCRA 885 [1983]). Debts paid in full if estate sufficient Sec.

July 30. Rule 86) 2. Executor or administrator may bring or defend actions which survive. Actions to recover damages for an injury to person or property. Purpose of administration – distribution of residue among heirs and legatees after payment of debts and expenses (Luzon Surety vs. It is an action that survives pursuant to Section 1. is an action that survives pursuant to Section 1. 72 Phil. 567). de Te. Rule 87 of the Rules of Court. court shall order sale of personal property or sale or mortgage of real property of the deceased to pay debts and expenses of administration out of the proceeds of the sale or mortgage. 2. legatees and devisees residing in the Philippines. 1 of Rule 90 does not include legacies as among those that should be paid before order of distribution – only debts. 175910. (Saligumba vs. Akol. G. funeral charges. 1. expenses of administration. it is not extinguished by the death of a party. Rule 88 above). G. After debts and expenses of administration paid. No. a motor vehicle. Quebrar. 6. G. 1.R.R. As such. • Writ of execution not proper procedure for payment of debts and expenses of administration Upon motion of the administrator with notice to all heirs. Vda. Actions to recover real or personal property or interest thereon. 3488. or to enforce a lien thereon Civil Case No. (Sarsaba vs. 1. 2570 is an action for quieting of title with damages which is an action involving real property. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for recovery of money or debt or interest thereon. 2009) b. 2 & 5. Palanog. 143365. Rule 87 as the claim is not extinguished by the death of a party. Actions which may and which may not be brought against executor or administrator. Actions by and against Executors and Administrators Rule 87 Actions by and against executors and administrators 1. . Sec.MUST BE AGAINST ESTATE (Secs. Actions that administrators may be brought against executors and Sec.22 Correct rule: Sec. allowance to widow and inheritance tax. ALLOWED – actions which survive a. residue given to heirs and those entitled by way of inheritance or legacy (Magbanua vs. Exception: where devisees. legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and expenses (See Sec. December 4. which is an action for the recovery of Aa personal property. 2008) Civil Case No. 127 SCRA 301). No. real or personal .

it cannot survive. 868). 4. 650). a person embezzles or alienates money or property of the deceased – liable to an action in favor of executor/administrator for DOUBLE THE VALUE of the property sold. 3.23 • Executor or administrator may sue upon any cause of action which accrued to the decedent during his lifetime (Bayot vs. unless by its very nature. • Double value rule If before grant of letters testamentary or of administration. with the permission of the court. Sorbito. Executor or administrator is unwilling or refuses to bring suit. because death extinguishes such right. in the name of the executor or administrator. Lien for costs. Pending the filing of administration proceedings – under Art. Sec. Deficiency of assets 2. 39 Phil. Dee. 2. Administration proceedings have already been commenced but administrator has not yet been appointed. When creditor may bring action. When executor or administrator must bring action)  Any creditor of the estate may. debt or duty) as stated in Sec. rights to succession are transmitted from the moment of death of the decedent. 9 (entitled Property fraudulently conveyed by the deceased may be recovered. Exceptions: 1. • Any action affecting the property rights of a deceased which may be brought by or against him if he were alive. and 3. Sec. . may be instituted and prosecuted by or against the administrator. Executor or administrator has not commenced the action provided in Sec. 3. a like action for the recovery of the subject of the conveyance or attempted reconveyance for the benefit of the creditors. Heir (and devisee) may not sue (executor or administrator to recover title or possession or for damages to property) until share assigned. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased Sec. embezzled or alienated. 90 Phil. Deceased in his lifetime had made or attempted such a conveyance (with intent to defraud creditors or to avoid any right. 777. 9. Embezzlement before letters issued. When there is 1. Before distribution is made or before any residue known – heirs and devisees have NO CAUSE OF ACTION against the administrator for recovery of property left by the deceased (Lao vs. 8. Administrator is alleged to have participated in the act complained of and he is made a party defendant. 3. 10. • When heirs may file action in court General rule: heirs have no legal standing to sue for recovery or protection of property rights of the deceased. commence and prosecute to final judgment.

Declaration of heirs – to determine to whom residue of the estate should be distributed. The project of partition is a proposal for distribution of the hereditary estimates and determines the persons entitled thereto (Moran. to our mind. Separate action for declaration of heirs not proper. Liquidation . inasmuch as Civil Case No. by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death. expenses of administration d. pp. 1. 688-689) . Vol. Comments on the Rules of Court. 3. is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher.determination of all assets of the estate and payment of all debts and expenses 2. 2007) 2. G. The Regional Trial Court in the instant case.24 o Creditor should file a BOND executed to the executor or administrator. all donations subject to collation would be added to it With the partible estate thus determined. Liquidation • Requisites before distribution of estate 1. inheritance tax Exception: distribution before payment of obligations provided distributees give BOND conditioned for payment thereof within such time as court directs. (Heirs of Doronio versus Heirs of Doronio. 1. conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. No. acting in its general jurisdiction. then. funeral charges c. December 27. Distribution and Partition Rule 90 Distribution and partition of estate Sec. allowance to widow e. Project of partition WHEN PROBATE COURT LOSES JURISDICTION Project of partition – Towards the end of the proceedings in a settlement of estate petition. a project of partition is usually prepared and presented to the court. 1997 ed.R. in an amount approved by the judge. debts b. 71075 for reconveyance and annulment of title with damages is not.. action shall be in the name of all the creditors and permission of the court and filing of bond not necessary H. When order for distribution of residue made • General rule: distribution of the residue to persons entitled thereto after notice and hearing and after payment of – a. 169454. the proper vehicle to thresh out said question. and only then can it be ascertained whether or not a donation had prejudiced the legitimes. o Creditor shall have a LIEN upon any judgment recovered by him for reasonable costs and expenses  When conveyance or attempted conveyance made by deceased in his lifetime in favor of the executor or administrator. the legitime of the compulsory heir or heirs can be established. The net estate of the decedent must be ascertained.

43 SCRA 111 A judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share. . Judge of CFI of Pampanga and Heirs of Jesus Fran vs. a proper motion in the same probate or administration proceedings. provided the prescriptive period has not closed (Mari vs. Salas. Lopez.R.. Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA 307 ): Both involved the issue of the reglementary period within which NON-PARTIES to the partition. No. A probate court has the power to enforce an accounting as a necessary means to its authority to determine the properties included in the inventory of the estate to be administered. G. August 26. 2008) Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned. Once an action for the settlement of an estate is filed with the court. (Quasha Ancheta Pena and Nolasco Law Office vs. Rovira. Cano. Guillas vs. Jr. acting as a special commercial court. can reopen the case. September 16. motion to reopen if it had already been closed. Divinagracia vs. and distribute the estate of a deceased. There was no determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere made by the RTC in this case. 2009) 3.R. 1 SCRA 1271). heir. G. partition. 83 SCRA 1137). and distributed. the law allows a co-owner to exercise rights of ownership over such inchoate right. vs.25 Finality of approval of project of partition by itself does NOT TERMINATE probate proceeding (Timbol vs. Court of Appeals. divided up. RTC Makati. Beyond this. (Silverio. and not through an independent action which would be tried by another court or judge which might reverse a decision or order of the probate court already final and executed and reshuffle properties long ago distributed and disposed of (Guilas vs. G. as long as it is within 30 days (now 15 days) or before order closing the proceedings becomes final. 174873. In fact. Conclusion – if proceeding already closed. Branch 142. (Reyes vs. and the amount thereof exceeds the value of the entire estate. has no jurisdiction to settle. Bonilla. the determination of title or ownership over the subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the probate court as a question of collation or advancement.R. motion to reopen may be filed by a nonparty deprived of his lawful participation. 178933. The RTC of Makati. No. And not even the administrator may take possession of any property that is part of the estate without the prior authority of the Court. 2008) Partial distribution of the estate should not have been allowed. Judge of CFI of Pampanga. there is a pending claim by LCN against the estate. • • Four cases illustrate the proper remedy: Vda de Lopez vs. the properties included therein are under the control of the intestate court. 165744. Probate court loses jurisdiction of an estate under administration only AFTER payment of all debts and remaining estate DELIVERED to heirs entitled to receive the same ( Guilas vs. devisee or any person interested in the estate. August 11. infra). OR b. LCN Construction Corp. Judge of CFI of Pampanga. No. Remedy of heir entitled to residue but not given his share To demand his share through a.

