BB Special Proceedings

SPECIAL PROCEEDINGS
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SPECIAL PROCEEDINGS
Nimfa Cuesta Vilches

I. INTRODUCTION

A. DEFINITION

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

B. DISTINCTION FROM ORDINARY CIVIL ACTION

It is distinguished from an ordinary civil action where a party sues another for
the enforcement or protection of a right, or the prevention or redress of a wrong.
2

Hence, a special proceeding is initiated by petition, not by complaint.

C. APPLICABILITY OF RULES ON ORDINARY CIVIL ACTION

Applicability of rules on civil actions. In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in
special proceedings.
3

Special provisions under Part II of the Rules of Court govern special
proceedings; but in the absence of special provisions, the rules provided for in Part I
of the Rules governing ordinary civil actions shall be applicable to special
proceedings, as far as practicable.
4

1. Special proceedings under the Rules of Court

a) Settlement of estate of a deceased person;
5

b) Escheat;
6

c) Guardianship and custody of minor children;
7

d) Trustees;
8

e) Adoption and rescission and revocation of adoption;
9

1
RULES OF COURT, Rule 1, Sec. 3.
2
Reyes v. Enriquez, G.R. No. 162956, April 10, 2008; 551 SCRA 86.
3
4
Sheker v. Estate of Alice O. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111.
5
RULES OF COURT, Rules 73-90; RULE ON GUARDIANSHIP OF MINORS, A.M. No. 03-02-05-SC, May 1, 2003;
and Rule on Custody of Minors and Habeas Corpus in Relation to Custody of Minors, A.M. No. 03-04-04,
May 15, 2003.
6
RULES OF COURT, Rule 91.
7
Id., Rules 92-97.
8
Id., Rule 98.
9
Now governed by the Rule on Adoption, A.M. No. 02-6-02-SC, August 22, 2002.

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f) Hospitalization of insane persons;
10

g) Habeas Corpus;
11

h) Change of Name;
12

i) Voluntary dissolution of corporations;
13

j) J udicial approval of voluntary recognition of minor natural children;
14

k) Constitution of a family home;
15

l) Declaration of absence and death;
16

m) Cancellation or correction of entries in the civil registry;
17
and
n) Appeals in special proceedings
18

2. Special proceedings under various laws and Supreme Court Circulars

a) Petitions under the Family Courts Act
19

1. Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages;
20

2. Rule on Legal Separation;
21

3. Rule on Provisional Orders;
22

4. Rule on Custody of Minor Children and Writ of Habeas Corpus in
Relation to Custody of Minor Children;
23
and
5. Summary judicial proceedings under the Family Code
24

b) Proceedings for protection orders under the Violence Against Women and
Their Children Act
25

1. Rule on Violence Against Women and Their Children
26

10
11
Id., Rule 102.
12
Id., Rule 103; Republic Act No. 9255 [2004].
13
Now governed by Rep. Act No. 8799, or the Securities Regulation Code of 2000.
14
15
Rendered repealed by the Family Code which provides for an automatic constitution of the family
home.
16
17
Id., Rule 108; Rep. Act No. 9048 [2001]
18
19
Rep. Act No. 8369 [1997].
20
A.M. 02-11-10-SC March 15, 2003.
21
A.M. 20-11-11-SC, March 15, 2003.
22
A.M. 02-11-12-SC, March 15, 2003.
23
A.M. 03-04-04-SC, April 22, 2003.
24
CIVIL CODE, Arts. 238-253.
25
Rep. Act No. 9262 [2004].
26
A.M. 04-10-11, October 19, 2004.

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c) Proceedings under the Arbitration Law
27
and Alternative Dispute
Resolution Act
28

1. Arbitration; court-annexed mediation and judicial dispute resolution
29
;
and court-annexed family mediation
30

3. Special Proceedings under other Supreme Court Circulars

a) Petition for writ of amparo
31
and
b) Petition for writ of habeas data
32

27
Rep. Act No. 876 [1953].
28
Rep. Act No. 9285 [2004].
29
A.M. 01-10-5-SC-PHILJ A, October 16, 2001.
30
A.M. 10-4-16-SC, J une 22, 2010; Please refer to the Chapter on Alternative Dispute Resolution.
31
A.M. 07-9-12-SC, October 16, 2007.
32
A.M. 08-1-16-SC, February 2, 2008.

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II. SETTLEMENT OF ESTATE OF DECEASED PERSONS

A. DEFINITION

In a petition for settlement of estate, the applicants seek to establish the fact of
death of the decedent and to be duly recognized as among the heirs to be able to
participate in the settlement and liquidation of the estate.
33
Where the deceased left
a will, the proceeding is testate and if no will was left, the proceeding is intestate.
Settlement of estate proceeding is subject to mediation.
34

B. JURISDICTION OF PROBATE COURT BASED ON GROSS VALUE OF
ESTATE

First-Level Courts
35

Regional Trial Court
36
Sharia District
Courts
37

Metropolitan Trial Court
Not Exceeding P400,000

Municipal Trial Court in
Cities, Municipal Trial Court, and
Municipal Trial
Circuit Court

Not Exceeding P300,000
Within Metro Manila
Exceeding P400,000

Outside Metro Manila
Exceeding P300,000
Exclusive original
jurisdiction in matters
of settlement of the
estate of deceased
Muslims regardless
of the nature and
aggregate value of
the property.

1. Limited jurisdiction of the court in settlement of estate. The jurisdiction of
the trial court, either as testate or intestate court, is limited to settlement of estate
and probate of a will and appointment or removal of administrator or executor. As
a general rule, its power does not include determination of ownership and
adjudication of title that are in issue during the proceedings.
38
Hence, a separate
action contesting the title and ownership of a property shall be instituted.
39

2. Nature of authority of court in probate of will. In settlement of estate
proceedings, the authority of a probate court is limited to ascertaining whether
the testator, being of sound mind, freely executed the will in accordance with

33
Montaner v. Sharia District Court, et.al., G.R. No. 1744975, J anuary 20, 2009, 576 SCRA 746.
34
A.M. 10-4-16-SC, Rule1, J une 22, 2010.
35
Rep. Act No. 7691 [1994], amending Batas Pambansa Blg. 129.
36
Id.
37
Presidential Decree No. 1083, Art. 143(b).
38
Ramos v. Court of Appeals, G.R. No. 42108, December 29, 1989, 180 SCRA 635.
39
Vda. De Rodriguez v. Court of Appeals, G.R. No. L-39532, J uly 20, 1979, 91 SCRA 540.

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formalities prescribed by law.
40
However, in one case, the Supreme Court held
that although generally, a probate court may not decide a question of title or
ownership, yet if the interested parties are all heirs, or the question is one of
collation or advancement, or the parties consent to the assumption of jurisdiction
by the probate court and the rights of third parties are not impaired, the probate
court is competent to decide the question of ownership.
41

By way of exception to the abovementioned rule, when the parties are all
heirs of the decedent, it is optional upon them to submit to the probate court the
question of title to property.
42

Moreover, a Sharia District Court is not deprived of jurisdiction merely
because petitioners raised as a defense the claim that the deceased is not a
Muslim. According to the Supreme Court, the Sharia District Court has the
authority to determine whether it has jurisdiction, requiring the determination that
the deceased is a Muslim. If after hearing, the Sharia District Court finds that the
deceased was not in fact a Muslim, then it should dismiss the case for lack of
jurisdiction.
43

C. JURISPRUDENCE

1. Probate court cannot act on rights to property arising from contract nor
proceed to the probate of will that preterited a compulsory heir. In a relevant
case, the Supreme Court found that the probate court may act on matters
pertaining to the estate but not on the rights to property arising from a contract.
44

In addition, during the hearing, the probate court shall not go through the probate
of a will that preterited a compulsory heir since preterition invalidates the will.
45

2. Probate court cannot act on side agreement of parties as to a right of
way. Similarly, any agreement other than the judicially approved compromise
between the parties such as the grant of right of way, is outside the limited
jurisdiction of the probate court. Thus, an alleged right arising from a side
agreement on the right of way can be fully protected by filing an ordinary action
for specific performance in a court of general jurisdiction.
46

40
Nittscher v. Nittscher, G.R. No.160530, November 20, 2007, 537 SCRA 681.
41
Reyes v. Regional Trial Court of Makati, et.al., G.R. No. 165744, August 11, 2008, 561 SCRA 593.
42
Cortez v. Court of Apeals, G.R. No. 117417, September 21, 2000, 340 SCRA 715.
43
Supra note 33.
44
Supra note 38.
45
Nuguid v. Nuguid, G.R. No. 23445, J une 23, 1966, 17 SCRA 449.
46
Reyes-Mesugas v. Reyes, G.R. No. 174835, March 22, 2010.

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3. Exceptions to the limited jurisdiction of the probate court.

a. Probate court can act on questions regarding heirship and status of
an illegitimate child who claims to be an heir to the estate. If a special
proceeding for the settlement of estate of a decedent is pending, questions
regarding heirship, including prescription in relation to recognition and filiation,
should be raised and settled in said proceeding. The court, in its capacity as
probate court, has jurisdiction to declare who are the heirs of the decedent.
47

Even the status of an illegitimate child who claims to be an heir to a
decedents estate which cannot be adjudicated in an ordinary civil action, as
in a case for the recovery of property, must be ventilated in the special
proceeding instituted specifically for the purpose of settling the estate of the
deceased.
48

b. Probate court can rule on distributive shares and accounting of funds
and assets to determine shareholdings. If there is a controversy as to the
distributive shares of the heirs in the estate, the probate court shall proceed to
hear and decide the same as in ordinary cases.
49
The same is true in
accounting of funds and assets to determine the extent and value of
shareholdings undertaken by a probate court which is completely consistent
with the limited jurisdiction of said court. Beyond this, the determination of title
or ownership of the subject shares maybe conclusively settled by the probate
court as a question of collation or advancement.
50

D. VENUE

Section 1, Rule 73, Rules of Court provides for the venue for settlement of
estate of a deceased person.

Decedent was a resident
of the Philippines
51

Decedent was a non-
resident of the
Philippines
52

Deceased husband or
wife
53

The settlement of the estate
of a deceased person shall
be in the proper court of the
place of residence of the
deceased at the time of
death, regardless of
If the deceased person was
a resident of a foreign
country, the petition shall
be filed in the proper court
of any place where he had
estate.
As regards liquidation of the
conjugal or community
property of a deceased
husband or wife, it shall be
made in the corresponding
estate proceedings, but if

47
Montaner et.al., v. Sharia District Court, G.R. No. 174974, J anuary 20, 2009, 576 SCRA 746.
48
Puno v. Puno Enterprises, Inc., G.R. No. 177066, September 11, 2009, 599 SCRA 585.
49
Estate of Hilario Ruiz v. Court of Appeals, et.al., G.R. No. 118671, J anuary 29, 1996, 252 SCRA 541.
50
Reyes v. Regional Trial Court of Makati, G.R. No. 165744, August 11, 2008, 561 SCRA 593.
51
52
Id.
53
Id., Sec. 2.

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citizenship. both spouses are
deceased, then it shall be in
the estate proceeding of
either.

1. Question as to venue to be decided by court first taking cognizance of
petition. The question of venue is to be decided by the court first taking
cognizance of the petition. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the location of the
estate, shall not be contested in a suit or proceeding, except in an appeal from
that court, in the original case, or when want of jurisdiction appears on the
record.
54
This is to preclude different courts from assuming jurisdiction.
55

Accordingly, the court first taking cognizance of the settlement of estate of a
deceased exercises jurisdiction to the exclusion of other courts in testate or
intestate proceedings.
56

2. Meaning of residence. The term residence refers to actual residence, as
distinguished from legal residence or domicile.
57
As thus defined, residence,
in the context of venue provisions, means nothing more than a persons actual
residence or place of abode, provided the person resides therein with continuity
and consistency.
58

E. KINDS OF SETTLEMENT

Extrajudicial
settlement
59

Summary
settlement of
estate of small
value
60

Judicial Partition
61
Judicial settlement
through letters
testamentary or
letters of
administration
with or without the
will annexed
62

If decedent left no
will and no debts,
which is presumed if
no creditor files a
When the gross
value of the estate
of a deceased
person does not
Action for
partition under Rule
69, in relation to
Article 493 of the
All other forms of
settlement of estate
shall be by court
proceedings with

54
Id., Rule 73.
55
Cuenco v. Court of Appeals, No. 24742, October 26, 1973, 53 SCRA 360.
56
Intestate Estate of Wolfson, G.R. No. L-28054, J une 15, 1972, 45 SCRA 381.
57
Pilipinas Shell Petroleum Corporation v. Dumlao, G.R. No. 44888, February 7, 1992, 206 SCRA 40.
58
Supra note 38.
59
60
Id., Sec. 2.
61
Id., Rule 69, Sec 13.
62
Id., Rules 75 to 90.

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petition for letters of
administration within
two (2) years after
the death of the
decedent.
63

It may be in the
following forms: 1)
public instrument
executed by all the
heirs and filed with
the Registry of
Deeds; or, 2) an
affidavit of self-
adjudication if there
is only one heir
executing an
affidavit adjudicating
to himself the entire
estate, which
affidavit is filed with
the Register of
Deeds.
64

exceed P
10,000.00, upon a
proper petition, the
court having
jurisdiction may
proceed summarily
to settle the estate,
without the
appointment of an
executor or
administrator, and
without delay. The
petition may be filed
by an interested
person who shall
make such value
appear to the court.

Bond is required
if property, other
than real, is to be
distributed, in an
amount fixed by the
court, conditioned
for the payment of
any just claim.
65

NCC, as when the
heirs cannot agree
on the division of
the estate, and the
conditions for extra-
judicial settlement
are present.
The provisions
of the Rules of
Court on partition
apply to partitions of
estates composed
of personal
property, or both
real and personal
property, in so far
as they may be
applicable.
If the applicable
provision is Section
1, Rule 69 of the
Rules of Court,
which deals with an
action for partition,
there is no
requirement for
publication.
66

either an
administrator or an
executor managing
the estate of the
deceased until there
is partition and
distribution after the
payment of debts,
legacies and
devises. (See
further discussion
below.)

1. Extrajudicial Settlement. Requisites:

a. The decedent left no will;
b. The decedent left no debts, or, if there are any, these debts have been
paid by the heirs;
c. The heirs are all of age, or the minors are represented by their judicial
or legal representatives duly authorized for the purpose;
d. The agreement is contained in a public instrument;
e. The public instrument is registered with the Register of Deeds;
f. Simultaneously with the registration of the agreement with the Register
of Deeds, the parties file with the same Register of Deeds a bond in an

63
Id., Rule 74, Sec. 1.
64
Id.
65
Id., Sec.3.
66
Supra note 38.

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amount equivalent to the value of the personal property involved,
conditioned upon the payment of any just claim that may crop up within
two (2) years; and
g. The fact of extrajudicial settlement shall be published in a newspaper
of general circulation once a week for three consecutive weeks
67
.

2. Petition for administration of estate must be based on good reason.
While extrajudicial settlement by agreement between the heirs may be resorted
to,
68
recourse to an administration proceeding, even if the estate has no debt is
allowed but only if the heirs have good reasons for not resorting to an action for
partition. What is good reason depends on the circumstances of the case.
69

3. Not good reasons to file for administration of estate. The following are not
good reasons to file for administration of estate: to avoid multiplicity of suits as
when a person seeking to be appointed as administrator is also asking for the
annulment of conveyance of a certain property; an existing dispute among the
heirs;
70
and the appointment of the husband, a usufructuary forced heir of his
deceased wife, as judicial administrator for him to have legal capacity to appear
in the intestate proceedings of his wife's deceased mother as he may just adduce
proof of his being a forced heir in the intestate proceedings of the latter,
71
are not
good reasons to justify judicial administration.

4. Extrajudicial settlement is in the nature of a contract. An extrajudicial
settlement of estate partakes of the nature of a contract, hence, must comply
with the requisites prescribed under Article 1318 of the Civil Code, namely: 1)
consent of the contracting parties; 2) object certain, which is the subject matter of
the contract; and, 3) cause of the obligation which is established.
72
However, an
extrajudicial settlement of estate that is not notarized is considered a private
document and, as such, can only bind the parties thereto.
73

5. Time bar for parties who participated to object to the extrajudicial
proceeding. Section 4 of Rule 74 bars heirs and distributees, represented by
themselves or through guardians, from interposing objection to an extrajudicial
partition after the expiration of two (2) years from said partition. But, the

67
68
Id.
69
Pereira v. Court of Appeals, G.R. No. 81147, J une 20, 1989, 174 SCRA 154.
70
Supra note 38.
71
Utulo v. Pasion Vda. De Garcia, 66 Phil. 303.
72
Balalad v. Rublico, G.R. No. 160743, August 4, 2009, 595 SCRA 125.
73
Heirs of Arturo Reyes v. Beltran, G.R. No. 176474, November 27, 2008, 572 SCRA 211.

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prohibition applies only to parties who have taken part in the extrajudicial
settlement, not to third persons who had no participation in the proceedings.
74

6. Period of action for reconveyance based on implied or constructive
trust. The period to file an action for reconveyance, based on implied or
constructive trust in relation to an heir who did not participate in or who had no
knowledge of the extrajudicial partition, prescribes in ten (10) years
75
from the
alleged fraudulent registration or issuance of certificate of title over the
property,
76
except if there was bad faith in securing the certificate of title, in which
case the reckoning period is from actual discovery. It is important to note that the
Torrens title is not a shield for fraud.
77

F. PROBATE OR AUTHENTICATION OF A WILL

1. Will defined. A will is an act whereby a person is permitted, with all the
formalities prescribed by law, to control to a certain degree the disposition of the
estate and to take effect upon his death.
78

2. Formal Requisites in Execution and Attestation of Wills. Under the new
Civil Code, the formal legal requisites for the due execution and attestation of
wills are:

a) The will must be in writing and executed in a language or dialect known
to the testator;
79

b) Except in the case of a holographic will, every will must be subscribed
at the end thereof by the testator or by the testators name written by
some other person in his presence, and under his direction;
80

c) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another;
81

d) The testator or the person requested by him to write his name and the
attesting witnesses shall also sign, as aforesaid, on each and every page
of the will, except the last, on the left hand margin thereof;
82

74
Supra note 38.
75
Amerol vs. Bagumbaran, G.R. No. 33261, September 30, 1987, 154 SCRA 396; Marquez vs. Court of
Appeals, G.R. No. 125715, December 29, 1998, 300 SCRA 653.
76
Government Service Insurance System (GSIS) v. Santiago, G.R. No. 155206, October 28, 2003; 414
SCRA 563.
77
Samonte vs. Court of Appeals, G.R. No. 104223, J uly 12, 2001, 316 SCRA 173.
78
NEW CIVIL CODE, Art. 783.
79
Id., Art. 804.
80
Id., Art. 805
81
Id.
82
Id,; Aluad vs. Aluad, G.R. No. 176943, October 17, 2008, 569 SCRA 697.