221 SCRA 26 [1991]). CA. although closed and terminated. The validity of a final judgment can be assailed through a petition for relief under Rule 38. CA. To enforce payment of the expenses of partition 3. But if other grounds such as forgery of will are raised. REMEDY OF PRETERITED HEIR The intestate proceedings. annulment of judgment under Rule 47. what is the remedy for inclusion of a partyheir? After the decision became final and executory. • Where judgment has become final. 4. To satisfy the costs when a person is cited for examination in probate proceedings SEVEN STAGES IN SETTLEMENT OF ESTATE 1. the trial judge lost jurisdiction over the case. legatees and heirs in possession of the decedent’s assets 2. assuming the judgment is void for want of jurisdiction. i. and petition for certiorari under Rule 65. Court Order 4. To satisfy the distributive shares of devisees. Civil Code). a probate court cannot issue a writ of execution. Instances when probate court may issue writ of execution As a general rule. Closing SETTLEMENT OF ESTATE STAGES I PETITION .26 • Guilas (43 SCRA 111) compared to Fran (210 SCRA 303): Both involved PARTIES who have not received their shares. The remedy of Mary is to file an INDEPENDENT SUIT against the parties and all other heirs for her share in the subject property.. can still be opened within the prescriptive period upon petition by the preterited heir (Solivio vs.e. Petition 2. 1144. 182 SCRA 1199) Prescriptive period – 10 years. the inclusion of Mary Lyon Martin would be in excess of his authority. Action upon an obligation created by law must be brought within 10 years from the time the right of action accrues (Art. Hearing 3. in order that all the parties in interest can prove their respective claims (Nunal vs. Conclusion – parties to partition agreement who have not received their shares can file a motion for execution within 5 YEARS. Distribution and Partition of Estate 7. Payment of Debts of Estate 6. final judgment cannot be attacked except through a separate action. Claims Against Estate 5. Exceptions: 1. Any modification that he would make.

legatee. Testimony/ies of subscribing witness/es (Rule 76 Secs. Sec. Sec. devisees. 2) Order setting petition for hearing Notice of hearing 1. 1 & 2) Intestate Filing of petition for issuance of letters of administration person (Rule 79. 12) . 3) II HEARING Proof of notice of hearing (Rule 76. known heirs. 2. 5) Petitioner is qualified for appointment (Rule 78. Secs. Sec. devisee. other interested person (Rule 76. 3) 2. executor (Rule 76.27 Testate Filing of petition for allowance of will – by executor. Sec. creditors. Sec. 1 & 6) Proof when testator is petitioner (Rule 76. 5) Evidence for petitioner 1. Secs. 5) (Rule 79. other interested persons (Rule 79. Sec. 5 & 11) Death of decedent Residence at time of death Decedent left no will or there is no competent and willing executor (Rule 79. legatees. Sec. 4). Publication of notice for three consecutive weeks (Rule 76. Sec. Notice by mail or personally to designated or known heirs.

28 Evidence for Oppositor File grounds for contest (Rule 76. 1) Filing of inventory within 3 mos. Sec. 4) Order for issuance of letters of administration (Rule 79. 1 [c]. Sec. (Rule 81. Rule 85. 8) Actions by or against executor or administrator (Rule 87) IV . Sec. Sec. Sec. Sec. 1[a]) Accounting within 1 year (Rule 81. Sec. 10) III COURT ORDER Order or decision allowing will or admitting it to probate Certificate of allowance attached to prove will (Rule 76. Sec. 13) Order for issuance of letters testamentary (Rule 78. 5) Issuance of letters by clerk of court Oath of executor or administrator Filing of executor or administrator’s bond (Rule 81.

etc. Secs. Secs. 1 & 2) Publication of notice for 3 consecutive weeks and posting (Rule 86. mortgages and other encumbrances of property of decedent for paying debts. 12) Judgment approving or disapproving claim (Rule 86.29 CLAIMS AGAINST ESTATE Notice of filing of claims – time for filing not more than 12 mos. Sec. nor less than 6 mos. Secs. 11) Time for payment not to exceed 1 year. Sec. Sec. 7) Order for payment of debts (Rule 88. (Rule 89) VI DISTRIBUTION AND PARTITION OF ESTATE Rule 90 . 3 & 4) Filing of claim and answer thereto (Rule 86. Sec. 9 & 10) Trial of contested claim (Rule 86. from first publication (Rule 86. 15) Sales. 1) Order of payment if estate insolvent (Rule 88. Sec. Sec. extendible for 1 more year (Rule 88. 13) V PAYMENT OF DEBTS OF ESTATE Debts paid in full if estate sufficient (Rule 88.

When trustee appointed 1. or RTC of the province in which the property or some portion thereof affected by the trust is situated Trust defined A trust is a confidence reposed in one person. called the trustee. for the benefit of another called the cestui que trust. 2. 353). the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will – where a trust is actually created by the will by the provision that certain of the property shall be kept together undisposed during a fixed period and for a stated purpose (Lorenzo v. independent of the particular intention of the parties (O’Lao vs Co Co Chit. Written instrument shall be appointed by the RTC in which the will is allowed. Trustees Rule 98 Trustees Sec. 220 SCRA 656). 1. • Exercise of sound judgment by the court in the appointment of a trustee • Although the will does not name a trustee. 3.  Rule 98 applies only to express trust. clear and unequivocal. • Acquiring the trust by prescription A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust. 55 Phil. one which is created by will or written instrument. 64 Phil. Posadas. which is deducible from the nature of the transaction as a matter of intent. or which are superinduced on the transaction by operation of law as matters of equity. with respect to property held by the former for the benefit of the latter. . 729). Tuazon. known to the cestui qui trust (Salinas vs. Will b.30 Approval of final accounting and project of partition Actual distribution or delivery to heirs of their respective shares VII CLOSING Order declaring proceedings closed and terminated ------------------------------------------------- I. such repudiation being open. A trustee necessary to carry into effect the provisions of a a. and not to an implied trust.

The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines. whether appointed by the court or under a written instrument. or due from him on such settlement. Manage and dispose of all such estate according to law and the will of the testator or provisions of the instrument or order under which he was appointed 3.31 1. the trustee is bound to comply with the directions contained in the trust instrument defining the extent and limits of his authority. become the property of the state upon his death. L-16185-86. Distinction: (1) duties of executors or administrators are fixed and/or limited by law while those of the trustee of an express trust are usually governed by the intention of the trustor or the parties. (2) duties of trustees may cover a wider range than those of executors or administrators of the estate of deceased persons. who died without leaving any will or legal heirs. settle his accounts in court and pay over and deliver all the estate remaining in his hands. Conditions of the bond The trustee must file a bond in an amount fixed by the court payable to the Government of the Philippines. Extent of authority of trustee a. This is based on the principle that his authority cannot extend beyond the jurisdiction of the country under whose courts he was appointed. At the expiration of the trust.R. The trustee is insane 3. Grounds for removal and resignation of a trustee The court may remove a trustee on the following grounds: 1. Make and return to the court a true inventory of all real and personal estate that at the time of the inventory shall have come to his possession or knowledge 2. (Araneta vs. may resign his trust if it appears to the court proper so allow such resignation 4. May 31. like an executor or administrator. particularly when the trustee acts as such under judicial authority. Perez. The removal appears essential in the interest of the petitioners 2. to the person or persons entitled thereto 3. . Render a true account of the property in his hands 4. G. In the execution of trusts. 1962). Distinguished from executor/administrator A trustee. if established by contract. 2. Failure to do so shall be cosidered as declining or resigning the trust. Nos. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable to act as one A trustee. Escheat Rule 91 Escheat • Escheat defined Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines. b. J. holds an office of trust. Conditions of the bond: 1. and the nature of his power and duties.

he left properties in the Philippines 3. • Parties in a petition for escheat Escheat proceeding must be initiated by the Solicitor General.32 • Nature of Escheat Proceedings • rests on the principle of ultimate ownership by the state of all property within its jurisdiction. or in which he had estste. 62 Phil. G. 926). especially the actual occupant and the adjacent lot owners shall be personally notified of the proceedings and given the opportunity to present their vaid claims. • Date of hearing not more than 6 months after entry of order. otherwise the property will be reverted to the State (Tan vs. together with the interest and proceeds thereof shall be deposited with the Insular Government of the Philippines as the Philippine Legislature may direct (Act No. it will be reverted to the state. All interested parties. security or other evidence of indebtedness of any kind. • • Publication jurisdictional Publication of the notice of hearing is a jurisdictional requisite. Unclaimed Balances Act. non-compliance with which affects the validity of the proceedings (Divino v. bullion. City of Davao. 1988). 1) . he left no heirs or persons entitled to the same. 2.R.adjacent lot owners shall be personally notified of the proceeding and given opportunity to present their valid claims. if he was a nonresident. L-44347. Parties in Escheat Proceedings An escheat proceeding is initiated by the government through the Solicitor General. Rule 91) 1. Hilario. 2. When to file 2. especially the . Notice and Publication (Sec. 3936. Where to file Regional Trial Court of the place where the deceased was resident. otherwise. and interest thereon with banks in favor of any person unheard from for a period of ten (10) years of more. • Escheat of unclaimed balances Unclaimed balances which include credits or deposits of money. Publication of order at least once a week for 6 consecutive weeks in newspaper of general circulation in the province. No. Requisites for filing of petition • Requisites for filing petition for escheat 1.actual occupants and . Sec. 1. person died intestate 2. September 26. All interested parties.

Claim not made within said time barred forever. 4. No. Roxas Rural Bank. G. appears and files claim thereto within 5 years from date of judgment (Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in asserting their claims. Care and custody of person of the ward and b. Inc. It is the duty of protecting the rights of persons or individuals who because of age or incapability are in an unfavorable position vis-à-vis other parties. Rep. • Basis of Guardianship (Parens Patriae) Where minors are involved. after deducting reasonable charges of care of estate. L-16016. 30. or c.R. 1. All or any member of such creditors or depositors or banks.) 3. 1. • Guardian – a person in whom the law has entrusted the custody and control of the person or estate or both of an infant. period for filing a claim Remedy of respondent against escheat petition Motion to dismiss for failure to state a cause of action. The guardian of the estate of a non-resident shall have the management of his estate within the Philippines. Republic vs. No. 65 Phil. PNB.. G. Remedy of respondent against petition. widower or other person entitled to such estate who 2. municipality or city accountable to him for proceeds. in which shall be joined as parties the bank and such creditors or depositors. insane.. the State acts as parens patriae. vs. Management of his estate. widow. 1988) 3. or other person incapable of managing his own affairs. 3. Dec. Devisee. Court of First Instance of Manila and Pres. 65 Phil. • Purpose of Guardianship Safeguard the rights and interests of minors and incompetent persons Courts should be vigilant to see that the rights of such persons are properly protected. where petition for escheat does not state facts which entitle petitioner to the remedy prayed for (Go Poco Grocery vs. otherwise they may lose them forever in a final judgment. legatee. 443. L-30381. or other grounds for dismissal under the rules (Municipal Council of San Pedro. and no other court than that in which such guardian was appointed shall have jurisdiction over the guardianship (Sec. may be included in one action. General powers and duties of guardians a. K. August 30. Pacific Biscuit Co. Rule 96) . The person who acts is called the guardian and the incompetent is called the ward. Filing of claim to estate (Sec.33 Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the name of the People of the Philippines in the Regional Trial Court of the province where the bank is located. Guardianship • Guardianship – a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs. (Id. Management of his estate only d. 318).R. 1961). Colegio de San Jose. shall have possession and title thereto or if sold. Rule 91) 1.. Sec.. 4. Laguna vs.

without the necessity of court appointment. Relative or other person on behalf of the minor 2. as in the case of the parents over the persons of their minor children. 1. or in his absence the mother. the court may. Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for guardianship over the person. with the duties and obligations of guardians under these Rules. however. shall be his legal guardian. or a person appointed by the court for the person and/or property of the ward to represent the latter in all civil acts and litigation . 7. with respect to the property of the minor children not exceeding P50.34 KINDS OF GUARDIANS 1) Legal Guardian – such by provision of law without the need for judicial appointment. the father or the mother. (c) render a true and just account of all the property of the ward. If the market value of the property or the annual income of the child exceeds P50. No. (2) Guardian ad litem. 2. RGM) 1. for the appointment of a general guardian for the person or estate or both of such incompetent. Conditions of the bond of the guardian (a) Within 3 months after the issuance of letters of guardianship make inventory of all the property. but in no case less than 10% of the value of such property or annual income. appoint another suitable person. ( Sec. (3) the Judicial guardian. • Who may petition for appointment of guardian of minor? (Sec. Rule on guardianship over minors • Governing rule on guardianship of minors Guardianship of minors as distinguished from “incompetents” other than minority is now governed by the RULE ON GUARDIANSHIP OF MINORS (A. 003-03-05-SC).(Sec. friend. 1. Rule 94) 3. of a minor. or other person on behalf of incompetent who has no parent or lawful guardian. RGM) 2. and shall file the petition required by Section 2 hereof. Petitions for guardianship of incompetents who are not minors shall continue to be governed by Rules 92-97 and heard and tried by regular Regional Trial Courts. When the property of the child is worth more than P2.000 in value. 16.00. the father or the mother shall be considered guardian of the child’s property. For good reasons.M. Rule 93) Relative. Rule 93) • Bond of parents as guardians of property of minor.000.00. and (d) perform all orders of the court (Sec.000. Rules 92-97 may therefore be deemed modified by the RGM. (b) faithfully execute the duties of the trust. to guarantee the performance of the obligations prescribed for general guardians. • Parents as guardians When the property of the child under parental authority is worth P2. • Who may petition for appointment of guardian of incompetent ? (Sec.000.00 or less. property or both. who is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor. the parent concerned shall furnish a bond in such amount as the court may determine. Minor himself if 14 years of age or over .

the court acquired no jurisdiction to appoint a guardian (Nery vs. neglected. 2. orphaned.35 for the appointment of a general guardian over the person or property.R. The state shall provide alternative protection and assistance thru foster care or adoption for every child who is a foundling. or abandoned. The reason is simple: because their presence is not essential to the proceedings for appointment of a guardian. They will only insist that the supposed minor or incompetent is actually capacitated to enter into contracts. 44 SCRA 431 [1972]). Without such notice. Rule 93) 1. The petition may also be filed by the Secretary of Social Welfare and Development and Secretary of Health in the case of an insane minor person who needs to be hospitalized. or both. of such minor. Present tendency – more toward the promotion of the welfare of the child. a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. G. legitimated. RGM) NOTICE IS JURISDICTIONAL Service of notice upon the minor if 14 years of age or over or upon the incompetent is jurisdictional. • Objectives of Rule on Adoption a. Under the law now in force. • Jurisdictional facts (Sec. Best interests of child – paramount consideration in all matters relating to his care. and enhancement of his opportunities for a useful and happy life. custody and adoption. 3) – NO PUBLICATION REQUIRED Notice of hearing of the petition shall be served on 1. . It was intended to afford persons who have no child of their own the consolation of having one by creating thru legal fiction the relation of paternity and filiation where none exists by blood relationship. 2008) L. April 30. 2. so as to preserve the validity of said contracts and keep the supposed minor or incompetent obligated to comply therewith. The rules do not necessitate that creditors of the minor or incompetent be likewise identified and notified. Lorenzo. persons mentioned in the petition residing in the Philippines. Adoption • Nature and concept of adoption Adoption is a juridical act. Pabale. • Purpose of Adoption Adoption used to be for the benefit of the adoptor. acknowledged natural children or children by legal fiction is no longer a ground for disqualification to adopt. incompetent himself * minor if 14 years of age or over (Sec. b. incompetency of person for whom guardianship is sought. having legitimate. domicile • Notice of application and hearing (Sec. 8. 151243. 2. (Alamayri vs. No.

No. (d) A person of legal age if.36 • Laws on adoption The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA 8043 (Inter-Country Adoption Act of 1995). 1-25) and inter-country adoption (Secs. That no proceedings shall be initiated within six (6) months from the time of death of said parent(s) (Section 8) Family Court of the place where RTC having jurisdiction over Where to file application . 26-32). (b) Any alien possessing the same qualifications as above stated for Filipino nationals. Who may be adopted The following may be adopted: Only a legally free child may (a) Any person below eighteen be the subject of inter-country (18) years of age who has adoption been administratively or judicially declared available for adoption. • Rule on Adoption (A. 2002 – Guidelines issued by the Supreme Court in petitions for adoption. said person has been consistently considered and treated by the adopter(s) as his/her own child since minority. The Rule repealed Rules 99-100. August 22. Distinguish domestic adoption from inter-country adoption KIND Type of Proceeding Who may adopt Domestic Adoption Judicial Adoption The following may adopt: (a) Any Filipino citizen. (c)The guardian with respect to the ward. (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy. (e) A child whose adoption has been previously rescinded. or (f) A child whose biological or adoptive parent(s) has died. Provided. Inter-country Adoption Extrajudicial Adoption An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child. It covers domestic adoption (Secs. prior to the adoption.M. (b) The legitimate son/daughter of one spouse by the other spouse. 1. 02-6-02-SC).

of good moral character . CA. Any ALIEN possessing same qualifications. rectification of simulated birth or declaration that the child is a foundling. b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses signified his consent thereto) c) if the spouses are legally separated from each other. consent of biological parents. • Whose consent necessary 1. subject to certain conditions. in the country of the prospective adoptive parents. (Section 10) What petition for adoption may include May include prayer for change of Only petition for adoption.at least 16 yrs. even if they are known. abandoned. biological parents of adoptee. Any FILIPINO . name. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other.has not been convicted of any crime involving moral turpitude . or with the InterCountry Adoption Board.in a position to support and care for his children in keeping with means of the family. 298 SCRA 128 [1998]). Supervised trial custody period in the Philippines for at least six (6) months (Court may reduce period or exempt parties from trial custody) (Section 12) Supervised trial custody period in the Philippines for at least six (6) months.37 the adopter resides the child. 2.in possession of full civil capacity and legal rights . is not necessary if they have ABANDONED the child (Lang vs. . whether governmental or an authorized and accredited agency.of legal age .emotionally and psychologically capable of caring for children . joint parental authority shall be exercised by the spouses. through an intermediate agency. • HUSBAND AND WIFE MUST JOINTLY ADOPT EXCEPTIONS: a) if one spouse seeks to adopt legitimate child of the other. (Section 14) Supervised trial custody 2. if known *However. older than the adoptee * may be waived when adopter is biological parent of adoptee or is spouse of adoptee’s parent . Domestic Adoption • Who may adopt 1. dependent or neglected child.

5. • adoptee. 1986) • An illegitimate child. G. may use the surname of her natural mother as her middle name . 4. L-32181. if living with him. if 10 years of age or older legitimate or adopted children of adopter or adoptee. the adopters can make for themselves an heir but they cannot make one for their relatives. if 10 years of age or older spouse of adopter or adoptee Change of name In case petition also prays for change of name. the parental authority over the adopted shall be exercised jointely by both spouses. G. and (3) The adopted shall remain an intestate heir of his parents and other blood relatives.court CONVINCED from trial custody report and evidence adduced that . except that if the adopter is the spouse of the parents by nature of the adopted. 189. (2) The parental authority of the parents by nature over the adoped shall terminate and be vested in the adopters.over 18 years of age .(Republic vs. 2005.38 2. including the right of the adopted to use the surname of the adopters. full name by which child is to be known • PUBLICATION JURISDICTIONAL Adoption is action in rem – involves the status of persons. No. title or caption must contain: 1. No. aliases of other names by which child has been known 3. Family Code) • Adoption strictly between adopter and adopted If adopting parent should die before adopted child. Adopted child is not related to the deceased in that case because filiation created by fiction of law is exclusive between adopted and adopter. if 10 years of age or older illegitimate children of adopter. March 31. effects of adoption (1) For civil purposes the adopted shall be deemed to be a legitimate child of the adoptioners and both shall acquire the reciprocal rights and obligations arising from the relationship of parents and child.R.DECREE OF ADOPTION issued which shall take effect as of date original petition filed even if petitioners DIE before issuance a.R. 148311. March 5. instances when adoption may be rescinded • RESCISSION OF ADOPTION BY ADOPTEE Petition VERIFIED Filed by adoptee . By adoption. Valencia.adoption shall redound to BEST INTERESTS of adoptee . (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia.) b. (Art. registered name of child 2. upon adoption by her natural father. • Decree of Adoption If supervised trial custody SATISFACTORY and . 3. latter cannot represent the adopter in the inheritance from the parents and ascendants of the adopter.