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e) All the pages of the will shall be numbered correlatively in letters placed
on the upper part of each page;
83

f) The attestation clause shall state the number of pages used and the
fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the
presence of the attesting witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator
and of one another. If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them;
84
and
g) The will must be acknowledged before a notary public by the testator
and the witnesses.
85

h) In the case of a holographic will, it must be entirely written, dated, and
signed by the hand of the testator himself. It need not be witnessed.
86

Petition for probate of will may be initiated by:
a) Testator during his lifetime (ante mortem probate);
87

b) After the death of testator;
88

1. Any executor, devisee or legatee named in the will.
2. Any person interested in the estate.
c) When a party is directed by the court pursuant to the Rules
of Court.
89

3. Time to submit will to the court

a) Within twenty (20) days from knowledge of the death of the testator,
the custodian of a will shall deliver the will to the court or to the executor
named in the will.
90

b) The executor, on the other hand, has twenty (20) days from knowledge
of the death of the testator or knowledge of the fact that he is named
executor to submit the will to the court, unless the will has reached the
court already.
91

4. Time for executor to signify acceptance or refusal of trust. Within the
same period, an executor shall signify to the court in writing whether he accepts
or refuses the trust.

83
NEW CIVIL CODE, Art. 805.
84
Id., Art. 805.
85
Id., Art. 806.
86
Id., Art. 810.
87
Id., Art. 838.
88
Id.,
89
90
91
Id., Sec. 3.

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5. Sanctions for Failure. A person who neglects any of the duties required
without excuse satisfactory to the court shall be fined and those having custody
of a will after the death of the testator who neglects without reasonable cause to
deliver the same, when ordered so to do, to the court having jurisdiction, may be
committed to prison and there kept until he delivers the will.
92

a) A person who neglects to submit the will without excuse satisfactory
proven to the court, shall be fined in an amount not exceeding
PhP2,000.00.
b) The custodian, who refuses to comply with the order of the court to
deliver the will, when ordered to do so, may be committed to prison until
he delivers the will.
93

6. Contents of petition. A petition for the allowance of will shall allege the
following:

a) jurisdictional facts;
1. that a person died leaving a will;
2. the testator at the time of death is a resident within the territorial
jurisdiction of the court; and
3. the testator is non-resident at the time of death but left property
within the territorial jurisdiction of the court.
b) names, ages, and residences of the heirs, legatees, and devisees of
the testator or decedent;
c) probable value and character of the property of the estate;
d) name of the person for whom letters are prayed; and,
e) if the will has not been delivered to the court, the name of the person
having custody of it.

No defect in the petition, however, shall render void the allowance of a
will, or the issuance of letters testamentary or of administration with the will
annexed.
94

7. Time to prove or contest the will. The court shall fix a time and place for
proving the will where all concerned may appear to contest the allowance
thereof.
95

8. Publication of notices; exception. The required notice shall be published
three (3) weeks successively, previous to the time appointed, in a newspaper of

92
Id., Secs. 4 and 5; Uy v. Lee, G.R. No. 176831, J anuary 15, 2010.
93
Id., Rule 75, Sec. 2 to 5.
94
95
Id., Sec. 3.

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general circulation in the province.
96
Probate of a will is a proceeding in rem. The
requirement of publication is for constructive notice to the whole world so that if
the will is allowed, judgment is binding upon every person.
97
But where the
petition for probate has been filed by the testator himself, no newspaper
publication shall be made.
98

9. Persons entitled to notice. The persons entitled to notice are the heirs,
devisees and legatees, residing in the Philippines, notified by mail or personally.
The executor if not the petitioner, shall also be notified by mail or personally. The
mail shall be deposited in the post office with the postage prepaid at least twenty
(20) days before the hearing if the places of residence are known.
99
Personal
service of copies of the notice at least ten (10) days before the day of the hearing
shall be equivalent to mailing. If the testator is the petitioner, only the
compulsory heirs are entitled to notice. Compulsory heirs under Art. 887 of the
New Civil Code are:

a) Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
b) In default of the foregoing, legitimate parents and ascendants, with respect
to their legitimate children and descendants;
c) The widow or widower;
d) Acknowledged natural children, and natural children by legal fiction;
e) Other legitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those
in Nos. 1 and 2; neither do they exclude one another.

At the hearing, compliance with the provisions on notice and publication
shall be shown before the introduction of testimony in support of the allowance of
the will. All testimony shall be taken under oath and reduced to writing.
100

10. Proof required at the hearing for the probate of a will. At the hearing, the
proponent must first prove: (a) publication of the notice of hearing, and (b)
service of the notice of hearing, to all known heirs, legatees and devisees, and to
the executor, if he is not the petitioner.
101

96
Id.,
97
Supra note 38.
98
Id.
99
100
101
Id.

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11. Evidence required for allowance of will

a) If the allowance of the will is not contested:

i. The court may grant allowance on the testimony of one subscribing
witness.
102

ii. If the will is holographic, at least one witness who knows the handwriting
of the testator shall be presented; in the absence of such competent
witness, expert testimony may be resorted to.
103

b) If the allowance of the will is contested:
i. All the subscribing witnesses and the notary public must be produced
and examined
104
.
ii. If any or all of the attesting witnesses testify against the due execution
of the will, other witnesses may be presented
105
.
iii. If the will is holographic, three witnesses who know the handwriting of
the testator must be presented; in the absence of such competent
witnesses, expert testimony may be resorted to
106
.

c) If the subscribing witnesses are dead, insane or not residents of the
Philippines, the court may admit the testimony of other witnesses
107
.

d) The death, insanity or absence of subscribing witnesses must be
satisfactorily shown to the court. If they are residing in the Philippines
but outside the province where the probate is being conducted, their
depositions may be taken
108
.

e) Where the testator petitions for allowance of his holographic will:
i. If the petition is not contested, his own testimony shall be sufficient;
ii. If the petition is contested, the burden of disproving the genuineness
and due execution of the will shall be on the contestant;
iii. The testator, in his turn, may present rebuttal evidence
109
.

12. Proof required when a will is lost or destroyed. A will may be proved as
lost or destroyed when

102
Id.
103
Id.
104
Id., Sec. 11.
105
Id.
106
Id.
107
108
Id., Sec. 11.
109
Id., Sec. 12.

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a) its execution and validity have been established;
b) the will is proved to have been in existence at the time of the death
of the testator;
c) if it has been destroyed, it is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his
knowledge; and
d) its provisions are clearly and distinctly proved by at least two
credible witnesses.
110

This is applicable only to notarial wills.
111

13. Jurisprudence

In a relevant case,
112
the Supreme Court held that the intention of the law
is to give the near relatives the choice of either complying with the will if they
consider it authentic, or to oppose it, if they believe it is spurious. Verily, the
purpose is frustrated when the document is not presented for their examination. If
it is argued that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct disadvantage, and
they have the right and privilege to comply with the will, if authentic, a right which
they should not be denied by withholding inspection thereof from them.

Authentication does not also invalidate the will. According to the Supreme
Court, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their presence
does not invalidate the will itself. The lack of authentication only results in the
disallowance of such changes. The requirements of authentication of changes
and signing and dating of dispositions are provided for in Articles 813 and 814 of
the Civil Code, while that which provides for the necessary conditions for the
validity of the holographic is Article 810.
113

14. Contesting a will. Anyone appearing to contest a will must state in writing
the grounds for opposing its allowance and serve a copy thereof on the petitioner
and other parties interested in the estate.
114
It is well-settled that in construing the
provisions of a will, the intent of the testator is controlling.
115

110
Id., Sec. 6; Estate of Suntay, 50 O.G. 5321.
111
Rodelas v. Aranza, G.R. No. 58509, December 7, 1982, 119 SCRA 16.
112
Testate Estate of Felicidad Esguera Alto-Yap, G.R. No. 12190, August 30, 1958.
113
Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488.
114
115
Rama v. Joaquin, G.R. No. 169400, September 12, 2008, 565 SCRA 104.

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15. Grounds for disallowance of a will. A will may not be allowed in the
following instances: a) if the will was not executed and attested as required by
law; b) if the testator was insane, or otherwise mentally incapable to make a will
at the time of its execution; c) if the will was executed under duress, influence of
fear, or threats; d) if the will was procured by undue and improper pressure and
influence on the part of the beneficiary, or of some other person for his benefit;
and, 5) if the signature of the testator was procured by fraud or trick, and that the
testator did not intend that the instrument should be his will at the time of fixing
his signature.
116

16. Letters testamentary issued when will is allowed. When a will has been
proved and allowed, the court shall issue letters testamentary to the person
named executor if he is competent, accepts the trust and gives a bond.
117

However, where some co-executors are disqualified, others who are competent
may perform the duties and discharge the trust required by the will.
118

G. LETTERS OF ADMINISTRATION

If no executor is named in the will, or the executor or executors are
incompetent, refuse the trust or fail to give bond or a person dies intestate,
administration shall be granted to and observing the following order of preference: 1)
surviving spouse or next of kin or both or to such person requested by them, if
competent and willing to serve; 2) one or more of the principal creditor; or, 3) any
other person that the court may select.
119

Upon notice to the known heirs, creditors of the decedent, and any other
persons believed to have an interest in the estate and after hearing, the court shall
issue letters of administration to the party best entitled thereto. The letters of
administration may be granted, however, to any qualified applicant if other
competent persons having better right to the administration fail to appear when
notified and claim the issuance to them.
120

1. Jurisprudence

a) Defect in the petition does not render letters of administration void
and discretionary execution allowed in special circumstances. No defect
in the petition shall render void the issuance of letters of administration.
121

Section 2, Rule 39 of the Rules of Court allows discretionary execution where

116
117
118
Id., Sec. 5.
119
Id., Rule 76, Secs. 4 and 6.
120
Id., Rule 79, Secs. 3, 5, and 6.
121
Id., Sec. 2.

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special reasons or circumstances exist as when the estate would be left
without an administrator and the prompt settlement of the estate had already
been unduly delayed.
122

b) The court may allow immediate assumption into office of appointed
administration pending appeal. The trial court does not act with grave
abuse of discretion in ordering the immediate assumption into office of one
who has been appointed as administrator before the perfection of an appeal
from the order appointing him as such, where sufficient reasons exist to order
execution pending appeal.

c) Survi ving spouse is preferred as administrator. The surviving spouse is
preferred in the appointment of an administrator,
123
interest in the estate
being the principal consideration. Accordingly, the Supreme Court in the case
of Gonzalez v. Aguinaldo, et.al.,
124
held that those who will reap the benefit of
a wise, speedy and economical administration of the estate, or, on the other
hand suffer the consequences of waste, improvidence or mismanagement,
have the highest interest and most influential motive to administer the estate
correctly.

2. Contents of petition for letters of administration. The contents of a petition
for letters of administration are as follows: jurisdictional 1) facts;
125
2) names,
ages and residences of the heirs, and the names and residences of the creditors
and of the decedent; 3) probable value and character of the property of the
estate; and, 4) name of the person for whom letters of administration are
prayed.
126

3. Persons disqualified from being appointed administrator or executor. A
person is not competent to serve as executor or administrator in the following
instances: a) minor person; b) not a resident of the Philippines; or, c) in the
opinion of the court, the person is unfit to execute the duties of the trust by
reason of drunkenness, improvidence, want of understanding or integrity, or by
reason of conviction of an offense involving moral turpitude.
127
Also, a judge
cannot serve as executor, administrator, trustee, or guardian, except when acting

122
Supra note 38.
123
124
G.R. No. 74769, September 28, 1990, 190 SCRA 112.
125
The jurisdictional facts are the death of testator and residence within the country, as held in the case of
Vda. De Manalo v. Court of Appeals, G.R. No. 129242, J anuary 16, 2001, 349 SCRA 135.
126
127
Id., Rule 79 and Rule 78, Sec 1.

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in a fiduciary capacity for the estate, trust or person of a member of the
immediate family.
128

H. APPOINTMENT OF A SPECIAL ADMINISTRATOR

The appointment of a special administrator is necessary only when there is
delay in granting letters testamentary if the decedent left a will or for administrative
purpose, as when the decedent did not leave a will brought about by any cause. The
principal reason of the appointment of a temporary administrator is to preserve the
estate until it can pass into the hands of a person allowed under the law to
administer it for the benefit of creditors and the heirs.
129

Special Administrator may also be appointed when the executor or
administrator has a claim against the estate he represents.
130

1. Jurisprudence

a. Appointment of special administrator maybe revoked based on loss
of confidence. The Supreme Court found no grave abuse of discretion on
the part of the court when it revoked the appointment of respondents as joint
special administrators, the removal being grounded on reason, equity, justice,
and legal principle. Even if special administrators had already been
appointed, once the probate court finds the appointees no longer entitled to
its confidence; it is justified in withdrawing the appointment and giving no valid
effect thereto.
131

b. Termination of appointment or removal of special administrator. The
special administrator may be removed on grounds other than those
mentioned in Rule 82 referring to death, resignation or removal.
132
And, when
an executor or administrator is appointed, the powers of the special
administrator cease and the special administrator shall immediately deliver
the estate to the executor or administrator who may take over legal suits
commenced by the special administrator.
133

The order of the probate court appointing a special administrator is not
appealable.
134
The remedy is certiorari because the appointment and removal
of special administrator rests on the sound discretion of the court.

128
Ramos v. Judge Barot, A.M. MTJ -001338, J anuary 21, 2004, 420 SCRA 406.
129
Tan v. Hon. Gendorio, et. al., G.R. No. 166520, March 14, 2008; 548 SCRA 528.
130
131
Ocampo et. al., v. Ocampo, G.R. No. 187879, J uly 5, 2010.
132
De Gala v. Gonzales, 53 Phil. 104 (1929); Roxas v. Pecson, 82 Phil. 407 (1948).
133
134
Id., Rule 109, Sec. 1 (e).

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3. General powers and duties of executors and administrators. An executor
and administrator shall have the following powers and duties:

1) maintain the estate in tenantable repair and deliver the same to the heirs
or devisees when directed by the court;
135

2) possess and manage the estate of the deceased for the payment of the
debts and expenses of administration;
136

3) have access to partnership books and property where the deceased was a
partner, examine the same and upon his written application, the court may
order any surviving partner to permit the exercise of the rights and to exhibit
the books and property and may punish any partner failing to do so for
contempt;
137
and,
4) with the approval of the court, to compound or compromise with a debtor of
the deceased.
138
But, the administrator may only deliver properties of the
estate to the heirs after the payment of the debts, funeral charges and other
expenses against the estate, except when authorized by the court.
139

I. INVENTORY, APPRAISAL, AND EXCLUSIONS

Within three (3) months after appointment, an executor or administrator shall
file a true inventory and appraisal of all the real and personal estate of the deceased,
with the assistance of one or more inheritance tax appraisers, as may be ordered by
the court.
140
The articles that shall not be inventoried are the following: 1) the
wearing apparel of the surviving spouse and minor children; 2) the marriage bed and
bedding; and, 3) such provisions and other articles as will necessarily be consumed
in the subsistence of the family of the deceased. Further, they shall not be
considered as assets, nor administered as such.
141

In a case, it was held that the probate court may determine if properties shall be
included in the inventory. Inasmuch as the probate court can resolve questions of
title provisionally, it may determine whether the properties should not be included in
the inventory or list of properties to be administered by the administrator. However, if
there is a dispute as to title, the parties, the administrator and the opposing parties
shall resort to an ordinary action for the final determination of the conflicting claims
as the probate court has no authority to do so.
142

135
136
Id., Sec. 3.
137
Id., Sec. 1.
138
139
Silverio, Jr. v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.
140
141
Id., Sec. 2.
142
Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997, 279 SCRA 647.

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J. ALLOWANCE TO THE WIDOW AND FAMILY

The widow and minor or incapacitated children of the deceased, during the
settlement of the estate, shall receive allowance as are provided by law.
143
And,
under Section 3 of Rule 83, allowances for support are not limited to the minor or
incapacitated children of the deceased but extends to the deceaseds legitimate
spouse and children, regardless of their age, civil status or gainful employment, who
are entitled to provisional support from the funds of the estate. The allowance for
support is pursuant to Article 188 of the Civil Code which is rooted on the right and
duty to support, especially the right to education that subsists even if the children are
already beyond the age of majority.
144

Grandchildren are not entitled to provisional support from the funds of the
decedents estate. The law clearly limits the allowance to widow and children and
does not extend it to the deceaseds grandchildren, regardless of their minority or
incapacity.
145

K. SALES, MORTGAGES AND PAYMENT OF DEBTS

The approval by the probate court is necessary where specific properties of the
estate are sold, but not when only ideal and indivisible shares of an heir are
disposed of.
146
The sale or mortgage of specific estate property may be approved by
the court under the following circumstances: 1) for the payment of debts pay the
obligation of the estate; and, 2) if a part of the real property cannot be sold, or
otherwise encumbered without injury to those interested in the remainder, the
disposition may be of the whole of the property, or so much as necessary or
beneficial under the circumstances.
147

1. Persons interested may prevent sale by filing bond. Persons interested
may prevent a sale, mortgage, or encumbrance by giving a bond in a sum to be
fixed by the court, conditioned to pay the obligations of the estate. Such bond
shall be for the security of the creditors, as well as the executor or
administrator.
148

143
144
Estate of Hilario Ruiz, et. al., v. Court of Appeals, et. al., G.R. No. 118671, J anuary 29, 1996; 252
SCRA 541.
145
Id.
146
Heirs of Pedro Escanlar v. Court of Appeals, G.R. No. 119777, October 23, 1997, 281 SCRA 176.
147
148
Id., Sec. 3.

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2. Jurisprudence

The mortgage of property of estate without authority of the court is void,
thus, the purchaser at public auction acquires no title over the property. The real
estate mortgage contracts, as well as the correlative extrajudicial foreclosure and
the sale of the property described therein at public auction, can be attacked
directly and collaterally.
149

L. CONDITIONS FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR
ENCUMBER THE ESTATE

The conditions for granting authority to sell, mortgage or encumber the estate
are as follows:

1) the executor or administrator shall file a written petition, setting forth the
following: [a] the debts due from the deceased, [b] the expenses of
administration, [c] the legacies, [d] the value of the personal estate, [e] the
condition of the estate to be sold, mortgaged, or otherwise encumbered, and
[f]) such other facts as will show that the sale, mortgage, or other
encumbrance is necessary or beneficial;
2) the court shall then cause notice to the persons interested, stating the
nature of petition, the reason for the same, the time and place of hearing and
the court may cause further notice by publication or otherwise;
3) the court may direct the executor or administrator to give an additional
bond to account for the proceeds of the sale, mortgage, or other
encumbrance; and,
4) the court may then grant the petition to sell, mortgage or encumber in
proper cases, such part of the estate as it deems necessary.

For the mode of sale, the court may authorize the sale to be public or private,
as would be most beneficial to all parties concerned. If the property is to be sold at
auction, the mode of giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution sale. The transaction and
court order shall be recorded in the registry of deeds.
150

M. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Rule 87, Section 1 of the Rules of Court provides that no action upon a claim
for the recovery of money or debt or interest thereon shall be commenced against
the executor or administrator. But, actions that survive, such as a claim to recover
real or personal property, or an interest therein from the estate or to enforce a lien

149
Orola v. Pontevedra, G.R. No.158566, September 20, 2005, 470 SCRA 352.
150

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thereon, and actions to recover damages for an injury to person
151
or property, real
or personal, maybe commenced against the executor or administrator.

1. Jurisprudence

Felonies committed in forcing parties to sign an agreement is an
action against the executor or administrator. The Supreme Court, in one
case, ruled that the Rules of Court has separate provisions for different claims
against the estate of a decedent under Section 5 of Rule 86
152
and Section 1 of
Rule 87.
153
If, as insisted by petitioners, respondents committed felonies in
forcing them to sign the letter-agreement, petitioners, according to the Supreme
Court, should have filed an action against the executor or administrator of the
estate based on Section 1, Rule 87 of the Rules of Court, not a claim against the
estate based on contract.
154

2. Actions that survi ve. In general, executors and administrators may bring or
defend actions that survive. Actions that survive are those actions to recover real
or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real
or personal.
155
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 of the
Rules of Court as these actions, being civil in nature, survive the death of the
decedent and may be commenced against the administrator, pursuant to Rule
87, Section 1, of the Rules of Court.
156

3. Claims that do not survive. Claims that do not survive, on the other hand,
are money claims that are filed in the estate proceedings or any of the following:
a) claims arising from contract, express or implied, whether due, not due or
contingent;
157
b) all claims for funeral expenses; c) expenses for the sickness of
the decedent; and, d) judgment for money against the decedent, which should be
presented in the form of claims against the estate.
158
If the deceased was a
mortgagee or assignee of the right of a mortgagee, the mortgage may be
foreclosed by the executor or administrator.
159

151
Melgar v. Buenviaje, G.R. No. 55750, November 8, 1989, 179 SCRA 196.
152
Claims that must be filed under the notice to creditors, such as money claims.
153
Actions that may or may not be brought against the executor or administrator.
154
ABS-CBN Broadcasting Corporation, et. al., v. Office of the Ombudsman, et. al., G.R. No. 133347,
April 23, 2010.
155
156
Hilado et. al., v. Court of Appeals, G.R. No. 164108, May 8, 2009, 587 SCRA 464.
157
These claims are specifically described as contractual money claims in the RULES OF COURT, Rule 3,
Sec. 20.
158
RULES OF COURT, Rule 86, Sec. 5; Belamala v. Polinar, G.R. No. 24098, November 18, 1967, 21
SCRA 970.
159

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N. PROCEEDINGS WHEN PROPERTY IS CONCEALED, EMBEZZLED OR
FRAUDULENTLY CONVEYED

When a person is suspected of having concealed, embezzled or conveyed
away any of the money or chattels of the deceased, or such person possesses or
knows of a document which contains evidence of or tends to disclose the right of the
deceased to real or personal estate, or the last will and testament of the deceased,
the court may cite such suspected person to appear or to answer, and may examine
him on oath.
160

If the person so cited refuses to appear and give rogatories, the court may
punish him for contempt and may commit him to prison until he submits to the order
of the court. The interrogatories, if there are any, and the answers thereto, shall be
in writing and shall be filed in court.
161

O. DOUBLE VALUE RULE

It is provided under Rule 87, Section 8, of the Rules of Court, that a person
who, before the granting of letters testamentary or administration, embezzles or
alienates any money, goods, chattels or effects of the deceased, shall be liable to an
action in favor of the executor or administrator of the estate for double the value of
the property misappropriated, to be recovered for the benefit of the estate. This
applies to a situation where the embezzlement causes loss to the estate.
162

P. RENDITION OF ACCOUNT

A person entrusted by the executor or administrator with property of the
deceased, may be compelled to render a full account on oath before the court.
163
A
person who embezzles or alienates property of the deceased before issuance of
letters testamentary or of administration is liable for double the value of the property
embezzled.
164

160
Id., Sec. 6.
161
Id.
162
Marshall v. Anthalz, 54 Phil. 448 (year).
163
164
Id., Sec. 8.

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Q. REMEDY FOR FRAUDULENT CONVEYANCE BY THE DECEASED DURING
HIS LIFETIME

By an executor or administrator By the creditor in the name of the
executor or administrator
In case of fraudulent conveyance, an
executor or administrator may file an
action as when there is a deficiency of
assets to pay the debts, but the deceased
during his lifetime conveyed property with
intent to defraud his creditors, the
conveyance would by law be void as
against creditors, and the subject of the
attempted conveyance would be liable to
attachment by any of them in his lifetime,
unless the creditors pay for the costs and
expenses thereof or give security as the
court deems equitable;
165

In case of fraudulent conveyance, a
creditor may file an action upon the filing of
a bond approved by the court to indemnify
the executor and or administrator subject
to the following requirements: 1) deficiency
of assets in the hands of an executor or
administrator for the payment of debts and
expenses of administration; 2) deceased in
his lifetime made or attempted to make
fraudulent conveyance of his real or
personal property or a right or interest
therein, or debt or credit, with intent to
defraud his creditors or to avoid any right,
debt or duty or had so conveyed such
property, right, debt or credit that by law,
the conveyance would be void as against
his creditors; 3) subject of the attempted
conveyance would be liable to attachment
by any of them in his lifetime; 4) the
executor or administrator have shown to
have no desire to file the action or failed to
institute the same within reasonable time;
5) leave of court; and, 6) bond; in the
name of executor or administrator.
166

R. STATUTE OF NON-CLAIMS

Immediately after granting letters testamentary or of administration, the court
shall issue a notice requiring all persons having money claims against the decedent
to file the same in the office of the clerk of court.
167
In the notice to file money claims,
the court shall state the time for the filing of the claims against an estate which shall
not be more than twelve (12) nor less than six (6) months after the date of the first
publication of the notice. The period is to ensure the speedy settlement of the estate
for the benefit of the creditors and those entitled to the residue.
168

165
Id., Sec 9.
166
Oscar M. Herrera, REMEDIAL LAW III-A, 2005 Ed., pp. 174-175.
167
168
Sikat v. Vda. De Villanueva, 57 Phil. 486 (1932).

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E-25
S. EXTENSION OF PERIOD TO ALLOW CONTINGENT CLAIM

However, before an order of distribution is issued, the court may, for cause
shown and on such terms as are equitable, allow a claim to be filed within a time not
exceeding one (1) month.
169

1. Jurisprudence

a. Court has discretion to extend period. In one case, the Supreme Court
ruled that Rule 86, Section 2, of the Rules of Court gives the probate court
discretion to allow claims presented beyond the period fixed, provided that
they are filed within one (1) month from the expiration of the period but in no
case beyond the date of entry of the order of distribution. Thus, a contingent
claim filed within both periods is allowed.
170

b. Pendency of the case before the regular courts is good excuse for
delay of claim. More to the point, the period prescribed in the notice to
creditors is not exclusive; that money claims against the estate may be
allowed anytime before an order of distribution is entered, at the discretion of
the court for cause and upon such terms as are equitable. And, the pendency
of the case before the regular courts was considered a good excuse for the
delay of the claim.
171

T. FILING OF CLAIMS

A claim may be filed with the clerk of court with the necessary vouchers and
supporting affidavits, serving a copy of thereof on the executor or administrator.
172
If
the claim is not due, or is contingent, it must also be supported by affidavit stating
the particulars thereof. When the affidavit is made by a person other than the
claimant, he must set forth therein the reason why it is not made by the claimant.
173

1. Money claim against the estate does not require certification of non-
forum shopping. A certification of non-forum shopping is required only for
complaints and other initiatory pleadings and not in contingent money claim
against the estate of a decedent which is not an initiatory pleading. The whole
probate proceeding is initiated upon the filing of the petition for allowance of the
decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of Court, after
granting letters of testamentary or of administration, all persons having money

169
170
Danan v. Buencamino, G.R. No. 57205, December 14, 1981, 110 SCRA 352.
171
Echaus v. Blanco, G.R. No. 41295, December 4, 1989, 179 SCRA 704.
172
173
Id.

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E-26
claims against the decedent are mandated to file or notify the court and the
estate administrator of their respective money claims.
174

U. TYPES OF CLAIM TO BE PRESENTED

The claims that must be filed under the notice are as follows: a) all claims for
money against the decedent arising from contract, express or implied, whether the
same be due, not due, or contingent; b) all claims for funeral expenses and
expenses for the last sickness of the decedent; and, c) judgment for money against
the decedent.
175

V. TIME BAR AND SET-OFF

Claims that are not filed within the time limited in the notice are barred forever,
except that they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commended by the
deceased in his lifetime, a debtor may set forth in an action by the executor or
administrator against him, by answer, the claims he has against the decedent,
instead of presenting them independently as a claim against the estate and mutual
claims may be set off against each other in such action. Claims that are not yet due,
or are contingent, may be approved at their present value.
176

W. DISPOSITION OF ADMITTED CLAIM AND TRIAL OF CONTESTED CLAIM

Any claim admitted by the executor or administrator shall immediately be
submitted by the clerk to the court who may approve the same without hearing; but
the court may order that known heirs, legatees, or devisees be notified and heard.
177

If an heir, legatee, or devisee opposes the claim, the court may allow the opposing
party fifteen (15) days to answer the claim. Upon the filing of an answer or upon the
expiration of the time for filing, the clerk of court shall set the claim for trial with
notice to both parties. The court may refer the claim to a commissioner.
178

174
Sheker v. Sheker, G.R. No. 157912, December 13, 2007, 540 SCRA 111.
175
176
Id.
177
Id., Sec. 11.
178
Id., Rule 86, Secs. 11 and 12.

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X. APPEAL OF JUDGMENT

The judgment of the court approving or disapproving a claim is appealable
179
. A
judgment against the executor or administrator to pay shall not create any lien upon
the property of the estate, or give to the judgment creditor any priority of payment.
180

1. Jurisprudence

Appeal as to commission of the special administrator can proceed
independently of the certiorari regarding the appointment of an auditor. In a
case decided by the Supreme Court, it was held that the matter appealed was
the special administrator's commission, a charge that is a claim against the
estate under administration, while the matter covered by the petition for certiorari
was the appointment of an auditor who would pass upon the special
administrator's final account. By their respective natures, according to the Court,
these matters can exist independently of one another and can proceed
separately, as provided for by Rule 109 of the Rules of Court.
181

Y. PAYMENT OF DEBTS

1. Where there are sufficient assets to pay the debts:

a) If the testator makes provision by his will or designates the estate to be
appropriated for the payment of debts, they shall be paid according to the
provisions of the will.
182

b) If the estate designated in the will is not sufficient, such part of the estate
as is not disposed of by will shall be appropriated for the purposed.
183

c) The personal estate not disposed of by will shall be first chargeable with
payment of debts and expenses.
184

d) If the personal estate is not sufficient, or its sale would be detrimental to
the participants of the estate, the real estate not disposed of by will shall
be sold or encumbered for that purpose.
185

e) Any deficiency shall be met by contributions from devisees, legatees and
heirs who have entered into possession of portions of the estate before
debts and expenses have been paid.
186

179
Id., Rule 109, Sec. 1 (c).
180
Id., Sec. 13.
181
Briones v. Henson-Cruz, G.R. No. 159130, August 22, 2008, 563 SCRA 69.
182
183
Id.
184
Id., Sec. 3.
185
Id.
186
Id., Sec. 6.

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f) The executor or administrator shall retain sufficient estate to pay
contingent claims when the same become absolute.
187

2. Where the estate is insolvent.

a) The executor or administrator shall pay the debts in accordance with the
preference of credits established by the Civil Code.
188

b) No creditor of any one class shall receive any payment until those of the
preceding class are paid.
189

c) If there are no assets sufficient to pay the credits of any one class of
creditors, each creditor within such class shall be paid a dividend in
proportion to his claim.
190

d) Where the deceased was a non-resident, his estate in the Philippines shall be
disposed of in such a way that creditors in the Philippines and elsewhere may
receive an equal share in proportion to their respective credits.
191

e) Claims duly proved against the estate of an insolvent resident of the
Philippines, the executor or administrator having had the opportunity to
contest such claims, shall be included in the certified list of claims proved
against the deceased. The owners of such claims shall be entitled to a just
distribution of the estate in accordance with the preceding rules if the property
of such deceased person in another country is likewise equally apportioned to
the creditors residing in the Philippines and other creditors, according to their
respective claims.
192

3. The payment of debts of the deceased shall be made pursuant to the
order of payment issued by the probate court
193
.

Z. TIME FOR PAYING DEBTS AND LEGACIES

The executor or administrator shall pay the debts and legacies of the deceased
within a period of time fixed by the court, which shall not exceed one (1) year, but
the court may, on motion of the executor or administrator and after hearing, extend
the time as the circumstances of the estate require, not exceeding six (6) months for
a single extension, but the whole period allowed to the original executor or
administrator shall not exceed two (2) years.
194

187
Id., Sec. 4.
188
Id., Sec. 7.
189
Id., Sec. 8.
190
Id.
191
Id., Sec. 9.
192
Id., Sec. 10.
193
194
Id., Sec. 15.

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AA. WHEN ORDER OF DISTRIBUTION OF RESIDUE MADE

Under Rule 90, Section 1 of the Rules of Court, the properties of the estate
shall only be distributed after the payment of the debts, funeral charges, allowance
of the widow, inheritance tax, if any, and other expenses on the application of the
executor or administrator, except when authorized by the Court.
195

BB. COLLATION

Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator.
196

Every compulsory heir, who succeeds with other compulsory heirs, must bring
into the mass of the estate any property or right which he may have received from
the decedent, during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the legitime
of each heir, and in the account of the partition.
197

Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator. Collation is only required of compulsory
heirs succeeding with other compulsory heirs and involves property or rights
received by donation or gratuitous title during the lifetime of the decedent. The
purpose is to attain equality among the compulsory heirs in so far as possible for it is
presumed that the intention of the testator or predecessor in interest making a
donation or gratuitous transfer to a forced heir is to give him something in advance
on account of his share in the estate, and that the predecessor's will is to treat all his
heirs equally, in the absence of any expression to the contrary. Collation does not
impose any lien on the property or the subject matter of collationable donation. What
is brought to collation is not the property donated itself, but rather the value of such
property at the time it was donated, the rationale being that the donation is a real
alienation which conveys ownership upon its acceptance, hence any increase in
value or any deterioration or loss thereof is for the account of the heir or donee.
198

195
Silverio, Jr., v. Court of Appeals, G.R. No. 178933, September 16, 2009, 600 SCRA 1.
196
Vizconde v. Court of Appeals, G.R. No. 118449, February 11, 1998, 286 SCRA 217.
197
CIVIL CODE, Art. 1061.
198
Supra note 196.

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CC. ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND
ADMINISTRATORS

1. Admi nistrator not liable or cannot profit from the increase or suffer loss
from the decrease. No executor or administrator shall profit by the increase, or
suffer loss by the decrease or destruction, without his fault, of any part of the
estate. An executor or administrator must account for the excess when any part
of the estate is sold for more than the appraised value, and if any is sold for less,
the executor or administrator is not responsible for the loss, if the sale has been
justly made. If the executor or administrator settles any claim against the estate
for less than its nominal value, the executor or administrator is entitled to charge
in his account but only the amount actually paid on the settlement.
199
Moreover,
no executor or administrator shall be accountable for debts due the deceased
which remain uncollected without his fault.
200

2. Accountability for income from realty used by him. If the executor or
administrator uses or occupies any part of the real estate, he shall account for it
as may be agreed upon between the executor or administrator and the parties
interested or adjusted by the court with their assent. If the parties do not agree,
the amount may be ascertained by the court, whose determination shall be
final.
201

3. Liability of executor or administrator for delay. When an executor or
administrator incurs unreasonable delay in collecting the debts or selling the
estate of the deceased, or neglects to pay over the money he has in hand, and
the value of the estate is lessened or unnecessary cost or interest accrue, or the
persons interested suffers loss, the damage sustained may be charged against
the executor or administrator and he shall be liable on the bond.
202

4. Necessary expenses allowed. An executor or administrator shall be
allowed the necessary expenses in the care, management, and settlement of the
estate, and for his services, four (4) pesos per day for the time actually and
necessarily employed, or a commission upon the value of so much of the estate
as comes into his possession and is finally disposed
203
of in the payment of
debts, expenses, legacies, or distributive shares, or by delivery to heirs or
devisees, of:

199
200
Id., Sec. 3.
201
Id., Sec. 4.
202
Id., Sec. 5.
203
Id., Sec. 7.

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i. 2% of the first P 5,000
ii. 1% of more than P 5,000 but not more than P 30,000;
iii. % of more than P 30,000, but not more than P 100,000; and
iv. % of more than P 100,000.

5. Greater sum allowed in special cases. But in any special cases, where the
estate is large, and the settlement is attended with great difficulty requiring a high
degree of capacity on the part of the executor or administrator
204
a greater sum
may be allowed by the court. If objection to the fees allowed be taken, the
allowance may be re-examined on appeal.
205
When the deceased by will makes
some other provision for the compensation of the executor, it shall be a full
satisfaction for services rendered, unless by a written instrument filed in the court
the executor renounces all claims to the compensation provided in the will.
206

6. Compensation of two or more executors. If there are two or more
executors or administrators, the compensation shall be apportioned among them
by the court according to the services actually rendered by them respectively.
207

7. Attorneys fees. If the executor or administrator is a lawyer, he shall not
charge against the estate any professional fees for legal services rendered,
208

but may employ the services of an attorney.
209
As a general rule, it is the
executor or administrator who is primarily liable for attorney's fees due to the
lawyer who rendered legal services for the executor or administrator in relation to
the settlement of the estate. The executor or administrator may seek
reimbursement from the estate for the sums paid in attorney's fees if it can be
shown that the services of the lawyer redounded to the benefit of the estate.
210

8. Recourse of lawyer if executor or administrator refuses to pay attorneys
fees. The Supreme Court, in the case of Salonga Hernandez & Allado v. Pascual
and Court of Appeals,
211
held that if the executor or administrator refuses to pay
the attorney's fees, the lawyer has two modes of recourse. First, the lawyer may
file an action against the executor or administrator, but in his/her personal
capacity and not as administrator or executor. Second, the lawyer may file a
petition in the testate or intestate proceedings, asking the court to direct the

204
De Gala-Sison v. Madella, et.al., G.R. No. L-24584, October 30, 1975, 67 SCRA 478.
205
206
Id.
207
Id.
208
Id.
209
Quasha Ancheta Pena v. LCN Construction Corp., G.R. No. 174873, August 26, 2008, 563 SCRA 426.
210
Gonzalez-Orense v. Court of Appeals, G.R. No. 80526, J uly 18, 1988, 163 SCRA 477.
211
G.R. No. 127165, May 2, 2006, 488 SCRA 449.