Sec. b. as of the date of judgment of rescission. c. 10. after recovery from incompetency. Sec.with assistance of DSWD. sexual assault or violence 4.39 . Secs. when allowed Inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad is allowed by law if such children cannot be adopted by qualified Filipino citizens or aliens. attempt on life of adoptee 3. after reaching age of majority If INCOMPETENT – within 5 yrs. the different child-care and placement agencies. Sec. (c) succession rights revert to their status prior to adoption. on its own. Effects of rescission of adoption (Rule on Adoption. but vested rights acquired prior to rescission are to be respected (d) court shall order adoptee to use the name stated In the original birth or foundling certificate (e) court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate the original birth or foundling certificate 3. being for best interests of child. Its functions are (1) receive the application. Inter-country Adoption a. The latter. functions of the RTC (Family Court) A verified petition for inter-country adoption may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. abandonment or failure to comply with parental obligations • • Adoption. “best interest of the minor” standard . adoptive agencies as well as non-governmental organizations engaged in child care and placement activities (RA 8043. Rule on Adoption. (b) reciprocal rights and obligations of the adopter and adoptee to each other are extinguished.by guardian or counsel. 28 & 32)) The Inter-Country Adoption Board is the central authority in matters relating to intercountry adoption. if over 18 but incapacitated Grounds committed by ADOPTER: 1. however. repeated physical and verbal maltreatment by adopter despite having undergone counseling 2. or the legal custody of DSWD is restored if the adoptee is still a minor or incapacitated. if known. can receive the original application (RA 8043. (b) assess the qualification of the prospective adopter and (3) refer its findings. if minor . c. not subject to rescission by ADOPTER Time within which to file petition If MINOR – within 5 yrs. 23) (a) parental authority of the biological parent of the adoptee. It is the policy-making body for purposes of carrying out the provisions of the law. in consultation and coordination with the DSWD. to the Inter-Country Adoption Board. 4). if favorable.

it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. The officer or name of the person by whom he is so imprisoned or restrained. 1. It is a remedy intended to determine whether the person under detention is held under lawful authority (Sombong v. Specifically: 1. CA.40 Inter-country adoption is allowed only when the same shall prove beneficial to the child’s best interests. This writ may issue even if another remedy which is less effective may be availed of – failure by accused to perfect his appeal before the CA does not preclude recourse to the writ. No. June 27. 1) 1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty.R.R. Certainly. CA. 1966). or 3. Sec. 24 SCRA 663 [1968]). 21. G. to obtain immediate relief from illegal confinement 2. That void judgment may be challenged by collateral attack which precisely is the function of habeas corpus. if known. .. 2005) When constitutional rights disregarded – writ may issue Exceptional remedy to release a person whose liberty is illegally restrained such as when the constitutional rights of the accused are disregarded. Republic. 245 SCRA 677). All cases of illegal confinement of detention 2. b. by which any person is deprived of his liberty. and shall serve and protect his/her fundamental rights (RA 8043. The place where he is so imprisoned or restrained. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused. Contents of the petition a. c. 2) Only a child legally available for domestic adoption may be the subject of inter-country adoption (Rule on Adoption. CA. 29). It is a summary remedy. to deliver them from unlawful custody Essentially a writ of inquiry and is granted to test the right under which a person is detained (Velasco v.( Landingin vs. CA. The writ may be granted upon a judgment already final (Chavez v. (Caballes vs. G. No. by which the rightful custody of any person is withheld from the thereto • person entitled Purpose of habeas corpus – relieve a person from unlawful restraint. in keeping with the means of the family. the adopter should be in a position to support the would-be adopted child or children. Financial qualification in adoption Since the primary consideration in adoption is the best interest of the child. February 23. Sec. 163108. to liberate those who may be imprisoned without sufficient cause 3. Writ of Habeas Corpus Rule 102 Habeas Corpus • To what habeas corpus extends (Sec. 164948. 2006) M.

4) a. Contents of the Return a. However. at what time. . under process issued by a court or judge or 2. the Court’s order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. 1962). Whether he has or has not the party in his custody or power. and has transferred such custody or restraint to another – to whom. Salazar. or other processes upon which the party is held c. by virtue of a judgment or order of a court of record and 3. (Sec. • Order to produce body not a grant of the remedy of habeas corpus In a habeas corpus petition. For asserting or vindicating denial of right to bail (Enrile vs. convicted of an offense or 3. G.R. When not proper/applicable a. No. 10) 3. Copy of the commitment or caue of detention of such person. If it can be procured without any legal authority.the authority and the true and whole cause thereof. Distinguish peremptory writ from preliminary citation Peremptory writ of habeas corpus – unconditionally commanding the respondent to have the body of the detained person before the court at a time and place therein specified. If the party was in his custody. May 30. When the person alleged to be restrained of his liberty is in the custody of an officer 1. order. (Sotto vs. for what cause and by what authority such transfer was made. Cabuay. August 25. If the party is in his custody or power.41 d. When a person is 1. If the party. suffering imprisonment under lawful judgment  his discharge shall not be authorized 6. with a copy of the writ. or under restraint -. 160792. this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. such fact shall appear. 186 SCRA 217 [1990]) b. render the judgment or make the order  the writ shall not be allowed b. 3) 2. and is not produced – nature and gravity of sickness or infirmity d. The respondent must produce the person and explain the cause of his detention. or under restraint. 2005 4. When writ disallowed/discharged authorized (Sec. charged with or 2. It is not a writ of error. 5. Distinguish from writ of amparo and habeas data (See Table) WRIT OF DEFINITION HABEAS CORPUS “Habeas corpus” is a AMPARO It is a remedy available HABEAS DATA It is a remedy . (Sec. the court or judge had jurisdiction to issue the process. the order to present an individual before the court is a preliminary step in the hearing of the petition. (In the Matter of the Petition for Habeas Corpus of Alejano vs. Thus. etc. etc. For correcting errors in appreciation of facts and/or in the application of law. b. Preliminary citation – requiring the respondent to appear and show cause why the peremptory writ should not be granted. Director of Prisons. execution.

By the aggrieved party. and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee. PETITIONER Sec. liberty and security is violated or threatened with violation 1. family. or by some other person in his behalf Sec. 1 To any person whose right to life. home and correspondence of the aggrieved party. or of a private individual or entity engaged in: 1. or of a private individual or entity. or of a private individual or 2. Sec. Immediate family. 1 To all cases of illegal confinement or detention: Sec. General rule: or by any qualified person or entity in the The aggrieved party order provided in Sec. to do. collecting or storing data or information regarding the person. 2 AVAILABILITY Sec. . with the day and cause of his capture and detention. submit to. 1 To any person whose right to privacy in life. to any person whose right to life. 2 Sec. 3 By the party for whose relief it is intended. or of a private individual or entity engaged in the gathering. home and correspondence of the aggrieved party. omission of a public or official or employee. 2 Except: In cases of extralegal killings and enforced disappearances: 1. commanding him to produce the body of the prisoner at a designated time and place. liberty. Storing Of data or information regarding the person family. and receive whatsoever the court or judge awarding the writ shall consider in that behalf. available to any person whose right to privacy in life. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. custody of any person is withheld from the person entitled thereto. The writ covers extralegal killings and enforced disappearances or threats thereof. By which any person by an unlawful act or is deprived of his liberty. By which the rightful entity.42 Latin phrase which literally means “you have the body. Gathering 2. Collecting 3.” It is a writ directed to the person detaining another.