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payment of attorney's fees as an expense of administration. If the second mode
is resorted to, it is essential that notice to all the heirs and interested parties be
made so as to enable these persons to inquire into the value of the services of
the lawyer and on the necessity of his employment.

9. When executor or administrator shall render an account. It is mandatory
for an administrator to render an account within one (1) year from appointment.
The only exception is when the court directs otherwise by reason of extensions of
time within which to present claims against the estate, pay the debts or dispose
of the assets of the estate.
212
The heirs, legatees, and creditors of the estate and
the executor or administrator may be examined on oath on any matter relating to
an administration account.
213
Before the account of an executor or administrator
is allowed, notice shall be given to persons interested of the time and place of
examining and allowing the same; and such notice may be given personally or by
advertisement in a newspaper or newspapers, or both, as the court directs.
214
A
person liable as surety in respect to such account may, upon application, be
admitted as party to such accounting.
215

DD. DISTRIBUTION AND PARTITION

Except as otherwise expressly provided under the Rules, every executor or
administrator is chargeable as follows: 1) with the whole of the estate of the
deceased which has come into his possession, at the value of the appraisement
contained in the inventory; 2) with all the interest, profit, and income of such estate;
and, 3) with the proceeds of so much of the estate as is sold by him, at the price at
which it was sold.
216

The distribution of the estate can only be made after strict compliance with the
provisions of the Rules of Court.
217
Hence, the estate may be distributed only if the
debts, funeral charges, expenses of administration, the allowance to the widow and
inheritance tax, if there are any, have been paid

EE. ACCOUNTING OF ALL EXPENSES AND BOND

In estate settlement proceedings, there is a proper procedure for the
accounting of all expenses for which the estate must answer. However, the heirs or
distributees of the properties may take possession thereof even before the

212
Kalaw v. Intermediate Appellate Court, G.R. No. 74618, September 2, 1992, 289 SCRA 213.
213
214
Id., Sec. 10.
215
Id., Sec. 11.
216
Id., Sec. 1.
217
Id., Rule 90.

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settlement of accounts, as long as they first file a bond conditioned on the payment
of the estates obligations.
218

FF. ISSUE AS TO EXPENSES THAT REMAIN UNSETTLED

Where there remains an issue as to the expenses chargeable to the estate,
partition is inappropriate such as expenses related to the deceased persons final
illness and burial that have not been properly settled. Thus, in one case, the heirs
have to submit their fathers estate to settlement because the determination of these
expenses cannot be done in an action for partition.

GG. JUDICIAL EXPENSES OF THE TESTAMENTARY OR INTESTATE
PROCEEDINGS

In one case, the Supreme Court construed the phrase "judicial expenses of the
testamentary or intestate proceedings" as not including the compensation paid to a
trustee of the decedent's estate when it appeared that such trustee was appointed
for the purpose of managing the decedent's real estate for the benefit of the
testamentary heir. The same is true with premiums paid on the bond filed by the
administrator as an expense of administration since the giving of a bond is in the
nature of a qualification for the office, and not necessary in the settlement of the
estate.
219

HH. ADVANCE DISTRIBUTION

No distribution shall be allowed until the payment of the obligations has been
made and provided it refers to a part of the estate that is not affected by any
controversy and the distributees or any of them give a bond in a sum to be fixed by
the court conditioned for the payment of the obligations within such time as the court
directs.
220
A judge commits a grave abuse of discretion when he orders a partial
distribution of the estate without the payment of estate taxes.
221

II. DISTRIBUTION OF RESIDUE OF ESTATE

The court, on the application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and the proportions, or

218
Figuracion-Gerilla v. Vda. de Figuracion, G.R. No. 154322, August 22, 2006, 499 SCRA 484.
219
Commissioner of Internal Revenue v. Court of Appeals, et. al., G.R. No. 123206, March 22, 2000, 328
SCRA 666.
220
Supra note 209.
221
Vera v. Navarro, G.R. No. 27745, October 18, 1977, 79 SCRA 408.

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parts, to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession.

JJ. WHEN FINAL LIQUIDATION MAY BE SET ASIDE

The only instance in which a party interested in a probate proceeding may have
a final liquidation set aside is when he is left out by reason of circumstances beyond
his control or through mistake or inadvertence not imputable to negligence. Even
then, according to the Supreme Court, the better practice to secure relief is
reopening of the same case by proper motion within the reglementary period,
instead of an independent action, the effect of which, if successful, would be for
another court or judge to throw out of decision or order already final and executed
and reshuffle properties long ago distributed and disposed of.
222

KK. 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. The project of partition is
a proposal for the distribution of the hereditary estimates and determines the
persons entitled thereto.
223

LL. EXPENSES OF PARTITION

Expenses of partition may be paid by the executor or administrator when it
appears equitable to the court and not inconsistent with the intention of the testator,
otherwise, they shall be paid by the parties in proportion to their respective shares or
interest in the premises and the apportionment shall be settled and allowed by the
court enforceable by execution.
224

MM. FINAL ORDER OF PARTITION AND RECORDING OF THE ORDER OF
PARTITION

Certified copies of final orders and judgments of the court relating to the estate
or partition shall be recorded in the registry of deeds of the province where the
property is situated.
225

222
Tirso T. Reyes v. Barreto-Datu, G.R. No. 17818, J anuary 27, 1967, 19 SCRA 85.
223
Moran, COMMENTS ON THE RULES OF COURT, 1997 ed., Vol. 3, pp. 688-689.
224
225
Id., Sec. 4.

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III. ESCHEATS

A. DEFINITION

A proceeding whereby the real and personal property of a deceased person
become the property of the State upon his death without leaving any will or legal
heirs.
226

B. WHEN FILED

A petition to escheat property is filed when a person dies intestate, leaving
behind real or personal property but without an heir.
227

C. WHO FILES PETITION

The petitioner is the Solicitor General or his representative in behalf of the
Republic of the Philippines.
228

D. WHERE FILED

The petition is filed in the Regional Trial Court where the deceased last resided
or in which he had property if he resided out of the Philippines
229

E. CONTENTS OF PETITION

The petition shall set forth the facts and pray that the estate of the deceased be
declared escheated.
230

F. ORDER OF HEARING

The court shall fix as date and place for the hearing of the petition, which date
shall not be more than six (6) months after the rendition of the order.
231

226
Municipal Council v. Colegio de San Jose, Inc., 65 Phil. 323 (1938).
227
RULES OF COURT, Rule 91, Sec.1.
228
Id.
229
Id.
230
Id.
231
The Rules use the word entry but it means rendition.

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G. PUBLICATION

The order shall also direct that a copy thereof shall be published at least once a
week for six (6) successive weeks in some newspaper of general in the province as
the court deems best.
232

H. JUDGMENT

After hearing, the court shall adjudge the properties escheated after payment of
just debts and charges, and the properties shall be assigned pursuant to law as
follows:

1. The personal estate shall be assigned to the municipality or city where the
deceased last resided in the Philippines;
2. The real estate shall be assigned to the municipalities or cities,
respectively, in which the same is situated.
3. If the deceased never resided in the Philippines, the whole estate may be
assigned to the respective municipalities or cities where the same is located.
4. Such estate shall be for the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.
233

I. JUDGMENT IN ESCHEAT IS CONCLUSIVE AGAINST ALL PERSONS WITH
NOTICE

A judgment in escheat proceedings when rendered by a court of competent
jurisdiction is conclusive against all persons with actual or constructive notice, but
not against those who are not parties or privies thereto. As held in Hamilton v.
Brown,
234
"a judgment of escheat was held conclusive upon persons notified by
advertisement to all persons interested.

J. JURISPRUDENCE

1. Escheat judgment that has become final cannot be nullified. Absolute
lack on the part of petitioners of any dishonest intent to deprive the appellee of
any right, or in any way injure him, constitutes due process of law, proper notice
having been observed. With the lapse of the 5-year period, therefore, private
respondent has irretrievably lost her right to claim and the supposed discovery of
the deeds of donation is not enough justification to nullify the escheat judgment
which has long attained finality.
235

232
Id., Sec. 2.
233
Id., Sec. 3.
234
March 2, 1896, 161 U.S. 256.
235
Republic v. Court of Appeals, G.R. No. 143483, J anuary 31, 2002, 375 SCRA 484.

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2. Escheat proceedings cannot be converted into a settlement proceeding.
The court acquired jurisdiction to hear the petition for escheat by virtue of the
publication of the petition for escheat. The jurisdiction acquired can not be
converted into one for the distribution of the properties of the said decedents. For
such proceedings (for the distribution of the estate of the decedents) to be
instituted, the proper parties must be presented and the proceedings should
comply with the requirements of the Rule. Hence, the court of First Instance did
not have the power to order, or to proceed with, the distribution of the estates of
the decedents in these escheat proceedings, and adjudicate the properties to the
oppositors.
236

3. Doctrine of pari delicto in reversion or escheat proceedings. The
Supreme Court ruled in one case
237
that although ownership of the land cannot
revert to the original sellers, because of the doctrine of pari delicto, the Solicitor
General may initiate an action for reversion or escheat of the land to the State,
subject to proper defenses.

4. When reversion will not prosper. When a Filipino citizen sells land to an
alien who later sells the land to a Filipino, the invalidity of the first transfer is
corrected by the subsequent sale to a citizen. Similarly, where the alien who buys
the land subsequently acquires Philippine citizenship, the sale was validated
since the purpose of the constitutional ban to limit land ownership to Filipinos has
been achieved. In short, the law disregards the constitutional disqualification of
the buyer to hold land if the land is subsequently transferred to a qualified party
or the buyer himself becomes a qualified party. Hence, reversion proceedings will
no longer prosper since the land is now in the hands of Filipino citizens.

K. PERMANENT TRUST

The court may order the establishment of a permanent trust so that only income
from the property shall be used.
238
Article 1013 of the Civil Code specifically allows a
perpetual trust, because this provision of law is inapplicable. Suffice it to state that
the article is among the Civil Code provisions on intestate succession, specifically on
the State inheriting from a decedent, in default of persons entitled to succeed. Under
this article, the allowance for a permanent trust, approved by a court of law, covers
property inherited by the State by virtue of intestate succession. The article does not
cure a void testamentary provision which did not institute an heir. Accordingly, the

236
In the matter of escheat proceedings of the estate of the deceased Anne Fallon Murphy and Tomas
Fallon married to Julia Fallon v. Bezore, et al., G.R. No. L-14157, October 26, 1960.
237
Republic v. Register of Deed of Roxas City, G.R. No. 158230, J uly 16, 2008, 558 SCRA 450.
238

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article cannot be applied to dispose of herein decedents properties.
239
If the
deceased never resided in the Philippines, the whole estate may be assigned to the
respective municipalities or cities where the same is located. Such estate shall be for
the benefit of public schools, and public charitable institutions and centers in said
municipalities or cities.
240

L. FILING OF CLAIM WITHIN FIVE (5) YEARS.

If a person entitled to the estate escheated appears and files a claim with the
court within five (5) years from the date of the judgment, he shall obtain possession
and title to the property. If it has already been sold, the municipality or city shall be
accountable to him for the proceeds, after deducting expenses for the care of the
estate, but a claim not made within said time shall be forever barred.

M. OTHER ESCHEAT ACTIONS

Actions for reversion or escheat of properties alienated in violation of the
Constitution or of any statute shall be governed also by Rule 91, except that the
action shall be instituted in the province where the land lies in whole or in part.

N. JURISPRUDENCE

1. Property transferred to a Filipino citizen can no longer be subject of
reversion. In a case for reversion that was initiated only after forty (40) years
from the promulgation of the case of Dinglasan v. Lee Bun Ting,
241
the Supreme
Court held that the sale of Lot No. 398 subject matter of the case was null and
void for violating the constitutional prohibition on the sale of land to an alien. In
addition, the Court stated that if petitioner had commenced reversion
proceedings when Lot No. 398 was still in the hands of the original vendee who
was an alien disqualified to hold title thereto, then reversion of the land to the
State would undoubtedly be allowed. However, in this case, when petitioner
instituted the action for reversion of title in 1995, Lot No. 398 had already been
transferred by succession to private respondents who are Filipino citizens. Since
Lot No. 398 has already been transferred to Filipino citizens, the flaw in the
original transaction is considered cured.
242

239
Orendain v. Trusteeship of the Estate of Dona Margarita Rodriguez, G.R. No. 168660, J une 30, 2009,
591 SCRA 285.
240
Id.; Republic of the Philippines v. Intermediate Appellate Court and the City of Zamboanga, G.R. No.
73831, February 27, 1987, 148 SCRA 271.
241
G.R. No. 5996, J une 27, 1956.
242
Republic v. Register of Deeds of Roxas City, G.R. No. 158230, J uly 16, 2008, 558 SCRA 450.

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2. Nullity of repudiation does not operate to convert the property into res
nulius for escheat in favor of government. In another case, the Supreme
Court held that the acceptance or repudiation of an inheritance, once made is
irrevocable and cannot be impugned, except when it was made through any of
the causes that vitiate consent or when an unknown will appears. Nevertheless,
the nullity of the repudiation does not ipso facto operate to convert the parcels of
land into res nullius to be escheated in favor of the Government. The repudiation
being of no effect whatsoever, the parcels of land should revert to their private
owners. And a party, although an American citizen, is qualified by hereditary
succession to own the property subject of the litigation.
243

O. ESCHEAT OF UNCLAIMED BALANCES
Unclaimed balances which include credits or deposits of money, bullion,
security or other evidence of indebtedness of any kind, and interest thereon with
banks, in favor of any person unheard from for a period of ten (10) years or more,
together with the increase and proceeds thereof shall be deposited with the Insular
Treasurer to the credit of the Government of the Philippine Islands as the Philippine
Legislature may direct.
244

P. OTHER ESCHEAT ACTIONS

Actions for reversion or escheat of properties alienated in violation of the
Constitution or of any statute shall be governed also by Rule 91, except that the
action shall be instituted in the province where the land lies in whole or in part.

1. Demand drafts not presented for payment are not credits subject to
escheat. In a relevant case, the Supreme Court found that since it is admitted
that the demand drafts involved have not been presented either for acceptance
or for payment, the inevitable consequence is that the appellee bank never had
any chance of accepting or rejecting them. Verily, the appellee bank never
became a debtor of the payee concerned and, as such, the aforesaid drafts
cannot be considered as credits subject to escheat within the meaning of the
law.
245

243
Republic v. de Guzman, G.R. No. 132964, February 18, 2000, 326 SCRA 267.
244
Act. No. 3936, Sec. 1. As amended by Pres. Decree No. 679; See Republic v. City of Manila, No.
30381, August 30, 1988, 165 SCRA 11 .

245
Republic v. Philippine National Bank, G.R. No. 16106, December 30, 1961, 3 SCRA 851.

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IV. GUARDIANSHIP

A. DEFINITION
Persons who, though of sound mind but by reason of age, disease, weak mind
or other similar causes are incapable of taking care of themselves and their property
without outside aid, may properly be placed under guardianship.
246

It is a trust relation of the most sacred character, in which one person, called
the guardian, acts for another, called the ward, that the law regards as incapable of
managing his own affairs.
247
A guardian is a person lawfully invested with the power
and charged with the duty of taking care of the person and managing the property
and rights of another person who, for defect of age, understanding, or self-control, is
considered incapable to administer such persons own affairs.
248

B. NECESSITY FOR GUARDIANSHIP

The purpose of hearing a petition for appointment of a guardian under Rule 93
of the Rules of Court is to determine, first, whether a person is indeed a minor or an
incompetent who has no capacity to care for himself and/or his properties; and,
second, who is most qualified to be appointed as his guardian. The Rules
presuppose that those who best could help the court settle such issues are those
who are closest to and most familiar with the alleged minor or incompetent.
249

1. Guardian of an i ncompetent must be notified for a court to render
judgment against him but no notices to creditors are required for
appointment of a guardian. A court will have no jurisdiction to render judgment
against one adjudged physically and mentally incompetent to manage personal
affairs where no guardian was appointed upon whom summons and notice of the
proceedings might be served.
250
However, the rules do not require that creditors
of the minor or incompetent person be likewise identified and notified as their
presence is not essential to the proceedings for appointment of a guardian.
251

2. A child or minor person. Minor children refers to persons below eighteen
(18) years of age or those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.
252

246
Hernandez v. San Juan-Santos, G.R. No. 166470, August 7, 2009, 595 SCRA 464.
247
Francisco v. Court of Appeals, G.R. 57438, J anuary 31, 1984, 127 SCRA 371.
248
People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324.
249
Alamayri v. Pabare, G.R. No. 151243, April 30, 2008, 553 SCRA 147.
250
Gorostiaga v. Sarte, 68 Phil. 4 (1939).
251
Alamayri v. Pabale, G.R. No. 151243, April 30, 2008, 553 SCRA 146.
252
Rep. Act No. 7610, Sec. 3(a).