1. etc. 9 If the writ cannot be served personally on respondent. 12 Hearing on return Not later than 7 days Not later than 10 from date of issuance of days from date of writ issuance of writ Sec. 6 Indigent petitioner exempt from docket fees Sec. EXTENT OF ENFORCEABILITY SC. RTC: 1. where detainee is detained . 3 SC. Which has jurisdiction over the place where data or information is gathered. Where petitioner resides. 3 SC. or 2. 7 Anywhere in the Philippines Anywhere in the Philippines Sec. RTC of the place where the threat. In default of no. All at the option of petitioner. the rules on substituted service shall apply HOW SERVED Sec. 2 On any day and at any time Sec. ascendant. 3 On any day and at any time. CA and SB Sec. CA and SB SETTING OF HEARING Sec. Where respondent resides. descendant or collateral relative within the 4th civil degree of consanguinity or affinity. 7 Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found. Petitioner exempt from docket fees Sec. CA and SB: anywhere in the Philippines RTC: only within its judicial district WHEN TO FILE/ EXEMPTION FROM DOCKET FEES Sec. 8 If the writ cannot be served personally on respondent. the rules on substituted service shall apply Sec. or 3. or has not the prisoner in custody then the service . VENUE If filed with RTC.43 2. act or omission was committed or any of its elements occurred.

and (l) Petition for certiorari. (e) Counterclaim or cross-claim. justice or judge shall proceed to hear the petition ex parte -may be reasonably extended by the court for justifiable grounds Sec. 13 (a) Motion to dismiss. (i)Intervention.cannot be extended except on highly meritorious grounds EFFECT OF FAILURE TO FILE RETURN Sec. (i) Intervention. (h) Motion to declare respondent in default. position paper and other pleadings. (b) Motion for extension of time to file return. 12 In case respondent fails to file a return. (f)Third-party complaint. (f) Third-party complaint. (b) Motion for extension of time to file return. (g) Reply. affidavit. (c) Dilatory motion for postponement. and (l) Petition for PROHIBITED PLEADINGS AND MOTIONS Sec. granting petitioner such relief as the petition may warrant unless the court in its discretion requires petitioner to submit evidence. opposition. affidavit. the court. opposition. 14 In case respondent fails to return. (g)Reply. (h) Motion to declare respondent in default. (c) Dilatory motion for postponement. the court. 10 Sec. (k) Motion for reconsideration of interlocutory orders or interim relief orders. justice or judge shall proceed to hear the petition ex parte. (j) Memorandum. . Sec. (d) Motion for a bill of particulars. 9 Signed and shall also Verified written return Verified written return be sworn to if the within 5 work days from within 5 days from prisoner is not produced service of writ service of writ . (e) Counterclaim or cross-claim. (k)Motion for reconsideration of interlocutory orders or interim relief orders.44 shall be made on any person having or exercising such custody FILING OF RETURN Sec. 11 (a) Motion to dismiss. (j)Memorandum. 9 Sec. position paper and other pleadings. (d) Motion for a bill of particulars. mandamus or prohibition against any interlocutory order.

justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. Unless for good cause shown. the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court. If the allegations in the petition are proven by substantial evidence. 15 When the court or judge has examined into the cause of caption and restraint of the prisoner. the court. Sec. (c) Production Order. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. but such discharge shall not be effective until a copy of Sec. JUDGMENT Sec. Sec. 15 The hearing on the Same as WOA petition shall be summary. he shall forthwith order his discharge from confinement.45 certiorari. mandamus or prohibition against any interlocutory order. the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. in which event the court shall make an order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. and is satisfied that he is unlawfully imprisoned or restrained. 14 (a) Temporary Protection Order. The court or judge must be satisfied that the person's illness is so grave that he cannot be produced without any danger. 12 1. 18 The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 13 Sec. . INTERIM RELIEFS SEC. 2. (d) Witness Protection Order. 16 Same with WOA with an addition that upon finality. However. the hearing is adjourned. justice or judge within 5 working days. SUMMARY HEARING Sec. (b) Inspection Order.

22 When a criminal action Same as WOA is filed subsequent to the filing of a petition for the writ. the prisoner shall be forthwith released. the latter shall be consolidated with the criminal action. Appeal may raise questions of fact or law or both. 21 When a criminal action Same as WOA has been commenced. 15 in relation to Sec. CONSOLIDATION Sec. The reliefs under the writ shall be available by motion in the criminal case. Period of appeal shall be 5 working days from the date of notice of the adverse judgment. 2.46 the order has been otherwise. 23 Sec. EFFECT OF FILING CRIMINAL ACTION Sec. APPEAL Sec. 19 Sec. 19 Sec. 39 of BP 129: Rule 45 by petition for Same as WOA review on certiorari with 48 hours from notice of peculiar features: judgment appealed from by ordinary appeal 1. the privilege served on the officer or shall be denied. 20 Same as WOA Sec. civil or administrative actions. 3 Rule 41 and Sec. no separate petition for the writ shall be filed. 2 Sec. Same priority as habeas corpus cases INSTITUTION OF SEPARATE ACTIONS Sec. If the officer or person detaining the prisoner does not desire to appeal. 3. When a criminal action and a separate civil action are filed subsequent to a petition . person detaining the prisoner. 21 This Rule shall not preclude the filing of separate criminal.

No. 2006) • Habeas corpus in custody cases . (In the Matter of the Petition for Habeas Corpus of Kunting. 2001).N. 01-1-03-SC. thus voiding the sentence as to such excess. However. 2000) Writ of habeas corpus cannot be issued once person is charged with a criminal offense • Under Section 1. the latter shall be consolidated with the criminal action. the writ of habeas corpus extends to “all case of illegal confinement or detention by which any person is deprived of his liberty. 307 SCRA 605 [1999]) • No right to bail where applicant is serving sentence by reason of final judgment Respondent judge contends that under Section 14. the detention is proven lawful. 001024-RTJ). • Habeas corpus as a post-conviction remedy The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. he has the discretion to allow Te to be released on bail.R.47 for a writ of amparo. June 21. 2005) • Marital rights including co-venture and living in conjugal dwelling may not be enforced by the extraordinary writ of habeas corpus. 139808. Majaducon. Andal v. as a consequence of a judicial proceeding. May 12. as a post-conviction remedy. Dimagiba. (Go vs. or by which the rightful custody of any person is withheld from the person entitled thereto. RTJ-02-1698 (Formerly OCA IPI No. 2001 in G. where the applicant is serving sentence by reason of a final judgment.R. the Court reiterates its pronouncement in its Resolution of February 19. June 23. then the habeas corpus proceedings terminate. 2005. Bildner. Nos. G. People. et. The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.” The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person. No. any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person. 167193.R.M. A. Rule 102 of the Rules of Court. and if found illegal.al. however. . However. the prisoner shall be forthwith released (Sec. G. No. Rule 102 of the Rules of Court. it may be allowed when. G. • Grant of writ When court is satisfied that prisoner does not desire to appeal. If. No. (Ilusorio vs. as in the case involved in the present controversy.R. (2) the court had no jurisdiction to impose the sentence. 151876. 15. the court orders the release of the detainee.M. or (3) the imposed penalty has been excessive. Rule 102) • Period to appeal – within 48 hours from notice of judgment or final order appealed from (A. (Vicente vs. 145715-18 that Section 14. Rule 102 of the Rules of Court applies only to cases where the applicant for the writ of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance. July 19. April 19.

of the child. supervening events may bar his release or discharge from custody. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar to objections on illegal arrest. the child’s welfare is the supreme consideration. appropriate remedy of accused to secure release from prison is petition for habeas corpus • Bernarte vs. Hence. lack of or irregular preliminary investigation. private respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. 2006) • Retroactive effect of favorable law . Filing of charges and issuance of warrant of arrest cures defect of invalid detention 2. G. both parents are still entitled to the custody of their child. 162734. Where decision already final.People vs. CA. such as filing of complaint and issuance of order denying petition to bail. although the couple is separated de facto. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody. among others. . Remedy: motion to quash warrant of arrest and/or information. No. August 29. Remedy: motion to quash the information and/or warrant of arrest 3. In a petition for habeas corpus. 287 SCRA 581 (1998) – Kidnapping & serious illegal detention 1.R. In the present case. Filing of bond for temporary release is waiver of illegality of detention • Paredes vs. Habeas corpus and certiorari may be ancillary where necessary to give effect to supervisory power of higher courts 2. SB. CA. his welfare shall be the paramount consideration. Further. Caco. Filed motion for modification of sentence pursuant to RA 7659 and People v. (Salientes vs. 193 SCRA 464: absence of preliminary investigation not a ground for habeas corpus. Once person detained is duly charged in court.48 Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. 4. CA. Certiorari – reaches record but not the body 4. or ask for investigation/reinvestigation Note: Rule 114. 269 SCRA 271 (1997) 1. Simon that where marijuana less than 200 grams penalty is prision correccional 3. Habeas corpus – reaches body and jurisdictional matters but not the records 3. In the absence of a judicial grant of custody to one parent. the remedy of habeas corpus is available to him. 245 SCRA 667 (1995) Even if arrest illegal. provided he raises them BEFORE entering his plea • Larrañaga vs. 237 SCRA 685 1. Absence of preliminary investigation – will not nullify information and warrant of arrest • Galvez vs. respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Petition granted – provisions of RA 7659 favorable to accused should be given retroactive effect. Not appropriate for asserting right to bail – file petition to be admitted to bail • Velasco vs. Under Article 211 of the Family Code. he may no longer question his detention by petition for habeas corpus 2. the issue of custody has yet to be adjudicated by the court. Abanilla. CA. Sec. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425) 2. 263 SCRA 323 (1996) 1.

G. ( Fletcher vs. 2009) The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. No. January 29. the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held.R.A. (In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. NO.M. UDK-14071. illegal restraint of liberty. Nonetheless. Luisa Villanueva. of a detained person renders the petition for habeas corpus moot and academic. 169482. No. like the Deportation Board of the Bureau of Immigration. the record shows that Judge Perello granted the writs of habeas corpus even without the pertinent copies of detention and judgment of conviction. RTJ-05-1952.. Bureau of Corrections. January 22. His remedy would be to quash the information and/or the warrant of arrest duly issued.R. A. the pendency of another criminal case is a ground for the disqualification of such convict from being released on parole. A convict may be released on parole after serving the minimum period of his sentence. since the main prayer in a petition for habeas corpus relates to the release or discharge of the detainee.49 • Recent Jurisprudence Section 1. 2008) Notably. No. The provisional or temporary release of Gao Yuan also effectively granted the petition for habeas corpus insofar as the discharge of the detainee is concerned. A prime specification of an application for a writ of habeas corpus. or by which the rightful custody of any person is withheld from the person entitled thereto. Matter OCA-IPI No. Judge de Castro. This is contrary to the provisions of Section 3(d) of Rule 102 of the Rules of Court. vs. (a) there has been a deprivation of a constitutional right resulting in the restraint of a person. G. 170497. July 17. he may no longer question his detention through a petition for issuance of a writ of habeas corpus. we agree with the OSG that petitioner is not entitled to the issuance of the writ. (b) the court had no jurisdiction to impose the sentence. December 24. RTJ-06-2018 (Formerly Adm. and not merely nominal or moral. 168728. No. A. He is therefore not entitled to the writ of habeas corpus. 2007) In general. 2007) Once a person detained is duly charged in court. 2008) Strict compliance with the technical requirements for a habeas corpus petition as provided in the Rules of Court may be dispensed with where the allegations in the application are sufficient to make out a case for habeas corpus. Rule 102 of the Rules of Court provides that a petition for the issuance of a writ of habeas corpus may be availed of in cases of illegal confinement by which any person is deprived of his liberty. No. The Rules clearly require that a copy of the commitment or cause of detention must accompany the application for the writ of habeas corpus. is an actual and effective. as a consequence of a judicial proceeding. The writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. The writ may also be issued where. et al. G. The term “court” in this context includes quasi-judicial bodies . as such sentence is void as to such excess. ( Barredo vs. The Director of Bureau of Corrections . Vinarao. August 3. 05-2360-RTJ). (Office of the Solicitor General vs. (Office of the Court Administrator vs. However. Judge Perello . 2007) Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and illegal possession of firearms. The term “court” includes quasi-judicial bodies or governmental agencies authorized to order the person’s confinement. August 2. whether permanent or temporary. The Director. in fact.M. The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record the writ of habeas corpus will not be allowed. or (c) an excessive penalty has been imposed. The general rule is that the release. 8353 in Behalf of Rogelio Ormilla. ( In the Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.R.

of governmental agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it.(Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009) A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the rightful custody of person is withheld from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the custody of her ward. (Hernandez vs. San Juan-Santos, G.R. No. 166470, August 7, 2009)

7. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) – took effect May 15, 2003
a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The petition shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the best interests of the minor. c. However, if it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children. d. The court may issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. • Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors

There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction to issue writs of habeas corpus involving the custody of minors. ( In the Matter of Application for the Issuance of a Writ of Habeas Corpus: Thornton vs. Thornton , G.R. No. 154598, August 16, 2004) In fact, the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. (Madriňan vs. Madriňan, G.R. No. 159374, July 12, 2007)

N. Writ of Amparo (A.M. No. 07-9-12-SC) 1. Coverage (See Table under Definition)
• •

October 24, 2007

“Extralegal killings” – killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. “Enforced disappearances” – attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.

2. Distinguish from habeas corpus and habeas data (See Table)

51 3. Differences between Amparo and search warrant
The production order under the Amparo Rule should not be confused with a search warrant or law enforcement under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people as such respondents. Instead, the amparo production order may be limited to the production of documents or things under Sec. 1, Rule 27 of the Rules of Civil Procedure ( Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008).

4. Who may file (See Table) 5. Contents of return
(a) Lawful defenses to show that respondent did not violate or thereaten with violation the right to life, liberty or security of the aggrieved party, through any act or omisson . (b) Steps or actions taken by the respondent to determine the facts or whereabouts of the aggrieved party and person /s responsible for the threat, act or omission; (c) All relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party; (d) If respondent is a public official or employee, the return shall further state the actions that have been or will be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. A general denial of the allegations in the petition shall not be allowed.

6. Effects of failure to file return (See Table) 7. Omnibus waiver rule
Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the return, otherwise, they shall be deemed waived (Sec. 10).

8. Procedure for hearing (See Table on Summary Hearing) 9. Institution of separate action (See Table) 10. Effect of filing of a criminal action (See Table) 11. Consolidation (See Table) 12. Interim reliefs available to petitioner and respondent (See Table) 13. Quantum of proof in application for issuance of Writ of Amparo


Burden of proof and standard of dilligence required – The parties shall establish their claims by substantial evidence. Respondent private individual or entity – prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. Respondent public official or employee – prove that extraordinary diligence as required, etc. was observed in the performance of duty. - cannot invoke presumption that official duty has been regularly performed to evade ressponsibility or liability (Sec. 17) • Writ of Amparo provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. • Jurisprudence

The threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas vs. Napico Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008) Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo. ( Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008) While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life. First, the right to security of person is “freedom from fear.” (Universal Declaration of Human Rights [UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The Philippines is a signatory to both the UDHR and the ICCPR. Second, the right to security of person is a guarantee of bodily and psychological integrity or security. (Article III, Section 12 of the 1987 Constitution) Third, the right to security of person is a guarantee of protection of one’s rights by the government. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. (The Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

Effect of filing a criminal action (See Table) 10. 08-1-16-SC) 1. priviliged communication. or when the data or information cannot be divulged to the public due its nature or privileged character (Sec. Scope of writ (See Table under Definition) 2. No. Distinguish from Habeas Corpus and Amparo (See Table) 4. In case of threats. liberty or security of the aggrieved party. Who may file (See Table) 5. A general denial of the allegations in the petition shall not be allowed. (iii) currency and accuracy of the data and information held. suppression or destruction of the database or information or files kept by the respondent. 6. if known. Writ of Habeas Data (A. in possession or in control of the data or information. in possession or in control of the data or information subject of the petition -(i) a disclosure of the data or information about petitioner. and the person in charge. and purpose of its collection. (e) The reliefs prayed for.53 O. registers or databases. Contents of return (a) Lawful defenses such as national security. and (c) other allegations relevant to the resolution of the proceeding. (ii) steps or actions taken by respondent to ensure the security and confidentiality of the data or information. 8.12). rectification. Institution of separate action (See Table) • Jurisprudence . Instances when petition heard in chambers Hearing in chambers may be conducted where respondent invokes the defense that the release of the data or information shall compromise national security or state secrets. Contents of petition (a) The personal circumstances of the petitioner and the respondent. (b) If respondent in charge. 2008 3. the relief may include a prayer for an order enjoining the act complained of. the government office. Availability of writ (See Table under Availability) – February 2. (d) The location of the files. 7. confidentiality of the source of information of media and others. (c) The actions and recourses taken by the petitioner to secure the data or information. 6).M. Consolidation (SeeTable) 9. state secrets. nature of such data or information. which may include the updating. (b) The manner the right to privacy is violated or threatened and how it affects the right to life. and (f) Such other relevant reliefs as are just and equitable (Sec.

we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life. name or names or alias of applicant b. • Nature of proceeding To establish the status of a person involving his relation with others. RA 9048 and Rule 108 Rule 103 Rule or Law Change of Name Rule 108 R.. the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition ” that this Court . objective is the prevention of fraud. Judge Rosario. Civil Code – no person can change his name or surname without juridical authority Involving substantial changes. or subject of deportation order 1. G.182484. his legal position in. In these lights. new name asked for Reason: change of name a matter of public interest .petitioner might be in rogues gallery or hiding to avoid service of sentence or escaped from prison . Both title or caption and body shall recite a. Change of Name Rule 103 Change of Name • Purpose of Rule Under Art. No. 376. etc. or. Alien . much less demonstrated.54 Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate facts in a petition for the issuance of a writ of habeas data: Specifically. Adopted child (Rep. 2008) P. has not also been shown.R.if alien might have given case for deportation.A. 2. The necessity or justification for the issuance of the writ. liberty or security. not one temporarily staying • Jurisdictional requirements 1. June 17.in the course of drafting the Rule on habeas data . cause for which change of name is sought c. any need for information under the control of police authorities other than those it has already set forth as integral annexes.domiciled in the Philippines. Wong. Publication of petition for 3 consecutive weeks in newspaper. 9048 Cancellation/ Correction Clerical Error Act of Entries in the Civil Registry . 209 SCRA 189) 2. based on the insufficiency of previous efforts made to secure information. Differences under Rule 103. with regard to the rest of the community • Who may file petition “Person” – all natural persons regardless of status 1. v. (Tapuz vs. In sum. the outright denial of the petition for the issuance of the writ of habeas data is fully in order. that is. The petition likewise has not alleged.had in mind in defining what the purpose of a writ of habeas data is not.

Petition shall be supported by the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed. (b) The cause for which the change of petitioner's name is sought. which are sought to be corrected and/or the change sought to be made. event. (Section 3) 1. Local civil registrar of the place where the interested party is presently residing or domiciled. 2. order or decree concerning the civil status of persons which has been recorded in the civil register. (c) The name asked for.55 Subject Matter Change of full name or Cancellation or family name (substantial correction of civil corrections) registry entries (substantial corrections) Change of first name or nickname and corrrection of civil registry entries (only typographical or clerical errors) Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname. . corresponding civil registry is located. (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change Who may File A person desiring to change his name. (Section 2) (a) Facts necessary to establish the merits of petition. Philippine Consulate Contents of petition (a) That petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing. (Section 1) Any person interested in any act. 3. Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. (Section 1) Venue RTC of the province in RTC of city or province which petitioner resided where the for 3 years prior to filing. (b) Particular erroneous entry or entries.