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3. An incompetent person as the subject of guardianship. Incompetents
include the following: (1) individuals suffering from the penalty of civil interdiction;
(2) hospitalized lepers; (3) prodigals; (4) deaf and dumb who are unable to read
and write; (5) individuals who are of unsound mind even though with lucid
intervals; and, (6) individuals who are not of unsound mind, but by reason of age,
disease, weak mind, and other similar causes cannot, without outside aid, take
care of themselves and manage their property, becoming easy prey for deceit
and exploitation.
253

a) Comatose person is an incompetent. The Supreme Court has
considered a person in comatose or semi-comatose condition, a victim of
stroke or cerebrovascular accident without motor and mental faculties and
with diagnosis of brain stem infract as incompetent
254
and, therefore,
requires a petition for guardianship to be filed and not a petition for
administration of conjugal partnership property under the Family Code.

b) Person suffering from schizophrenia does not necessarily lose his
competence to intelligently dispose his property. In one case, the
Supreme Court found that by merely alleging the existence of schizophrenia,
petitioners failed to show substantial proof that at the date of the donation,
J une 16, 1951, Feliciano Catalan had lost total control of his mental faculties
and the lower courts correctly held that Feliciano was of sound mind at that
time and that this condition continued to exist until proof to the contrary was
adduced. Sufficient proof of his infirmity to give consent to contracts,
according to the Supreme Court, was only established when the Court of First
Instance of Pangasinan declared him an incompetent on December 22,
1953.
255

4. Parents as guardians. When the value of the property of the child under
parental authority is P 2,000 or less, the father or the mother, without the
necessity of court appointment, shall be the legal guardian. However, when the
property of the child is more than P 2,000, the father or the mother shall be
considered guardians of the childs property with the duties and obligations of
guardians and shall file the required petition for guardianship. For good reasons
the court may, however, appoint another suitable person.
256

253
254
Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000, 346 SCRA 247.
255
Catalan et. al., v. Basa, G.R. No. 159567, J uly 31, 2007, 528 SCRA 645.
256

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C. KINDS OF GUARDIANS

There are three kinds of guardians under the law: 1) the legal guardian, who is
such by provision of law without the need of judicial appointment, as in the case of
the parents over the persons of their minor children, or the father, or in his absence
the mother, with respect to the property of the minor children not exceeding
P50,000.00 in value; 2) the guardian ad litem, who is a competent person appointed
by the court for purposes of a particular action or proceeding involving a minor; and,
3) the judicial guardian, or a person appointed by the court over the person and/or
property of the ward to represent the latter in all civil acts and transaction.
257

D. WHO MAY FILE A PETITION, JURISDICTION AND VENUE IN
GUARDIANSHIP PROCEEDING

Under the Rules of Court, any relative, friend or other person in behalf of an
incompetent who has no parent or guardian or the minor if fourteen (14) years of age
or over, may petition for the appointment of a general guardian for the person or
estate, or both, of such minor or incompetent.
258
The guardianship court, however,
cannot adjudicate title.
259
And a court order authorizing the sale of a wards property
is subject to appeal, not certiorari and mandamus.
260

1. Compensation and expenses. The guardian is allowed reasonable
expenses and such compensation as the court deems just, not exceeding 15% of
the net income of the ward.
261

2. Grounds for removal of a guardian. A guardian may be removed in the
following instances:
1) becomes insane;
2) is otherwise incapable of discharging the trust;
3) becomes unsuitable;
4) has wasted or mismanaged the estate; and,
5) has failed for 30 days after it is due to render an account or make a
return.
262

However, a guardian cannot be removed or allowed to resign unless his
accounting has been approved by the court.
263

257
Id.; People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324.
258
259
Parco v. Court of Appeals, G.R. No. 33152, J anuary 30, 1982, 111 SCRA 262.
260
Lopez v. Teodoro, 86 Phil 499 (1950).
261
262
263
Francisco v. Court of Appeals, G.R. No. 57438, J anuary 3, 1984, 127 SCRA 371.

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If the petition refers to an adult incompetent, it shall be filed in the regular
Regional Trial Court.
264
If the ward transfers bona-fide residence, the court may
transfer the guardianship case to the court of the place of the wards residence
where real property may have been acquired and additional court fees are not
required.
265

3. Rule on Guardianship of Mi nor Children. On May 1, 2003 the Supreme
Court issued A.M. No. 03-02-05-SC, otherwise known as the Rule on
Guardianship of Minors, which applies to petitions for guardianship over the
person or property, or both, of a minor child. On grounds authorized by law, a
relative or other person on behalf of a minor, or the minor if fourteen (14) years of
age or over, or the Secretary of the Department of Social Welfare and
Development (DSWD), and the Secretary of Health in the case of an insane
minor who has to be hospitalized, may file a petition for guardianship.
266

E. VENUE

A petition for guardianship involving a minor is filed with the family court or
Regional Trial Court in places where there are no designated family court where the
child resides. If the minor resides in a foreign country, the petition is filed with the
family court of the province or city where the property of the minor or any part
thereof is situated.
267

F. GROUNDS FOR APPOINTMENT OF GUARDIAN OF A MINOR CHILD
UNDER THE SUPREME COURT RULE

The grounds for the appointment of a guardian are as follows: 1) death,
continued absence, or incapacity of parents; 2) suspension, deprivation or
termination of parental authority; 3) remarriage of surviving parent, if the latter Is
found unsuitable to exercise parental authority; and, 4) when the best interest of
the minor so requires.
268

G. FACTORS CONSIDERED IN APPOINTING A GUARDIAN FOR A MINOR
CHILD

In appointing a guardian, the court considers the following:
1) moral character;

264
265
Id., Sec. 3.
266
A.M. No. 03-02-05-SC, May 1, 2003, Sec. 2.
267
Id., Secs. 2 and 3.
268
Id., Sec. 4.

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2) physical, mental and psychological condition;
3) financial status;
4) relationship of trust with the minor;
5) availability to exercise the powers and duties of a guardian for the full period
of the guardianship;
6) lack of conflict of interest with the minor; and,
7) ability to manage the property of the minor.
269

H. ORDER OF PREFERENCE IN THE APPOINTMENT OF GUARDIAN FOR A
MINOR CHILD

In default of parents or a court-appointed guardian, the court may appoint a
guardian of the person or property, or both, of a minor, in the following order of
preference:
1) surviving grandparent
270
and in case several grandparents survive, the court
selects any of them;
2) oldest brother or sister over twenty-one (21) years of age, unless unfit or
disqualified;
3) actual custodian over twenty-one (21) years of age, unless unfit or
disqualified; or,
4) any other person, who in the discretion of the court, would serve the best
interest of the minor.
271

I. BOND REQUIRED AND ITS CONDITIONS

Before entering the execution of the trust, or issuance of letters of
guardianship, an appointed guardian may be required to post a bond in a sum
determined by the court conditioned as follows:
1) within three months after the issuance of letters of guardianship make
inventory of all the property;
2) faithfully execute the duties of the trust;
3) render a true and just account of all the property of the ward; and,
4) perform all orders of the court.
272
If the market value of the property or the
annual income of the child exceeds P50,000.00, the parent furnishes bond in
such amount as the court may determine, but in no case less than 10% of the
value of the property or annual income, to guarantee the performance of the
obligations of guardians.
273

269
Id., Sec. 5.
270
Vancil v. Belmes, G.R. No. 132233, J une 19, 2001, 358 SCRA 707.
271
A.M. No. 03-02-05-SC, May 1, 2003, Sec. 6.
272
273
Id., Sec. 16.

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Q. PERSONS DISQUALIFIED OR CONSIDERED UNFIT TO BE APPOINTED AS
GUARDIANS

Section 1, Rule 137 of the Rules of Court provides that judges or judicial
officers, such as clerks of courts may not sit in any case in which they, their spouse,
or child, is pecuniarily interested, as heir, legatee, creditor or otherwise, or in which
they are related to either party within the sixth degree of consanguinity or affinity, or
to counsel within the fourth degree, computed according to the rules of the civil law,
or in which they have been executor, administrator, guardian, trustee or counsel, or
in which they have presided in any inferior court when their ruling or decision is the
subject of review, without the written consent of all parties in interest, signed by them
and entered upon the record.
274

The disqualification of clerks of court in all levels is provided for under Section
1, Canon 3 of the Code of Conduct of Court Personnel, which states that court
personnel shall avoid conflicts of interest in the performance of their official
duties.
275

The advanced age or non-residence of a person may be considered as
grounds to deny appointment as guardian. In a relevant case, the Supreme Court
found that the conclusion by the trial court that the guardian of advanced age is not
fit to continue is not to be disturbed, particularly with his delay in making an
accounting and filing an inventory. While age alone is not a controlling criterion, it
may be a factor for consideration.
276
Additionally, an American citizen who is a
resident of Colorado, USA will not be able to perform responsibilities of a guardian
over a person in the Philippines and may only delegate the same.
277

R. TERMINATION OF GUARDIANSHIP, REMOVAL AND RESIGNATION OF A
GUARDIAN

When a guardian becomes insane or incapable of discharging the trust,
unsuitable, wasted or mismanaged the property, or failed to render an account or
make a return for thirty (30) days after it is due, the court may, on notice, remove
the guardian and require surrender of the property of the ward to the person found
to be lawfully entitled. Since the Rules enumerate the grounds for removal of a
guardian, a guardian cannot be legally removed from office except for the causes
therein mentioned. Accordingly, conflict of interest has been held sufficient ground
for removal, premised on the logic that antagonistic interests would render a
guardian unsuitable for the trust. To the extent that a court uses its discretion in
appraising whether a person is unsuitable or incapable of discharging his trust, that

274
A.M. No. 08-4-1-SC, Re: Inhibition and/or Disqualification of Clerks of Court in all levels under Sec. 1,
Canon III of the Code of Conduct of Court Personnel, J une 3, 2008.; RULES OF COURT, Rule 137, Sec. 1.
275
Id.
276
Francisco v. Court of Appeals, G.R. No. 57438, J anuary 31, 1984, 127 SCRA 371.
277
Vancil v. Belmes, G.R. 132223, J une 19, 2001, 358 SCRA 707.

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much it can be said that removal is discretionary. But the discretion must be
exercised within the law, and when the latter has laid down the grounds for removal
of a guardian, discretion is limited to inquiring as to the existence of any of those
grounds.
278

S. EFFECT OF REMOVAL OR RESIGNATION OF GUARDIAN

The court may allow the guardian to resign for justifiable causes and on
removal or resignation of the guardian, the court appoints a new one. No motion for
removal or resignation is granted unless the guardian submits the proper
accounting of the property of the ward and the court has approved the same.
279

T. TERMINATION OF GUARDIANSHIP WHEN WARD COMES OF AGE OR
DIES

The court, motu proprio or on verified motion of any person allowed to file a
petition for guardianship, may terminate the guardianship on the ground that the
ward has come of age or has died. The guardian notifies the court of such fact
within ten days from its occurrence.
280
However, a guardian cannot be removed
without approval of final accounting from the court.

U. AMENDMENT TO THE RULES OF COURT

A.M. No. 03-02-05-SC dated May 1, 2003 amends Rules 92 to 97 inclusive of
the Rules of Court on guardianship of minors. Guardianship of incompetents who
are not minors continues to be under the jurisdiction of the regular courts and is
governed by the Rules of Court.
281

278
Gonzales v. Aguinaldo, G.R. No. 74769, September 28, 1990, 190 SCRA 112; In the matter of the
guardianship of Carmen Padilla Vda. De Bengson v. Philippine National Bank, G.R. No. 17066,
December 28, 1961, 3 SCRA 751.
279
RULE ON GUARDIANSHIP OF MINORS, Sec. 24.
280
Id., Sec. 25.
281
Id., Sec. 27.

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V. ADOPTION

A. DEFINITION

Adoption is a means devised in law so that persons who are otherwise
childless or need one who has developed, and who are capable of giving the love,
care and attention to a child that normally only the natural parents can tender, may
take the child as their own.
282
There is without any prescribed action that may be
instituted for the judicial confirmation of a de facto adoption. Nor do our adjective
and substantive laws on adoption provide for such a proceeding. In fact, the only
proper and authorized procedure relative to adoption is outlined in the rule on
adoption itself. No action or proceeding for judicial confirmation of a de facto
adoption is authorized in this jurisdiction. Furthermore, by its very nature and
purpose, a decree of adoption can never be made to retroact.
283

The act of adoption fixes a status, vis., that of parent and child. More
technically, it is an act by which relations of paternity and affiliation are recognized
as legally existing between persons not so related by nature. It has been defined as
the taking into ones family of the child of another as son or daughter and heir and
conferring on it a title to the rights and privileges of such. The purpose of an
adoption proceeding is to effect this new status of relationship between the child and
its adoptive parents, the change of name which frequently accompanies adoption
being more an incident than the object of the proceeding.
284

B. GOVERNING LAWS

1. The basic governing law on domestic adoption is Republic Act No. 8552,
which is An Act Establishing the Rules and Policies on the Domestic Adoption of
Filipino Children. It was approved on February 25, 1998. It took effect fifteen
(15) days after its complete publication in the Official Gazette or in at least two
newspaper of general circulation.

2. Inter-country or foreign adoptions, however, are governed by Republic Act
No. 8043, which is An Act Establishing the Rules to Govern Inter-Country
Adoption of Filipino Children approved on J une 2, 1995.

3. Prior laws on adoption include provisions in the Child and Youth Welfare
Code,
285
the Family Code and Executive Order No. 91.
286

282
Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3
rd
Ed., 1988, p. 37.
283
Office of the Court Administrator v. Gines, A.M. No. RTJ -92-802, J uly 5, 1993, 224 SCRA 261.
284
Republic of the Philippines v. Court of Appeals and Maximo Wong, G.R. No. 97906, May 21, 1992,
209 SCRA 189.
285
Pres. Decree No. 603.
286
Effective date December 17, 1986, amending Arts. 28, 29, 30, 31, 33 and 35 of Pres. Decree No. 603.

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4. The Family Code expressly repealed Articles 17-19, 27-31, 39-42 of the Civil
Code and Articles 27-29, 31, 33 and 35 of Presidential Decree No. 603.

5. And to implement the provisions of the Family Courts Act, the Supreme Court
promulgated the Rule on Adoption,
287
which supersedes Rules 99 and 100 of
the Rules of Court on adoption.

C. DOMESTIC ADOPTION

1. Coverage. The Rule covers the domestic adoption of Filipino children.

2. Persons who may adopt. Pursuant to Section 4 of the Rule, the following
persons may adopt: 1) any Filipino citizen of legal age, at least sixteen [16] years
older than the adoptee, except when the adopter is the biological parent of the
adoptee or is the spouse of the adoptees parent; 2) any alien possessing the
same qualifications as above-stated for Filipino and has been living in the
Philippines for at least three (3) continuous years prior to the filing of the petition
for adoption; and 3) the guardian with respect to the ward.

3. Exceptions to the requirements of residency
The requirements on residency and certification of the aliens qualification to
adopt in the country of the alien may be waived for the following: 1] a former
Filipino citizen adopting a relative within the 4
th
degree of consanguinity or
affinity; or 2] a person adopting the legitimate child of the Filipino spouse; or 3] a
person married to a Filipino citizen and seeks to adopt jointly with spouse a
relative within the 4
th
degree of consanguinity or affinity of the Filipino spouse.

4. Joint adoption. Husband and wife shall jointly adopt, except in the following
instances: 1) if one spouse is adopting the legitimate child of one spouse by the
other spouse; 2) if one spouse is adopting own illegitimate child: provided that
the other spouse signified consent thereto; or 3) if the spouses are legally
separated from each other. In case a husband and wife jointly adopt or one
spouse adopts the illegitimate child of the other, joint parental authority is
exercised by both spouses.
288

5. Persons who may be adopted. The following persons may be adopted: 1)
any person below eighteen [18] years of age; 2) the legitimate child of one
spouse, by the other spouse; 3) an illegitimate child; 4) a person of legal age
regardless of civil status, if, prior to the adoption, said person has been
consistently considered and treated by the adopters as their own child; 5) a child
whose adoption was previously rescinded; 6) a child whose biological or

287
RULE ON ADOPTION, A.M. No. 02-6-02-SC, effective August 22, 2002.
288
Id., Sec. 4.

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adoptive parents have died; or, 7) a child not otherwise disqualified by law or the
rules.
289

6. Certification of child adoption by the DSWD. Republic Act No. 9523,
otherwise known as An Act Requiring Certification of the Department of Social
Welfare and Development (DSWD) requires the department to Declare a Child
Legally Available for Adoption as a Pre-requisite for Adoption Proceedings,
made the adoption process administrative in nature as it now only requires a
certification signed by the DSWD Secretary, in lieu of a judicial order. The statute
also gives the DSWD the authority to declare a child eligible for adoption if
deserted or neglected by a parent continuously for more than three (3)
months.

7. Where petition for adoption is filed. The petition for adoption is filed with
the family court of the province or city where the prospective adoptive parents
reside.
290

8. Requirements for petition filed by a Filipino citizen. If filed by a Filipino
citizen, the petition shall comply with Section 7(1) of the Rule by stating the
jurisdictional facts and that the petitioner is of legal age and at least sixteen (16)
years older than the adoptee, unless the adopter is the biological parent of the
adoptee or is the spouse of the adoptees parent.

9. Requirements for petition filed by an alien. A petition for adoption filed by
an alien conforms to the requirements of Section 7(2) of the Rule by alleging the
following jurisdictional facts: 1) that the aliens country has diplomatic relations
with the Republic of the Philippines; 2) legal capacity to adopt in the aliens
country and the latters government allows the adoptee to enter that country as
adopted child and reside there permanently; and 3) the adopter alien has been
living in the Philippines for at least three [3] continuous years prior to the filing of
the petition and maintains such residence until the adoption decree is entered.

10. Exceptions to requirements of certification of the aliens qualification
to adopt in the country and residency. Section 7(2) (e) of the Rule provides
that the certification of aliens qualification to adopt in the country and residency
requirements may be waived if the alien: 1) is a former Filipino citizen who seeks
to adopt a relative within the 4th degree of consanguinity or affinity; 2) seeks to
adopt the legitimate child of Filipino spouse; or, 3) is married to a Filipino citizen
and seeks to adopt jointly with spouse a relative within the 4th degree of
consanguinity or affinity of the Filipino spouse.

289
Id., Sec. 5.
290
Id., Sec. 6.

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11. Child and Home Study Reports. In preparing the child study report on the
adoptee, the concerned social worker shall verify with the Civil Registry the real
identity and registered name of the adoptee. If the birth of the adoptee was not
registered with the Civil Registry, it shall be the responsibility of the social worker
to register the adoptee and secure a certificate of foundling or late registration, as
the case may be.

The social worker shall establish that the child is legally available for
adoption and the documents in support thereof are valid and authentic, that the
adopter has sincere intentions and that the adoption shall inure to the best
interests of the child.

In case the adopter is an alien, the home study report must show the legal
capacity to adopt and that his government allows the adoptee to enter his country
as his adopted child in the absence of the certification required under Section
7(b) of Rep. Act No. 8552.

If after the conduct of the case studies, the social worker finds that there are
grounds to deny the petition, he shall make the proper recommendation to the
court, furnishing a copy thereof to the petitioner.
291

12. Supervised trial custody. Section 15 of the Rule provides that before
issuing the decree of adoption, the court gives the adopter trial custody of the
adoptee for a period of at least six (6) months and monitored by the social
worker. During the period, temporary parental authority is vested in the adopter.
The court, motu proprio or on motion of any party, may reduce the period or
exempt the parties if it finds that the same shall be for the best interest of the
adoptee.

13. Completion of six (6) months trial custody by an alien adopter. An
alien adopter must complete the six (6) month trial custody, except the following:
1) a former Filipino citizen who seeks to adopt a relative within the 4th degree of
consanguinity or affinity; or 2) one who seeks to adopt the legitimate child of
Filipino spouse; and, 3) one who is married to a Filipino citizen and seeks to
adopt jointly with spouse the latters relative within the 4th degree of
consanguinity or affinity.
292

14. Decree of Adoption. As provided under Section 16 of the Rule, if the
supervised trial custody is satisfactory to the parties and the court is convinced
from the report and the evidence adduced that the adoption redounds to the best
interest of the adoptee, a decree of adoption is issued which takes effect as of
the date the original petition was filed even if the petitioners die before its
issuance. The decree shall:

291
Id., Sec 13.
292
Id., Sec. 15.

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a) State the name by which the child is to be known and registered

b) The use of surname of the biological mother as middle name of the
adopted child is allowed upon adoption by the natural father, as there shall be
liberal construction of adoption laws to promote adoption.
293

c) Order:
1) the Clerk of Court to issue to the adopter a certificate of finality;
2) the adopter to submit a certified true copy of the decree of adoption
and the certificate of finality to the Civil Registrar; and
3) the Civil Registrar of the place where the adoptee was registered as
follows:
a) to annotate on the adoptees original certificate of birth the decree of
adoption within thirty [30] days from receipt of the certificate of finality;
b) to issue a certificate of birth which shall not bear any notation that it
is a new or amended certificate;
c) to seal the original certificate of birth; and,
d) to submit to the court issuing the decree of adoption proof of
compliance within thirty [30] days from receipt of the decree. If the
adoptee is a foundling, the court orders the Civil Registrar where the
foundling was registered, to annotate the decree of adoption on the
foundling certificate and a new birth certificate is ordered prepared by
the Civil Registrar in accordance with the decree.
294

15. Book of adoption. The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each case, compliance by the Civil
Registrar with Section 16(B)(3) and all incidents arising after the issuance of the
decree.
295

16. Rescission of adoption. The adoption may be rescinded based on any of
the following grounds committed by the adopter: 1) repeated physical and verbal
maltreatment by the adopter; 2) attempt on the life of the adoptee; 3) sexual
assault or violence; and, 4) abandonment or failure to comply with parental
obligations.

a) Rescission is available to the adoptee not to the adopting parents.
Adoption, however, being in the best interest of the child, is not subject to
rescission by the adopter. However, the adopter may disinherit the adoptee
for causes provided in Article 919 of the Civil Code.
296
The petition is filed with
the family court of the city or province where the adoptee resides.
297

293
In the Matter of Adoption of Stephanie Nathy Astorga, G.R. No. 148311, March 31, 2005, 454 SCRA
541.
294
RULE ON ADOPTION, A.M.No. 02-6-02-SC, Sec. 16.
295
Id., Sec. 17.
296
Id., Sec. 19.
297
Id., Sec. 20.

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b) Rescission of adoption is not allowed under the Domestic Adoption
Law. In a relevant case, the spouses who adopted a nephew filed a petition
for revocation of the adoption on the ground that the adoptee refused to
change the family name to that of the adopting parents and that the adoptee
neglected them. The Supreme Court disallowed the petition it having been
filed after the Domestic Adoption Law has taken effect under which rescission
of adoption is not allowed.
298

c) Period within which to file petition for rescission of adoption. The
adoptee, if incapacitated, must file the petition for rescission or revocation of
adoption within five (5) years after reaching the age of majority, or if was
incompetent at the time of the adoption, within five (5) years after recovery
from such incompetency.
299
The court shall issue an order requiring the
adverse party to answer the petition within fifteen (15) days from receipt of a
copy thereof.
300

d) Order of rescission. Section 23 of the Rule provides that if the court finds
that the allegations of the petition are true, it shall render judgment ordering
the rescission of adoption and parental authority of the biological parent of the
adoptee, if known, or the legal custody of the Department of Social Welfare
and Development is restored if the adoptee is still a minor or incapacitated
and further declares that the reciprocal rights and obligations of the adopter
and the adoptee to each other are extinguished.

e) Effect of rescission on succession rights. The court shall, under
Section 23 of the Rule, further declare that succession rights revert to its
status prior to adoption, as of the date of judgment of judicial rescission.
Vested rights acquired prior to judicial rescission are be respected. It shall
also order the adoptee to use the name stated in the original birth or foundling
certificate.

f) Cancellation of new birth certificate. Upon rescission of adoption, the
court further orders 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.
301

298
Lahom v. Sibulo, G.R. No.143989, J uly 14, 2003, 406 SCRA 135.
299
RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 21.
300
Id., Sec. 22.
301
Id., Sec. 23.

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D. INTER-COUNTRY ADOPTION

1. Coverage. The provisions apply to inter-country adoption of Filipino children
by foreign nationals and Filipino citizens permanently residing abroad.
302

2. Who may file petition. A verified petition to adopt a Filipino child 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. It may be filed directly with the Inter-Country Adoption Board (ICAB).
303

Only a child legally available for domestic adoption may be the subject of inter-
country adoption.
304

3. Contents of petition. The petition must allege that the petitioner possesses
the following qualifications: 1) at least twenty-seven [27] years of age and at least
sixteen [16] years older than the child to be adopted at the time of application; 2)
if married, the name of the spouse who must be joined as co-petitioner; 3) has
the capacity to act and assume all rights and responsibilities of parental authority
under own national laws; 4) has not been convicted of a crime involving moral
turpitude; 5) eligible to adopt under own national law; 6) can provide the proper
care and support and instill the necessary moral values; 7) agrees to uphold the
basic rights of the child; 8) comes from a country with which the Philippines has
diplomatic relations; and, 9) possesses all the qualifications and none of the
disqualifications.
305

4. Support to the would-be adopted child. The primary consideration in
adoption being the best interest of the child, it follows that the financial capacity
of prospective parents should also be carefully evaluated and considered.
Certainly, the adopter should be in a position to support the would-be adopted
child, or children, The Court held that the monthly income of US$ 1000 in Guam
is not enough to support three children. In one case, a fifty-year-old American
citizen residing in Guam, working as a part-time waitress and earning an average
income of USD$1000 a month was not allowed to adopt three (3) minor children
of a brother due to limited income.
306

5. Order issued if petition is sufficient in form and substance. The court,
after finding that the petition is sufficient in form and substance and the petition is
a proper case for inter-country adoption, immediately transmits the petition to the
Inter-Country Adoption Board (ICAB) for appropriate action.
307

302
Id., Sec. 26.
303
Id., Sec. 28.
304
Id., Sec. 29.
305
Id., Sec. 30.
306
Landingin v. Republic, G.R. No. 164948, J une 27, 2006, 493 SCRA 415.
307
RULE ON ADOPTION, A.M. No. 02-6-02-SC, Sec. 32.

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6. Requirements for child adopted in the Philippines to be brought to the
United States.
308
The United States is now a full member of the Hague
Convention on Protection of Children and Co-operation in Respect of Inter-
Country Adoption.
309
The Convention governs all adoptions between the United
States and other 75 countries that are parties to the Convention, including The
Philippines. As a result, U.S immigration law provides for conditions when
bringing someone who is not a persons child by birth to the United States, to wit:
1) the child must have been legally adopted
310
before the age of 16 or be the
sibling of a child who was adopted by the same parents while under the age of
18; and 2) by virtue of an adoption decree by a court having jurisdiction over the
matter.

Additional requirements for issuance of immigrant visa to the child

There are two additional requirements that must be met to be eligible for a
U.S. immigrant visa as a child of an American citizen: 1] the adoptive parents
must have had legal custody of the child for at least two (2) years;
311
and 2] the
child must have physically resided with the adoptive parents for at least two (2)
years prior to immigration.
312

308
http://manila.usembassy.gov/wwwh3205.html; http://adoption.state.gov/.
309
Id., The Hague Convention seeks to prevent the abduction, sale, or trafficking of children. It
establishes international norms and procedures for processing inter-country adoption cases involving
other Convention members, and protects the rights of children, birth parents, and adoptive parents while
promoting transparency, accountability, and ethical practices among adoption service providers.
310
Id., The adoption must be legal and final. Simply providing financially for the child does not satisfy the
legal adoption requirement.
311
Id., Legal custody must be awarded by order of a court or recognized government entity. The start of
legal custody begins on the date the adoptive parents were granted legal custody of the child, or the date
the adoption was finalized, whichever comes first (in the Philippines, the grant of custody is retroactive to
the date the petition was filed). An informal custodial or guardianship document, such as a sworn affidavit
signed before a notary public, is insufficient for this purpose.
312
Id., During this time, the adoptive parents must exercise primary parental control. Evidence must be
presented to establish that the child and the adoptive parents had a bona fide parent-child relationship
during any periods they resided separately.

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VI. TRUSTEES

A. DEFINITION

A trust is the confidence reposed in one person who is termed trustee, for the
benefit of another who is called cestui que trust, respecting property which is held by
the trustee for the benefit of the cestui que trust.
313

A trustee is a person to whom property or funds have been committed in the
belief or trust that he will hold and apply the same for the benefit of those who are
entitled thereto according to an express intention by the parties themselves or by
deed, will settlement or arrangement of another.
314

B. APPOINTMENT

Upon a proper petition, a trustee may be appointed to carry into effect the
provisions of a will or written instrument.
315
A non-resident alien, however, may not
avail himself of the same right. The petition may be filed in the Regional Trial Court
in which the will was allowed, if allowed here; if not, by the Regional Trial Court in
the region in which the property or part thereof affected by the trust is situated. No
publication is required but the appointment is after notice to all persons interested is
made. Similar to executors and administrators, the trustee also files a bond in an
amount fixed by the court, except when the court orders otherwise.
316

1. Corporation sole is trustee of affairs, properties and temporalities of the
religious denomination and may amend the articles of incorporation.
Section 110 of the Corporation Code provides that a corporation sole administers
and manages, as trustee, the affairs, properties and temporalities of the religious
denomination, sect or church. As such, a corporation sole can exercise such
corporate powers that are necessary to carry out its duties of administering and
managing the affairs, properties and temporalities of the religious organization,
provided that such powers are not inconsistent with the law and the Constitution.
One of the powers authorized under Section 36 of the Corporation Code is the
power to amend the articles of incorporation.
317

313
Federico B. Moreno, PHILIPPINE LAW DICTIONARY, 3
rd
ed., p. 967.
314
Id.
315
316
Id., Sec. 5.
317
Separate concurring opinion of Mr. J ustice Antonio T. Carpio in the case of Iglesia Evangelica
Metodista en las Islas Filipinas (IEMELIF) v. Bishop Lazaro, et. al., G.R. No. 184088, J uly 6, 2010.

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C. FIDUCIARY

"Fiduciary" means "a person holding the character of a trustee, or a character
analogous to that of a trustee, in respect to the trust and confidence involved in it
and the scrupulous good faith and candor which it requires." A fiduciary primarily
acts for another's benefit, pursuant to his undertaking as such fiduciary, in matters
connected with said undertaking.
318

D. DISQUALIFICATIONS TO BE APPOINTED AS TRUSTEE

A j udge designated as attorney-in-fact is a trustee and cannot appear in
behalf of his uncle in the Department of Agrarian Reform Adjudication Board
(DARAB) hearing. In a relevant case, the Supreme Court declared that when
respondent judge acted as attorney-in-fact for his uncle, Florencio Barot, he likewise
undertook to perform all acts necessary to protect the latter's interests including
attending scheduled hearings in the DARAB case. The possibility of a scheduled
hearing for the DARAB case conflicting with his own calendared hearings in his sala
is not altogether far-fetched. But far worse is the possibility that respondent's official
position and stature might have affected the outcome of the DARAB case.
319

E. BOND

The trustee must file a bond in an amount fixed by the court payable to the
Government of the Philippines. Failure to do so shall be considered to have declined
or resigned the trust. The conditions of the bond for the trustee are as follows: 1)
make and return to the court a true inventory of all the real and personal estate that
at the time of the inventory shall have come to his possession or knowledge; 2)
manage and dispose of all such estate according to law and the will of the testator or
the provisions of the instrument or order under which he is appointed; 3) render a
true account of the property in his hands; and, 4) at the expiration of the trust, settle
his accounts in court and pay over and deliver all the estate remaining in his hands,
or due from him on such settlement, to the person or persons entitled thereto.

F. SALE OR ENCUMBRANCE OF TRUST ESTATE

The trustee shall file an inventory and is authorized to sell or encumber trust
property with approval of the court.
320
When the sale or encumbrance of any real or
personal estate held in trust is necessary or expedient, the court may, on petition
and after due notice and hearing, order such sale or encumbrance, and the

318
Supra note 128.
319
Id.
320
Id., Sec. 6.

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reinvestment and application of the proceeds thereof in such manner as will best
effect the objects of the trust. The petition, notice, hearing, order of sale or
encumbrance, and record of proceedings, shall conform to the provisions on sale or
encumbrance by guardians of the property of minors or wards.
321

G. COMPENSATION OF TRUSTEE

The compensation of the trustee is to be fixed by the court or is determined in
the instrument creating the trust.
322

H. REMOVAL OF TRUSTEE

The court may remove a trustee in the following instances: 1) the removal
appears essential in the interests of the petitioners; 2) the trustee is insane; or 3) the
trustee is otherwise incapable of discharging the trust or is evidently unsuitable to
act as one. A trustee, whether appointed by the court or under a written instrument,
may resign his trust if it appears to the court proper to allow such resignation.
323

321
Id., Sec. 9.
322
Id., Sec. 7.
323
Id., Sec. 8.

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VII. PROCEEDINGS FOR THE HOSPITALIZATION OF INSANE PERSONS

A. DEFINITION

Insanity is a manifestation in language or conduct, of disease or defect of brain,
or a more or less permanently diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion, inhibition, or by disordered
function of the sensory or of the intellective faculties, or by impaired or disordered
volition.
324

B. WAYS OF COMMITMENT

1. Voluntary
2. Involuntary
a. Civil
b. Criminal

C. VENUE

A petition for the hospitalization of an insane person is filed with the Regional
Trial Court of the place where the person alleged to be insane is found.
325

D. WHO CAN FILE THE PETITION

The petition maybe filed by the Director (now Secretary) of the Department of
Health when, in his opinion, the commitment to a hospital or other place for the
insane is for the public welfare, or the welfare of the alleged insane who in his
judgment is truly insane and such person or the one in charge of him is opposed to
the commitment. The Provincial or City Fiscal represents the Director of Health in
court. And, the court shall provide for the custody of the property or money of the
insane until a guardian is duly appointed.
326

E. DISCHARGE

The Director (Secretary) of Health shall file a petition for discharge if the person
committed is temporarily or permanently cured, or may be released without
danger.
327

324
People of the Philippines v. Dungo, G.R. No. 89420, J uly 31, 1991, 199 SCRA 860.
325
326
Id., Sec. 3.
327
Id., Sec. 4.

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F. COMMITMENT OF CHILDREN

The Supreme Court issued A.M. No. 02-1-19-SC, otherwise known as the Rule
on Commitment of Children, which took effect on April 15, 2002. The Rule applies
to the commitment of dependent, abandoned, neglected, and disabled children. Its
objective is to ensure that every effort is exerted to promote the child's welfare and
enhance opportunities for a useful and happy life. The Rule seeks to protect the
child from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to development.
328

328
RULE ON COMMITMENT OF CHILDREN, Sec. 1.

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VIII. HABEAS CORPUS

A. DEFINITION

The Latin term habeas corpus, which literally means you have the body, is a
high prerogative writ, of ancient common-law origin, the great object of which is the
liberalization of those who may be imprisoned without sufficient cause. Basically, it is
a writ directed to the person detaining another, commanding him to produce the
body of the prisoner at a designated time and place, with the day and cause of his
capture and detention, to do, submit to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf.
329

Habeas corpus is a high prerogative writ. It is traditionally considered as an
exceptional remedy to release a person whose liberty is illegally restrained, such as
when the accused's constitutional rights are disregarded. Such defect results in the
absence or loss of jurisdiction and, therefore, invalidates the trial and the
consequent conviction of the accused whose fundamental right was violated. That
void judgment of conviction may be challenged by collateral attack, which precisely
is the function of habeas corpus. This writ may issue even if another remedy which
is less effective may be availed of by the defendant. Thus, failure by the accused to
perfect his appeal before the Court of Appeals does not preclude a recourse to the
writ. The writ may be granted upon a judgment already final.
330

B. FUNCTION AND SCOPE OF THE WRIT

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus
extends to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto. The remedy of habeas corpus has one objective: to
inquire into the cause of detention of a person and, if found illegal, the court orders
the release of the detainee. If, however, the detention is proven lawful, then the
habeas corpus proceedings terminate.
331

The writ of habeas corpus generally extends to all cases of illegal confinement
or detention by which a person is either: 1) deprived of liberty, or 2) the rightful
custody of a person is withheld from the person entitled thereto.
332
The writ obtains
immediate relief for those who have been illegally confined or imprisoned without
sufficient cause. The writ, however, should not be issued when the custody over the

329
Paynaga v. Wolfe, 2 Phil. 146 (1903).
330
Chavez v. Court of Appeals, G.R. No. 29169, August 19, 1968, 24 SCRA 657.
331
In the Matter of Petition for Habeas Corpus Engr. Ashraf Kunting, G.R. No. 167193, April 19, 2006,
487 SCRA 602.
332

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person is by virtue of a judicial process or a valid judgment.
333
And, the writ of
habeas corpus is not available to one who is already out on bail.
334

Similarly, habeas corpus may not be used to obtain evidence on the
whereabouts of a person or as a means of finding out who has specifically abducted
or caused the disappearance of a certain person. Consequently, in one case, the
Supreme Court found that when the respondents, in making the return of the writ,
stated that they never had custody over the person who is the subject of the writ, the
petition must be dismissed, in the absence of definite evidence to the contrary. It is
because the return of the writ must be taken on its face value and must be taken as
true for the purpose of the habeas corpus proceedings.
335

C. MEANING OF DEPRIVATION OF FUNDAMENTAL OR CONSTITUTIONAL
RIGHTS

There is restraint of liberty where one is deprived of freedom of action, such as
the freedom of locomotion.
336
No court, however, is empowered as a judicial
authority to compel a husband to live with his wife. Covertures cannot be enforced
by compulsion of a writ of habeas corpus carried out by sheriffs or by any other
mesne process. That is a matter beyond judicial authority and is best left to the man
and womans free choice.
337

1. Lack of jurisdiction of the court to impose the sentence. A person may
not be detained on the basis of a void judicial order, such as when the court
issuing it had no jurisdiction over the crime charged; the place where the crime
was committed; or of the person of the accused;
338
or where the court has no
jurisdiction over the subject matter.
339

2. Excessive amount of bail or incorrect penalty. The writ of habeas corpus
also issues when excessive bail is required or the penalty imposed by the court is
not provided by law.
340
In all instances, however, the Rules of Court require that
a copy of the commitment or cause of detention must accompany the application
for the writ of habeas corpus. And in one case, it was held that it is erroneous to
grant the writ if the convicted prisoner merely served the minimum period of the
sentence.
341

333
Fletcher v. Director of the Bureau of Corrections, UDK-14371, J uly 17, 2009, 593 SCRA 265.
334
Zacarias v. Cruz, G.R. No. 25899, November 29, 1969, 30 SCRA 729.
335
Martinez v. General Leandro Mendoza, et.al., G.R. No.53795, August 17, 2006, 499 SCRA 243.
336
Villavicencio v. Lukban, 39 Phil. 778 (1919).
337
Ilusorio v. Bildner, et. al., G.R. No.139789, May 12, 2000, 332 SCRA 169.
338
Malinao v. Raveles, 108 Phil. 1159 (1960).
339
Makapagal v. Santamaria, 55 Phil. 418 (1930).
340
llobrera v. Director of Prisons, 87 Phil. 179 (1950).
341
Office of the Court Administrator v. Judge Norma Perello, A.M. No. RTJ -05-1952, December 24, 2008,
575 SCRA 394.