2. 3. (Section 5) Grounds 1. The new first name or nickname has been habitually and continuously used by petitioner and he has been publicly known by that first name or nickname in the community. part of the Government the proper provincial or . . Petitioner finds the first name or nickname to be ridiculous. 1.56 shall be based. 5. (Section 4) Administrative Proceeding Posting Who participates on the The Solicitor General or The Civil Registrar. File a verified petition for the cancellation or correction of any entry. Necessity to avoid confusion. Kind of proceeding Judicial Proceeding Judicial Proceeding Adversarial in nature because involves substantial changes and affects the status of an individual What to file File a signed and verified petition. tainted with dishonor or extremely difficult to write or pronounce. Consequence of change of status. The change will avoid confusion. 4. unaware of her alien parentage. Name is ridiculous. and extremely difficult to write of pronounce. File an affidavit. or 3. 2. and (3) Other documents which petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of petition. Notice and Publication At least once a week for three consecutive weeks in a newspaper circulation (notice of hearing) No posting At least once a week for three consecutive weeks in a newspaper of general circulation (notice of hearing) No posting At least once a week for two consecutive weeks (publish the whole affidavit) – in change of first name or nickname Duty of the civil registrar or Consul to post petition in a conspicuous place for 10 consecutive days The CivilRegistrar or Consul. A sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and without prejudicing anybody. Having continuously used and been known since childhood by a Filipino name. Upon good and valid tainted with dishonor grounds.

Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. as in legitimation. PANIQUI. Grounds for change of name The State has an interest in the names borne by individuals and entities for purposes of identification. No. February 2.R. October 19. The Court will not stand in the way of the reunification of moter and son. Appeal decision to the Court of Appeals. or extremely difficult to write or pronounce. 2007) The court shall grant the petition under Rule 103 only when satisfactory proof has been presented in open court that the order had been published as directed. No. 2005) • Other cases Under Art. 2008) . Considering the consequence that respondent’s change of name merely recognizes his preferred gender. Cagandahan. and proper and reasonable causes appear for changing the name of the petitioner. (Republic of the Philippines vs. dishonorable. BR. all in good faith and without prejudicing anybody. 6) Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. G.57 city fiscal shall appear on behalf of the Government of the Republic.R. In the case at bar. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. It is also his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. 67. we find merit in respondent’s change of name. Capote. the only reason advanced by petitioner for dropping his middle name is convenience (In Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan Wang. 159966. No. 4) When one has continuously used and been known since childhood by a Filipino name. March 30. so that before a person can be authorized to change his name.M. Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. (RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE RTC. 2) Change results as a legal consequence. he must show proper or reasonable cause. Grounds for change of name which have been held valid: 1) Name is ridiculous. 176 of the Civil Code. G. to be exercised in the light of the reasons adduced and the consequences that will follow. 166676.R. 5) Sincere desire to adopt Filipino name to erase signs of former alienage. A change of name will erase the impression that he was ever recognized by his father. (Republic vs. September 12. and was unaware of alien parentage. the allegations in the petition are true. G. 06-7-414-RTC. No. Appeal decision to the Civil Registrar General (head of NCSO). A. 2007) As for respondent’s change of name under Rule 103. 2. TARLAC. 157043. or any compelling reason which may justify such change. this Court has held that a change of name is not a matter of right but of judicial discretion. 3) Change will avoid confusion. Where to appeal: Appeal decision to the Court of Appeals. A change of name is a privilege and not a right. Such a change will conform with the change of the entry in his birth certificate from female to male.

relative or friend may file a petition in the RTC of the place where the absentee resided before disappearanceo appoint provisionally a representative for him (Sec. 349 of RPC. 4) • Declaration of presumptive death • No independent action for declaration of presumption of death – presumption may arise and be invoked in an action or special proceeding Exception Under Art. good faith of present spouse in contracting marriage is established. (Sec. 2) • Notice and publication required Copies of tne notice and hearing shall be served on known heirs and creditors and other interested persons and published once a week for 3 consecutive weeks in a newspaper of general circulation.(Sec. a petition for declaration of absence and appointment of a trustee or administrator may be filed. With judicial declaration that missing spouse is presumptively dead. Who may file. and without having left an agent to administer property or the power conferred on the agent has expired. 41 of Family Code. he must file summary proceeding for declaration of presumptive death of the absentee. • Trustee or administrator After 2 years without any news or after 5 years if an agent was left to administer the absentee’s property. Cancellation or Correction of Entries in the Civil Registry Rule 108 Cancellation or correction of entries in the civil registry • Who may file petition .58 Q. an interested party. Absentees Rule 107 Absentees 1. This is intended to protect present spouse from criminal prosecution for bigamy under Art. 1). without prejudice to the latter’s reappearance. • Period of absence of spouse before subsequent marriage 4 consecutive years – well founded belief that absent spouse already dead 2 years – danger of death R. Purpose of the rule 2. his whereabouts being unknown. when to file Provisional representative When a person disappears from his domicile. for purpose of present spouse contracting a second marriage.

418 Arquiza St. Her filiation.R. 164041. G. and date of birth are at stake. in relation to RA 9048 • Administrative correction of clerical or typographical errors The obvious effect of Republic Act 9048 is merely to make possible the administrative correction of clerical or typographical errors or change of first name or nickname in entries in the civil register. The lack of summons on Rosilyn was not cured by the publication of the order of the trial court setting the case for hearing for three consecutive weeks in a newspaper of general circulation. to afford the person concerned the opportunity to protect her interest if she so chooses. Being a proceeding in rem. • Change of name under Rule 108 The enactment in March 2001 of Republic Act No. which has been recorded in the civil registry • Venue Regional Trial Court of place where corresponding civil registry is located (Sec. which binds the whole world to the judgment that may be rendered in the petition. The publication of the order is a notice to all indispensable parties.R. the appropriate . It is enough that the trial court is vested with jurisdiction over the subject matter.decree 2. No.event . The service of the order at No.. not for the purpose of vesting the courts with jurisdiction. 2005) 1. leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate adversarial proceedings. Benemerito G. Manila and the publication thereof in a newspaper of general circulation in Manila. 2005) • Indispensable parties must be notified Under Sec.act . with the proper Regional Trial Court. December 9. Summons must still be served. legitimacy. the essence of which is an opportunity to be heard. July 29. Delantar. acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. concerning the civil status of persons 3. sufficiently complied with the requirement of due process.R. including Armi and petitioner minor. 2004). Any person interested in any . 140305. 9048 has been considered to lend legislative affirmation to the judicial precedence that substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 108. No party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn herself. This is but proper. (Ceruila vs. March 15. Ermita. No. CA. When all the procedural requirements under Rule 108 are thus followed. (Republic v. 3. Rule 108 not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto. ( Alba vs.Entries subject to cancellation or correction under Rule 108.59 1. G. 1) • Correction of entry under Rule 108 proceeding in rem – publication binds the whole world Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court. 146963. but to comply with the requirements of fair play and due process. No.

— Upon good and valid grounds. With respect to the correction in Carlito’s birth certificate of his name from “Carlito John” to “Carlito. (Republic vs.60 adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. the cancellation or correction of entries involving changes of name falls under letter “o” of the following provision of Section 2 of Rule 108: “Entries subject to cancellation or correction.A. 2007) • No intent on the part of the lawmakers to remove the authority of the trial courts to make judicial corrections of entries in the civil registry It can thus be concluded that the local civil registrar has primary. the remedy and the proceedings regulating change of first name are primarily administrative in nature. A. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name.M. 174689. xxx CAH is one of many conditions that involve intersex anatomy. October 22. 06-7-414-RTC.” the same was properly granted under Rule 108 of the Rules of Court. G. 2007) • Change of sex or gender allowed where person has both male and female sexual characteristics The trial court ordered the correction of entries in the birth certificate of respondent to change her sex or gender.R. 2008). No. Jennifer Cagandahan. • Change of first name is within the primary jurisdiction of the local civil registrar RA 9048 now governs the change of first name. No. from female to male. observance of the provisions of Rule 108 suffices to effect the correction sought for.A. until and unless an administrative petition for change of name is first filed and subsequently denied. No. Under the law.” Hence. ( Re: Final Report on the Judicial Audit Conducted at the Regional Trial Court. • A person’s first name cannot be changed on the ground of sex reassignment . No. jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. while the jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not complied with. not exclusive. Br. No. Paniqui. June 28. Such a change will conform with the change of the entry in his birth certificate from female to male (Republic vs. It likewise lays down the corresponding venue. Kho. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. therefore. the following entries in the civil register may be cancelled or corrected: x x x (o) changes of name. G. As for respondent’s change of name under Rule 103.” under Rules 103 and 108 of the Rules of Court. this Court has held that a change of name is not a matter of right but of judicial discretion. 166676. The term “intersexuality” applies to human beings who cannot be classified as either male or female. not judicial (Silverio vs Republic. 2007). Considering the consequence that respondent’s change of name merely recognizes his preferred gender. 67. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. on the ground of her medical condition known as Congenital Adrenal Hyerplasia (CAH). The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court. As correctly pointed out by the CA. and her name from “Jennifer” to “Jeff.R. Tarlac. In sum. September 12. with R. October 19. Since R. G. 9048 refers specifically to the administrative summary proceeding before the local civil registrar it would be inappropriate to apply the same procedure to petitions for the correction of entries in the civil registry before the courts. No. 170340. to be exercised in the light of the reasons adduced and the consequences that will follow. we find merit in respondent’s change of name. form and procedure. jurisdiction over such petitions for correction of clerical errors and change of first name or nickname.R. We respect respondent’s congenital condition and his mature decision to be a male.

he must show that he will be prejudiced by the use of his true and official name. not summary because published for 3 consecutive weeks. • Other Jurisprudence Ty Kong Tin (1954): followed by Chua Wee vs. any prejudice that he might suffer as a result of using his true and official name. March 30. G. 174689. were all correct.R. No.” and his sex from “male” to “female. October 22. the substantive law on the matter of correcting errors in the civil register. including those corresponding to his first name and sex.” Petitioner’s basis in praying for the change of his first name was his sex reassignment. he failed to show. 2005). Before a person can legally change his given name. Accordingly. etc. Rep. Macli-ing – proceedings. reflecting his status as a legitimated child or an acknowledged illegitimate child. No. a change of name does not alter one’s legal capacity or civil status.. no law authorizes the change of entry as to sex in the civil registry for that reason. he must present proper or reasonable cause or any compelling reason justifying such change. Medina – Rule 108 should be limited solely to implementation of Art. The registered name of a legitimate. Art.. 2007) • No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. ( Silverio vs Republic. The acts. to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute. and a surname. although filed under Rule 108. ( In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang. No. or a harmless.R. not changes involving civil status. 174689. 412 contemplates a summary procedure. Rep.” The birth certificate of petitioner contained no error.61 Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely. . He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. nationality or citizenship. involving correction of clerical errors. In this case. RA 9048 does not sanction a change of first name on the ground of sex reassignment. there is no legal basis for his petition for the correction or change of the entries in his birth certificate. no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. and does not have a middle name. To correct simply means “to make or set aright. G. October 22. (Silverio vs Republic. the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. However. vs. In addition. Wong vs. All entries therein. innocuous nature. 412. 159966. 2007) • Registered name of illegitimate child An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname. No correction is necessary. The name of the unrecognized illegitimate child therefore identifies him as such. Rather than avoiding confusion. G. legitimated and recognized illegitimate child thus contains a given or proper name. which are substantial and/or controversial Rep. While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery. events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest.R. However. Rep. vs. SolGen notified and filed opposition. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname. Thus. or even allege. a middle name.

2007) Republic Act No. correction/or Even substantial errors may be corrected and true facts established prov. CA (367 SCRA 110 [2001]): 1. paradigm shift: Rule 108 embodies two kinds of proceedings: 1.” When all the procedural requirements under Rule 108 are thus followed. No. with R.R. 170340. contested. under the law. . the appropriate adversary proceeding necessary to effect substantial corrections to the entries of the civil register is satisfied. (Kilosbayan Foundation vs. June 29. Rep. all doubts resolved in Lee vs. ( Re: Final . where opposing counsel have been given opportunity to demolish the opposing party’s case c. 2007) The local civil registrar has primary. 9048 provides in Section 2 (3) that a summary administrative proceeding to correct clerical or typographical errors in a birth certificate cannot apply to a change in nationality. where evidence has been thoroughly weighed and considered Procedure becomes ADVERSARY proceedings when opposition to petition is filed by LCR or any person having or claiming interest in entries sought to be cancelled and/ or corrected and opposition is actively prosecuted. Clerical or typographical errors (including change of first name) – RA 9048 (administrative correction) • Recent Jurisprudence • • • • “Appropriate adversary proceeding” is “one having opposing parties. Labrador However. as distinguished from an ex parte application. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should. No. • Appropriate proceeding: a.A. procedure summary in nature for correcting clerical or unsubstantial matters to make it less tedious and expensive 2. not exclusive. No. parties aggrieved by the error avail of the appropriate adversary proceeding. Ermita. July 3.R. vs. petition for cancellation even if filed under Rule 108 no longer summary. and. one of which the party seeking relief has given legal warning to the other party. vs. jurisdiction over such petitions for correction of clerical errors and change of first name or nickname. Valencia (141 SCRA 462 [1986]) – turning point. Substantial corrections allowed: citizenship from Chinese to Filipino. G. Bautista and Zapanta vs. No substantial change or correction in an entry in a civil register can be made without a judicial order. therefore. LCR of Davao Attempts to revert to Ty Kong Tin – Labayo Rowe vs. G. Rep. Leonor vs. 9048 prescribing the procedure that the petitioner and local civil registrar should follow. CA and Rep. and afforded the latter an opportunity to contest it. where all relevant facts have been fully weighed and considered b. procedure adversary in nature to govern proceedings involving substantial changes If all procedural requirements have been followed. 177721. status from legitimate to illegitimate’ status of mother from married to single Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Substantial corrections – Rule 108 2.62 Rep. Zosa (en banc). a change in citizenship status is a substantial change. (Republic vs. be effected through a petition filed in court under Rule 108 of the Rules of Court. Kho. vs.

in whole and any part. there is no such special law in the Philippines governing sex reassignment and its effects. October 22. October 19. A. Judgments and orders for which appeal may be taken 2. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. 2007) A change of name does not alter one’s legal capacity or civil status. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. (Silverio vs. or any CLAIM presented in behalf of the estate IN OFFSET to any claim against it Settles the ACCOUNT of an executor. No. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. 4. RA 9048 does not sanction a change of first name on the ground of sex reassignment. 1 (a). It is at maturity that the gender of such persons. and the special proceedings are . where such order or judgment 1. Is the FINAL ORDER or JUDGMENT rendered in the case. having reached the age of majority. it is for the legislature. Rule 41: no appeal may be taken from an order denying a motion for new trial or reconsideration. like respondent.M. No. Also. When to appeal Sec. to determine what guidelines should govern the recognition of the effects of sex reassignment. Allows or disallows a WILL Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of the estate to which he is entitled Allows or disallows. 6. 06-7414-RTC. in proceedings relating to the SETTLEMENT of the estate of the deceased. 3. In our system of government. (Republic vs. like respondent. 3. Tarlac. G. 166676. 2 (applicability of rules of civil actions). trustee or guardian Constitutes. 2008) S. 67. Any INTERESTED PERSON may appeal from an order or judgment rendered by the RTC. 1. If it is an ordinary appeal under Rules 40 or 41. with good reason thinks of his/her sex. a FINAL DETERMINATION in the lower court of the rights of the party appealing. appeal may be taken at various stages of the proceedings. and affects the SUBSTANTIAL RIGHTS of the person appealing. 174689. Unless it be an order granting or denying a motion for new trial or reconsideration – Sec. 2007) Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual. Appeal in Special Proceedings Rule 109 Appeals in special proceeding 1.R. • In certain kinds of special proceedings. 2. No. Rather than avoiding confusion.R. Exception: no appeal from appointment of special administrator. 41. Paniqui. changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. Modes of appeal Rules 40. BR. Republic. September 12. 5. G. such as settlement of estate. any CLAIM against the estate. or the ADMINISTRATION of a trustee or guardian.63 Report on the Judicial Audit Conducted at the RTC. Sec. should it choose to do so. Cagandahan. administrator. is fixed. 42 and 45 apply in conformity with Rule 72.

under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A. However. 1 . 21.M. Amparo (A.64 subject to multiple appeals. 4. the appeal period is 30 days. However. upon compliance with the conditions set forth in Rule 90. permit that such part of the estate as may be affected by the controversy or appeal be distributed among the heirs or legatees. SC. the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies the parties may avail of. like settlement of estates. we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has been adjudged with finality by the lower court. Rule 90. August 22. Rescission – where adoptee resides. CA and SB 5. G. Habeas Corpus (Rule 102): If filed with RTC. Guardianship: (Rule on Guardianship of Minors [A. CA and RTC have concurrent jurisdiction. Settlement of estate (Rule 73): RTC (or MTC) of province where deceased last resided/property situated. the court may. Habeas Corpus for custody of minors: Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309]. Sec.Distribution before payment of obligations is allowed provided distributees give BOND conditioned for payment thereof within such time as court directs. 2008) 4. Where multi-appeals are allowed. Rule 92 RTC of province or city where incompetent resides/property situated. in its discretion and upon such terms as it may deem proper and just. 07-9-12-SC) SC. No. (Briones vs. a notice of appeal and record on appeal being required. No. The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final. Rule on advance distribution Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a decedent. In this multi-appeal mode. No. 03-02-05-SC]) Family Court of province or city where minor resides/property situated. Adoption (Rule on Adoption [A. . 03-04-04-SC). where detainee is detained. and the writ shall be enforceable anywhere in the Philippines.R.M. 159130. 02-6-02-SC]): Family Court of province or city where prospective adoptive parents reside. No.M. CA or any of its members. the writ of habeas corpus issued by the RTC shall be enforceable only within its judicial region (Sec. VENUE OF SPECIAL PROCEEDINGS 1. 6. BP 129). 3. Escheat (Rule 91): RTC of province where deceased last resided/property situated. the petition may be filed with SC. Henson-Cruz. 2. No.M.

Which has jurisdiction over the place where data or information is gathered. or 2. . Correction of clerical or typographical errors (RA 9048): Local Civil Registrar of place where record is located. – if impractical in terms of transportation expenses. CA and SB RTC: 1. Change of name (Rule 103): RTC of province of residence of petitioner. Exc. etc. time and effort as where petitioner has transferred to another place – Local Civil Registrar of petitioner’s residence.65 RTC of the place where the threat. 08-1-16-SC) SC. Where petitioner resides. Cancellation or correction of entries (Rule 108): RTC of place where civil registry is located. Where respondent resides. or 3.M. 6. No. Absentees (Rule 107): RTC of place where absentee resided before his disappearance. Habeas Data (A. All at the option of petitioner. 8. act or omission was committed or any of its elements occurred 7. 7.

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