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D. WHO MAY ISSUE

The writ may be issued by the Supreme Court or by the Court of Appeals or
any member thereof, enforceable anywhere in the Philippines, returnable to the
same court or any member thereof, or to the Regional Trial Court or any judge
thereof for hearing and decision.
342

E. HABEAS CORPUS IN POST-CONVICTION DNA TESTING

The Supreme Court Rule on DNA Evidence provides that post-conviction DNA
testing is available to the prosecution or any person convicted by final and executory
judgment, without prior need of court order, in cases where in a biological sample
relevant to a case exists and the testing thereof would probably result in the reversal
or modification of a judgment of conviction. When the test results are favorable to
the person convicted, either the person convicted or the prosecution may file a
petition for a writ of habeas corpus in the court of origin. When the court determines
after due hearing that the petition is meritorious, it shall reverse or modify the
judgment of conviction and order the release of the convicted person unless the
latter is being detained for some other lawful cause.
343

F. RULE ON CUSTODY AND WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
344

1. Rightful custody of a minor may be filed. The Rule on Custody and Writ of
Habeas Corpus in Relation to Custody of Minors provides that a verified petition
for the rightful custody of a minor may be filed by any person claiming such right.
The party against whom it may be filed shall be designated as the respondent.
The petition for custody of minors shall be filed with the Family Court of the
province or city where the petitioner resides or where the minor may be found.
345

2. Best interest of minor child is principal consideration in granting
petition. Under the Rule,
346
after trial, the court shall render judgment awarding
the custody of the minor to the proper party considering the best interests of the
minor. The Supreme Court made a pronouncement in the case of Dacasin v.
Dacasin,
347
that according to the settled doctrine in child custody proceedings,
equity may be invoked to serve the childs best interest.

342
343
RULE ON DNA EVIDENCE, A.M. 06-11-5-SC, Sec. 10, October 2, 2007.
344
RULE OF CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS, Sec.
1, May 15, 2003.
345
Id., Secs. 2 and 3.
346
RULE OF CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS, Sec.
18.
347
G.R. No. 168765, February 5, 2010, 611 SCRA 657.

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3. Order of preference in custody of children when parents are unfit.
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.
348

4. Right to temporary visitation by parent deprived of custody. The court
may also 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.
349

348
Id.
349
Id.

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IX. CHANGE OF NAME

A. NAME DEFINED

A name is that word or combination of words by which a person is distinguished
from others and which he bears as a label or appellation for the convenience of the
world at large in addressing him or in speaking of or dealing with him.
350

Consequently, the touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought. So, a decision of a
lower court, even if affirmed by the Court of Appeals, did not persuade the Supreme
Court to depart from the applicability of the general rule on the use of surnames,
specifically the law which requires that legitimate children shall primarily use the
surname of their father.
351

1. To erase signs of former nationality is a valid ground for change of
name. A relevant case involves a petitioner who was born in Hong Kong and
who came to the Philippines as a British subject. Petitioner subsequently became
a naturalized Filipino. The evidence established sufficient justification for the
petition for change of name to erase signs of the former nationality of petitioner
which will unduly hamper his social and business life; to do away with his many
aliases which is discouraged, apart from the fact that it will avoid confusion and
will be for the convenience of the world at large in addressing him or in speaking
of or dealing with him.
352

2. Change of name on the ground that a Chinese national will soon be a
Filipino not allowed. In a relevant case, Haw Liong wanted to change his name
to Alfonso Lantin, as he would soon be a Filipino. The Supreme Court, however,
held that there was no compelling reason for change of name. According to the
Court, what may be considered as proper and reasonable causes that may
warrant the change are: 1) when the name is ridiculous, tainted with dishonor, or
is extremely difficult to write or pronounce; 2) when the request for change of
name is a consequence of a change of status, such as when a natural child is
acknowledged or legitimated; and 3) when the change is necessary to avoid
confusion.
353

B. CHANGE OF NAME BY JUDICIAL ORDER

The Civil Code provides that no entry in the civil register shall be changed or
corrected without a judicial order
354
and that no person can change his name or

350
Yu v. Republic, G.R. No. 20874, May 25, 1966, 17 SCRA 253.
351
Republic v. Court of Appeals, et. al., G.R. 88202, December 14, 1988, 168 SCRA 77.
352
Republic v. Intermediate Appellate Court, G.R. No. L-70513, October 13, 1986, 145 SCRA 25.
353
Haw Liong v. Republic, G.R. No. 21194, April 24, 1966, 16 SCRA 677.
354
CIVIL CODE, Art. 412.

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surname without judicial authority.
355
And the Rules of Court provide that petition for
change of name must be heard in an adversarial proceeding. Unlike petitions for the
cancellation or correction of clerical errors in entries in the civil registry under Rule
108 of the Rules of Court as to innocuous or clerical errors only, a petition for
change of name under Rule 103 cannot be decided through a summary proceeding.
Here, the appropriate remedy is covered by Rule 103, a separate and distinct
proceeding from Rule 108 on mere cancellation and correction of entries in the civil
registry.
356

The petition shall be filed in the Regional Trial Court of the place of residence of
the person desiring the change of name.
357
The petition shall allege the following: 1)
that he is a bona fide resident of the region (province) for at least three [3] years; 2)
the cause for the change of name; and 3) the name asked for.
358
The hearing is held
after notice and publication.
359
The inclusion in the title of the petition for change of
name and in the published order of the name sought to be authorized is
jurisdictional.
360
However, petitions for adoption and change of name cannot be
joined. They are not same in nature and character nor do they present common
questions of law and fact.
361

C. CHANGE OF NAME THROUGH ADMINISTRATIVE PROCEEDINGS

Articles 376 and 412 of the Civil Code on change of names were amended by
Republic Act No. 9048,
362
otherwise known as An Act Authorizing the City Or
Municipal Civil Registrar Or The Consul General to Correct a Clerical or
Typographical Error in an Entry and/or Change of Name or Nickname in the Civil
Register Without Need of a J udicial Order, but only in so far as clerical or
typographical errors are involved. The correction or change of such matters can now
be made through administrative proceedings and without the need for a judicial
order. In effect, R.A. 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.
363

Meaning of clerical or typographical error

Clerical or typographical error means a mistake committed in the performance
of clerical work in writing, copying, transcribing or typing an entry in the civil register

355
Id., Art. 376.
356
G.R. No. 157043, Republic v. Capote, February 2, 2007; 514 SCRA 76.
357
358
Id., Sec. 2.
359
Id., Secs. 3 and 4.
360
Go v. Republic, G.R. No. 31760, May 25 1977, 77 SCRA 65.
361
Republic v. Hernandez, G.R. No. 117209, February 9, 1996, 253 SCRA 509.
362
Effective date is April 22, 2001.
363
Silverio v. Republic, G.R. No. 174689, October 22, 2007, 537 SCRA 373.

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that is harmless and innocuous, such as misspelled name or misspelled place of
birth or the like, which is visible to the eyes or obvious to the understanding, and can
be corrected or changed only by reference to other existing record or records.
364

D. RESIDENT ALIENS

Resident aliens may also petition for a change of name. A nonresident alien
may not avail himself of the same right; such a proceeding would not be of much
benefit to him.
365
But the petition will not be entertained if the petitioners citizenship
is either refuted or doubtful.
366

E. CHANGE OF NAME BY A MINOR CHILD

A minor may sign and verify a petition for a change of name subject to the
required assistance of a guardian ad litem, although the absence of the latter does
not void the proceeding as the petition can be amended.
367

1. Change of name may be made to improve personality and social
standing. A natural child, through her mother, petitioned to use the surname of
the stepfather. The Solicitor General stated that this would hide the childs
illegitimacy. However, the Supreme Court held that there is nothing wrong with it,
and that a change of name may be made to improve ones personality or social
standing and to promote the best interest of the child and as long as injury or
prejudice is not a caused to anyone.
368

2. Child was not allowed to adopt surname of mothers second husband.
The legitimate minor children were not allowed to adopt the surname of the
mothers second husband, because there would be a false impression of their
family relations, as it could result in confusion in their paternity.
369
The Supreme
Court ruled in one case that there is no proper and reasonable cause shown in
the petition for a change of surname of a child as confusion is likely to occur,
adoption may be resorted to.
370

3. Legitimate child cannot change surname of father who is a fugitive from
justice. The legitimate minor children may not also be allowed to change the
surname of a father who is a fugitive from justice to that of his mother. The
Supreme Court held that there will be confusion as to parentage in that it might

364
Rep. Act No. 9048, Sec. 2(c).
365
Ong Huan Tin v. Republic, G.R. No. 20997, April 27, 1967, 19 SCRA 966.
366
Basas v. Republic, G.R. No. 23595, February 20, 1968, 22 SCRA 652, 22 SCRA 652.
367
Tse v. Republic, G.R. No. 20708, August 31, 1967, 20 SCRA 1261.
368
Calderon v. Republic, G.R. No. 18127, April 5, 1967, 19 SCRA 721.
369
Padilla v. Republic, G.R. No. 28274, April 30, 1982; 113 SCRA 789.
370
Republic v. Court of Appeals, G.R. No. 88202, December 14, 1998, 300 SCRA 138.

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create the impression that the children are illegitimate since they would carry the
maternal surname only, which is inconsistent with the legitimate status in their
birth records.
371

4. Republic Act No. 9255. Rep. Act No. 9255, otherwise known as An Act
Allowing Illegitimate Children to Use the Surname of their Father, Amending for
the Purpose Article 176 of Executive Order No. 209, otherwise known as the
Family Code of the Philippines, which took effect on February 24, 2004, covers
unregistered births and registered births wherein illegitimate children use the
surname of their mother. The law applies to all illegitimate children born before or
after the effective date of said law.

5. Recognition of the child in a document, public or private, is required.
A document, public or private, wherein the child is recognized as such by the
father is required. Such document may be an affidavit found at the back of the
certificate of Live Birth (COLB), a separate public document executed by the
father, or a private handwritten instrument made by the father expressly
recognizing the child as his. In case of the latter, the instrument must be in the
handwriting of the father and signed by him.
372

6. Affidavit to Use the Surname of the Father (AUSF). The Affidavit to Use
the Surname of the Father (AUSF) is availed of in cases where recognition is
made through a private handwritten instrument, or when the birth has already
been registered under the mother's surname with or without the father's
recognition. For private handwritten instruments, other documents are to be
submitted to support the claim made. Accordingly, any two (2) of the following is
needed: 1) employment records; 2) SSS/ GSIS records; 3) insurance; 4)
certification of membership in any organization; 5) Statement of Assets and
Liabilities; and 6) Income Tax Return (ITR). Consent of the child is necessary, if
the eighteen (18) years old or more at the time of the recognition. The father,
mother, child, if of legal age, or the guardian may file the public document or
AUSF in order for the child to use the surname of the father.
373

7. Procedure when a public document or AUSF is filed. After a public
document or the AUSF is filed, the following guidelines must be followed: 1] if the
child was born in the Philippines and the public documents or the AUSF was
executed in the Philippines, the public document or the AUSF shall be registered
with the Local Civil Registrar (LCR) of the place where the child was born; 2) if
the child was born in the Philippines and the public document or the AUSF was
executed outside of the Philippines, the public document or the AUSF shall be
registered at the LCR of Manila; and, 3] if the child was born outside of the
Philippines and the public document or the AUSF was executed in or outside of

371
Naldoza v. Republic, G.R. No. 55538, March 15, 1982, 112 SCRA 568.
372
Implementing Rules and Regulations of Rep. Act No. 9255, effective May 14, 2004.
373
Id.

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the Philippines, the public document or the AUSF shall be registered at the LCR
of Manila.
374

8. Duty of Local Civil Registrar (LCR). Once the public document or the
AUSF is registered, the LCR of the place of birth annotates the record of birth
and the appropriate entry in the registry book. As to births outside of the
Philippines, the annotation of the record of birth shall be accomplished by the
Office of the Civil Registrar General (OCRG) and a recognition or
acknowledgement made in a public document other than the record of birth or
the AUSF is registered within twenty (20) days from the date of execution. Such
procedure applies to an illegitimate child whose paternity has been admitted by
the father.
375

9. Procedure for registered births. When the birth of a child is registered, the
original surname in the Certificate of Live Birth shall not be changed or corrected
after availing of Rep. Act No. 9255. The appropriate procedure is to cause the
necessary annotations in the Certificate of Live Birth showing the surname that
the child shall use. In regard to births that have not yet been registered, a child
can automatically use the surname of the father subject to the condition that the
father executed an affidavit of admission of paternity at the time of registration.
376

F. CHANGE OF NAME BY A MARRIED WOMAN

There is no law which provides that the wife shall change her name to that of
the husband after marriage. The wife's use of her husband's surname is optional
and is permissive rather than obligatory. This in is consonance with the principle
that surnames indicate descent. A married woman has an option, but not a duty, to
use the surname of the husband in any of the ways provided by Article 370 of the
Civil Code.
377

1. Resumption by woman of name after Muslim divorce is not change of
name. The resumption by the wife of her maiden name after a Muslim divorce is
not change of name under Rule 103. The proceeding filed to resume the use of
the maiden name is a superfluity but it is directory.
378

2. Woman who opted to use husbands surname cannot change it in the
renewal of her passport unless there is severance of marriage. Once a
married woman opted to adopt her husbands surname in her passport, she may
not revert to the use of her maiden name, except in the cases enumerated in
Section 5(d) of Republic Act No. 8239 or the Philippine Passport Act of 1996.

374
Id.
375
Id.
376
Id.
377
Tolentino, CIVIL CODE OF THE PHILIPPINES, COMMENTARIES AND J URISPRUDENCE, 1990, Vol. I, p. 675.
378
Yasin v. Honorable Judge, Sharia District Court, G.R. No. 94986, February 23, 1995, 241 SCRA 606.

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The instances are as follows: 1) death of husband; 2) divorce; 3) annulment; and
(4) nullity of marriage. Since in this case
379
the petitioners marriage to her
husband subsists, she may not resume her maiden name in the replacement
passport.

G. SPECIAL LAW ON PASSPORT PREVAILS OVER GENERAL LAW ON USE
OF SURNAMES.

The Supreme Court held that even assuming that R.A. 8239 conflicts with the
Civil Code, the provisions of R.A. 8239, which is a special law specifically dealing
with passport issuance, must prevail over the provisions of Title XIII of the Civil
Code which is the general law on the use of surnames. It is a basic tenet in
statutory construction that a special law prevails over a general law.
380

H. CHANGE OF NAME OF PERSON WITH GENDER RE-ASSIGNMENT NOT
ALLOWED

The Supreme Court maintains that Philippine laws define who may file a
petition for change of first name and for correction or change of entries in the civil
registry, where they may be filed, and what grounds may be invoked. However,
gender re-assignment is not a ground even under R.A. No. 9048, the purpose of the
latter being to avoid confusion.
381

I. CHANGE OF NAME DUE TO CONGENITAL ADRENAL HYPERPLACIA
(CAH)

In a relevant case, the Supreme Court held: in the absence of evidence to
show that classifying respondent as a male will harm other members of society who
are equally entitled to protection under the law, the Court affirms as valid and
justified the respondent's position and his personal judgment of being a male. xxx
In so ruling we do no more than give respect to (1) the diversity of nature; and (2)
how an individual deals with what nature has handed out. In other words, we respect
respondent's congenital condition and his mature decision to be a male. Life is
already difficult for the ordinary person. We cannot but respect how respondent
deals with his unordinary state and thus help make his life easier, considering the
unique circumstances in this case.
382

379
Remo v. Hon. Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010.
380
Id.
381
Silverio v. Republic, G.R. No. 174689, October 22, 2007, 357 SCRA 373.
382
Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, 565 SCRA 72.

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X. VOLUNTARY DISSOLUTION OF CORPORATION

A. RULE 104 OF THE RULES OF COURT IS NO LONGER APPLICABLE TO
VOLUNTARY DISSOLUTION OF CORPORATION

Rule 104 of the Rules of Court on voluntary dissolution of corporations is no
longer applicable. Proceedings for voluntary dissolution of corporations are
governed by Pres. Decree No. 902-A and the Corporation Code, particularly
Sections 117 to 122 thereof.

B. REPUBLIC ACT NO. 8799

While proceedings for voluntary dissolution of corporation were formerly before
the Securities and Exchange Commission, but under Rep. Act No. 8799 otherwise
known as The Securities Regulation Code, approved on J uly 19, 2000, such cases
have been transferred back to the regular courts. The pertinent provision of Rep. Act
No. 8799 is Sec. 5.2, which provides as follows:

The Commissioners jurisdiction over all cases enumerated
under Section 5 of Presidential Decree No. 902-A is hereby
transferred of the Courts general jurisdiction or the appropriate
Regional Trial Court: Provided That the Supreme Court in the
exercise of its authority may designate the Regional Trial Court
shall jurisdiction over these cases. The Commission shall retain
jurisdiction over pending cases involving intra-corporate
disputes submitted for final resolution which should be resolved
within (1) year from the enactment of this Code. The
Commission shall retain jurisdiction over pending suspension of
payment/rehabilitation cases filed as of 30 J une 2000 until
finally disposed.

C. CASES COVERED

Section 5 of Pres. Decree No. 902-A, mentioned in Sec. 5.2 of Rep. Act No.
8799, enumerates the following cases, to wit:

1) Devices or schemes employed by or any acts, of the board of
directors, business associates, its officers or partners,
amounting to fraud and misrepresentative which may be
detrimental to the interest of the public and/or of the
stockholder, partners, members of associations or organizations
registered with the commission.

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2) Controversies-arising out of intra-corporate or partnership
relations, between and among stockholder, members, or
associates; between any or all of them and the corporation,
partnership or association of which they are stockholders,
members or associates, respectively; and between such
corporation, partnership or association and the state insofar as it
concerns their individual franchise or right to exist as such
entity.

3) Controversies in the election or appointments of directors,
trustees, officers or managers of such corporations,
partnerships or associations; and

4) Petitions of corporations, partnerships or associations to be
declared in the state of suspension of payments in cases where
the corporation, partnership, or association possesses sufficient
property to cover all its debts but foresees the impossibility of
meeting them when they respectively fall due or in cases where
the corporation, partnership or association has no sufficient
assets to cover its liabilities, but is under Management
Committee created pursuant to this Decree.
383

D. JURISPRUDENCE

1. Securities and Exchange Commission (SEC) hearing officers have no
more power to hear i ntra-corporate cases and cannot issue subpoena
anymore. The Supreme Court has ruled that in light of Pres. Decree No. 902-
As repeal, the need to rule on the question of the extent of the contempt powers
of an SEC hearing officer relative to his authority to issue subpoenas and orders
to parties involved in intra-corporate cases, or potential witnesses therein has
been rendered academic. The enactment of Rep. Act No. 8799 mooted this
issue as SEC hearing officers, now bereft of any power to resolve disputes, are
likewise stripped of their power to issue subpoenas and contempt orders
incidental to the exercise of their quasi-judicial powers.
384

E. APPEAL

The decisions of the courts in the foregoing cases are appealable to the Court
of Appeals, as provided by Section 70 of Rep. Act No. 8799 and of Rule 43, 1997
Rules of Civil Procedure.

383
As amended by Pres. Decree No. 1758, Sec. 3.
384
Vesagas v. Court of Appeals, G.R. No. 142924, December 5, 2001, 371 SCRA 509.

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F. CORPORATE REHABILITATION

1. Rules of Procedure on Corporate Rehabilitation. The Interim Rules of
Procedure on Corporate Rehabilitation,
385
which took effect on December 15,
2000, was amended by A.M. 00-8-10-SC
386
or the Rule of Procedure on
Corporate Rehabilitation. The Rule applies to petitions for rehabilitation of
corporations, partnerships and associations pursuant to Pres. Decree No. 902-A,
as amended. Cases on corporate rehabilitation were transferred from the
Securities and Exchange Commission (SEC) to the Regional Trial Courts
pursuant to Rep. Act No. 8799, otherwise known as The Securities Regulation
Code, and shall likewise be governed by these Rules.

2. The governi ng law concerning rehabilitation and suspension of actions
for claims against corporations is P.D. No. 902-A, as amended. In a case,
the Supreme Court held that an essential function of corporate rehabilitation is
the mechanism of suspension of all actions and claims against the distressed
corporation, which operates upon the due appointment of a management
committee or rehabilitation receiver. The governing law concerning rehabilitation
and suspension of actions for claims against corporations is Pres. Decree No.
902-A, as amended. According to the Court, Section 6 (c) of the law mandates
that, upon appointment of a management committee, rehabilitation receiver,
board, or body, all actions for claims against corporations, partnerships or
associations under management or receivership pending before any court,
tribunal, board, or body shall be suspended.
387

385
A.M. No. 008-10-SC, November 21, 2000.
386
Effective date J anuary 16, 2009.
387
Castillo v. Uniwide Warehouse Club, Inc., G.R. No. 169725, April 30, 2010.

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XI. JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL
CHILDREN

A. PROVISIONS UNDER THE FAMILY CODE

There is no longer any provision in the Family Code for acknowledged natural
children. Children are either legitimate or illegitimate. What is to be proved is filiation,
and voluntary recognition could be the means of providing filiation if the putative
father or mother would later refuse to recognize the child. The relevant provisions of
law are Articles 172,173 and 175 of the Family Code.

B. RECOGNITION OF ILLEGITIMATE CHILDREN

In the case of illegitimate children, the action for recognition survives the death
of either or both of the parties except when the action is based on the second
paragraph of Article 172, referring to an action based on the open and continuous
possession of the status of a legitimate child and any other means allowed by the
Rules of Court in which case, the action may be brought only during the lifetime of
the alleged parent.

C. APPLICABLE PROCEDURE

The action under Rule 105 for judicial approval of voluntary recognition of minor
natural children may be converted to an action for paternity and filiation. It is settled,
however, that the status and filiation of a child cannot be compromised nor can be
left to the will or agreement of the parties.
388

D. ESTABLISHING PATERNITY AND FILIATION WITH THE USE OF DNA
TESTING

In DNA paternity testing, the result that excludes the putative parent from
paternity is conclusive proof of non-paternity. If the value of the Probability of
Paternity (W) is less than 99.9%, the results of the DNA testing shall be considered
as corroborative evidence. If the value of the Probability of Paternity is 99.9% or
higher, there shall be a disputable presumption of paternity.
389

388
Uy v. Chua, G.R. No. 183965, September 18, 2009, 600 SCRA 806.
389
RULE ON DNA EVIDENCE, Sec. 9 (c).

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E. VENUE

The petition shall be filed in the family court, or in places where there is no
family court, in the Regional Trial Court where the child resides.

F. CONTENTS OF PETITION AND HEARING

Aside from the jurisdictional facts, the petition shall contain the following: 1) the
names and residences of the parents or one of them who acknowledge their
compulsory heirs and the person or persons with whom the child lives; and 2) the
document containing the recognition, a copy of which should be attached to the
petition, which document is either a statement before a court of record or an
authentic writing. The court shall grant the petition when it is satisfied that the
recognition was willingly and voluntarily made and is so for the best interest of the
child.

G. GUIDELINES IN AFFIXING SIGNATURE OF ACKNOWLEDGING PARENT

The Court sees it fit to adopt the following rules respecting the requirement of
affixing the signature of the acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a legitimate or illegitimate child is
made: 1] where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, there should be strict compliance with the requirement
that the same must be signed by the acknowledging parent; and 2] where the private
handwritten instrument is accompanied by other relevant and competent evidence, it
suffices that the claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.
390

H. LEGITIMATION OF CHILDREN BORN OUT OF WEDLOCK TO MINOR
PARENTS

Children born out of wedlock to parents who were not allowed by law to marry
for being minors are now qualified for automatic legitimation upon marriage of the
parents, under Rep. Act No. No. 9858 that repealed Article 177 of the Family Code
of the Philippines. Article 177 provides that only children born out of wedlock to
parents who were not disqualified from getting married at the time of conception can
be legitimized. Excluded from Article 177 are children whose parents were
disqualified from getting married because they lacked the age requirement of 18
years old. Pursuant to Section 1 of the law, legitimation would automatically take
place upon marriage of the parents.
391

390
De la Cruz v. Gracia, G.R. No. 177728, J uly 31, 2009, 594 SCRA 648.
391
Republic Act No. 9858, An Act Providing for the Legitimation of Children Born to Parents Below
Marrying Age, Amending for the Purpose the Family Code of the Philippines, As Amended, Approved on
December 20, 2009.

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XII. CONSTITUTION OF FAMILY HOME

A. NATURE OF FAMILY HOME

The family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime. It is the dwelling house where
the husband and wife, or an unmarried head of a family reside, including the land on
which it is situated.
392

B. EXEMPTION FROM EXECUTION

While it is true that the family home is constituted on a house and lot from the
time it is occupied as a family residence and is exempt from execution or forced sale
under Article 153 of the Family Code, such claim for exemption should be set up and
proved, for instance, to the Sheriff before the sale of the property at public auction.
Failure to do so would prevent the party from later claiming the exemption based on
the principle of estoppel.
393
Similarly, if a party fails to substantiate claim that the
levied property is a family home, she cannot avoid liability under the contract of
lease which she entered into.
394

C. PETITION TO CONSTITUTE A FAMILY HOME NO LONGER REQUIRED
UNDER THE FAMILY CODE

Rule 106 on the Constitution of the Family Home is already extraneous in view
of Article 153 of the Family Code stating that the family home is deemed constituted
on a house and lot from the time it is occupied as a family residence, judicially or
extra-judicially. And, all family homes constructed after the effective date of the
Family Code (August 3, 1988) are constituted as such by operation of law. Hence,
all existing family residences as of August 3, 1988 are considered family homes and
are prospectively entitled to the benefits accorded to a family home under the Family
Code.
395

Family home shall continue despite death of spouses or unmarried head of
family.
396
The purpose of Article 159 is to avert the disintegration of the family unit
following the death of its head. To this end, it preserves the family home as the
physical symbol of family love, security and unity by imposing the following
restrictions on its partition: first, that the heirs cannot extra-judicially partition it for a
period of 10 years from the death of one or both spouses or of the unmarried head
of the family, or for a longer period, if there is still a minor beneficiary residing

392
Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172.
393
Versola v. Court of Appeals, G.R. No. 164740, 31 J uly 2006, 497 SCRA 385.
394
Soneja v. Court of Appeals, G.R. No. 161533, J une 5, 2009, 588 SCRA 450.
395
Kelley v. Planters Products, G.R. No. 172263, J uly 9, 2008, 577 SCRA 499.
396
Patricio v. Dario, et.al., G.R. No. 170829, November 20, 2006, 507 SCRA 438.

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therein; and second, that the heirs cannot judicially partition it during the aforesaid
periods unless the court finds compelling reasons therefor. More importantly, said
article imposes the proscription against the immediate partition of the family home
regardless of its ownership. This signifies that even if the family home has passed by
succession to the co-ownership of the heirs, or has been willed to any one of them,
this fact alone cannot transform the family home into an ordinary property, much less
dispel the protection cast upon it by the law. The rights of the individual co-owner or
owner of the family home cannot subjugate the rights granted under Article 159 to
the beneficiaries of the family home.
397

397
Arriola v. Arriola, G.R. No. 177703, J anuary 28, 2008, 542 SCRA 666.

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XIII. DECLARATION OF ABSENCE AND DEATH

A. DEFINITION

Absence is a special status of a person who has left his domicile, and thereafter
his whereabouts and fate are unknown, it being uncertain whether he is already
dead or still alive.
398

B. PROVISIONAL REPRESENTATIVE

When a person disappears without leaving an agent behind, an interested
party, relative or friend, may file a petition before the Regional Trial Court of the last
place of residence of the person who disappeared to appoint provisionally a
representative for him.
399

C. TRUSTEE OR ADMINISTRATOR

After two (2) years without any news or after five (5) years if an agent was left
to administer the absentees his property, a petition for declaration of absence and
appointment of a trustee or administrator may be filed.
400

D. NOTICE AND PUBLICATION ARE REQUIRED.

The court shall fix a date and place for the hearing where all concerned may
appear to contest the petition. Copies of the notice of hearing shall be served on the
known heirs, creditors and other interested persons and published once a week for
three (3) consecutive weeks in a newspaper of general circulation.
401

E. PREFERENCES

The court may appoint as trustees or administrator or provincial representative
the following: 1) the spouse of the missing person if they are not separated or if the
spouse is not a minor or otherwise incompetent; or, in default of the spouse; 2) any
competent person.
402

398
Philippine Law Dictionary, p. 6.
399
400
Id., Sec. 2.
401
Id., Sec. 4.
402

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F. TERMINATION OF APPOINTMENT

The appointment shall be terminated in the following instances:
1) if the absentee appears personally or by agent;
2) when the death is proved and the heirs appear; and,
3) when a third person acquires the property of the absentee.

G. WHEN PETITION IS NOT NECESSARY

In a relevant case, a wife filed a petition to declare her missing husband absent
and presumed dead. However, the husband left no property. The Supreme Court
held that in this particular situation, there is no need for the petition.
403
Moreover, a
judicial declaration of absence of a spouse is not necessary as long as the
prescribed period of absence is met. Hence, the Supreme Court held that since it
remained undisputed that a persons first husband had been absent or had
disappeared for more than eleven (11) years before she entered into a second
marriage in 1958, the second marriage, having been contracted during the regime of
the Civil Code is deemed valid, notwithstanding the absence of a judicial declaration
of presumptive death of the absentee spouse.
404
However, a declaration of
presumption of death is not final.
405

403
Reyes v. Alejandro, No. L-32026, J anuary 16, 1986, 141 SCRA 65.
404
Armas v. Calisterio, G.R. No. 136467, April 6, 2000, 330 SCRA 201.
405
Jones v. Hortiguela, 64 Phil. 179 (1937).

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XIV. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

A. WHO MAY FILE A PETITION

The petitioner in cancellation or correction of entries in the civil registry may be
any interested person concerning the civil status of persons.
406
The Supreme Court,
in one particular case, held that the change of name from J ennifer to J eff implying
a change of a feminine name to a masculine name may be filed by a petitioner
woman that was eventually allowed, as the change in name merely recognizes
preferred gender due to congenital adrenal hyperplasia (CAH).
407

B. VENUE

The petition may be filed with the Regional Trial Court where the corresponding
civil registry is located.
408

C. PARTIES

The persons who are parties to a proceeding concerning the correction of an
entry in the Civil Registrar are the following: 1) the Civil Registrar and 2) all persons
who have or claim any interest which would be affected thereby.
409

D. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION

The following entries in the civil register, upon good and valid grounds, may be
cancelled or corrected:

1) births;
2) marriages;
3) deaths;
4) legal separations;
5) judgments of annulments of marriage;
6) judgments declaring marriages void from the beginning;
7) legitimations;
8) adoptions;
9) acknowledgments of natural children;
10) naturalization;
11) election, loss or recovery of citizenship;
12) civil interdiction;

406
407
Republic v. Cagandahan, G.R. 166672, September 12, 2008, 565 SCRA 72.
408
409
Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 473.

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13) judicial determination of filiation;
14) voluntary emancipation of a minor; and,
15) changes of name.
410

E. NOTICE AND PUBLICATION

Upon the filing of the petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court, before the hearing, shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
411

F. NATURE OF PROCEEDING

The remedy of correction of the civil status of a person in Rule 108 is not a
summary but an adversary proceeding.
412
Thus, all interested persons who may be
affected by the petition shall be made parties.
413
And, when petitions for change of
name are filed before the regular courts, the procedural requirements provided by
the Revised Rules of Court as to the form and substance of the petition and as to the
necessity of publication, shall be complied with.

G. PURPOSE OF AN ADVERSARIAL PROCEEDING

According to the Supreme Court, the reason why non-clerical mistakes cannot
be corrected under the summary proceeding set by Article 412 of the new Civil Code
"lies in the fact that the books making up the Civil Register and all documents
relating thereto shall be considered public documents and shall be prima facie
evidence of the facts therein contained, (Article 410, new Civil Code), and if the
entries in the civil register could be corrected or changed through a mere summary
proceeding, and not through an appropriate action, wherein all parties who may be
affected by the entries are notified or represented we would set wide open the door
to fraud or other mischief the consequences of which might be detrimental and far
reaching.
414

410
411
Id., Sec. 4.
412
Republic v. Valencia, G.R. No. 32181, March 5, 1986, 141 SCRA 462.
413
414
In the Matter of Correction of the Surname of Cesar Young, et. al. v. Civil Registrar of Manila, G.R. No.
36478, April 29, 1983, 121 SCRA 873.

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XV. APPEALS IN SPECIAL PROCEEDINGS

A. APPEAL

An order or judgment which is appealable in special proceedings is an order or
judgment which:

1. Allows or disallows a will:
2. Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
3. Allows or disallows, in whole or in part any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to a
claim against it;
4. Settles the account of an executor, administrator, trustee, or guardian;
5. Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of special administrator:
and
6. Is the final order or judgment rendered in the case, and affects the substantial
rights of the person appealing, unless it is an order granting or denying a
motion for new trial of for reconsideration.

B. PERIOD OF APPEAL
In a proceeding for settlement of estate, the period of appeal from any decision
or final order rendered therein is thirty (30) days, a notice of appeal and a record on
appeal being required. The appeal period may only be interrupted by the filing of a
motion for new trial or reconsideration. And, once the appeal period expires without
an appeal being perfected, the decision or order becomes final.
415

C. WHO MAY APPEAL
Any person with legal interest may appeal in special proceedings from any
order or judgment rendered by the settlement court.
416
A surety of the executor or
administrator who is a party to an accounting maybe allowed to appeal an order
approving or denying accounting,
417
so with a creditor who is allowed by the court to
bring an action for recovery of property.
418

415
In the Matter of the Heirship of the Late Hermogenes Rodrigues, et. al., v. Robles, G.R. No. 182645,
December 4, 2009.
416
417
Espinosa v. Barrios, 70 Phil. 311 (1940).
418
Fluemer v. Hix, 54 Phil. 610 (1930).

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D. ORDERS THAT ARE APPEALABLE

The following orders are appealable: 1) an order appointing an administrator;
419

2) ruling of a court determining the lawful heirs who may participate in the settlement
proceedings
420
and 3) orders on claims against the estate, inventories and sale of
property of the decedent.
421

E. ORDERS THAT MAY NOT BE APPEALED

The following orders, however, may not be appealed: order appointing a special
administrator;
422
order for administrator to recover property of the estate;
423
and an
order to include or exclude property in the estate;
424

F. PERIOD AND REQUIREMENTS FOR APPEAL
In special proceedings, such as for settlement of estate, the period of appeal
from any decision or final order rendered therein is thirty (30) days, a notice of
appeal and a record on appeal being required.
425

G. PERFECTION OF APPEAL

1. Rules 41,
426
42,
427
and Rule 45,
428
all of the 1997 Rules of Civil Procedure
apply in conformity with Rule 72, Section 2, which refers to the applicability of the
rules of civil actions to special proceedings and which provides that in the
absence of special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings.

2. Appeals in special proceedings are termed multiple appeals under the
Interim Rules of Court and Under 1997 Rules of Civil Procedure. For multiple
appeals, a record on appeal is required while the period of appeal is thirty (30)
days, instead fifteen (15) days.

419
Sy Hong Eng v. Sy Lioc Suy, 8 Phil. 594 (1907).
420
Testate Estate of Biascan v. Biascan, G.R. No. 138731, December 11, 2000, 347 SCRA 621.
421
Tinagan v. Rovira, G.R. No. 23555, J anuary 29, 1968, 22 SCRA 209.
422
Samson v. Barrios, 63 Phil. 198 (1936).
423
Frankle v. Webber, 57 Phil. 768 (1932).
424
Gregorie v. Baker, 51 Phil. 76 (1926).
425
Pascual v. Robles, G.R. No. 182645, December 4, 2009, 607 SCRA 770.
426
Appeal from the Regional Trial Courts.
427
Petition for Review from the Regional Trial Courts to the Court of Appeals.
428
Appeal by certiorari to the Supreme Court.

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XVI. SPECIAL PROCEEDINGS UNDER THE DIFFERENT CIRCULARS OF THE
SUPREME COURT

A. RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID
MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

1. Coverage. The Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages is A. M. NO. 02-11-10-SC, effective March 15,
2003, and governs petitions for declaration of absolute nullity of void marriages
and annulment of voidable marriages under Articles 35, 36, 37 and 38 of the
Family Code of the Philippines. The Rules of Court shall apply suppletorily.
429

2. Void marriages under Article 35 of the Family Code. Under Article 35 of
the Family Code, the following marriages are void from the beginning:

a) those contracted by any party below eighteen (18) years of age even with
the consent of parents or guardians;
b) those solemnized by any person not legally authorized to perform
marriages, unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
authority to do so;
c) those solemnized without license, except those covered in the preceding
Chapter;
c) those bigamous or polygamous marriages not failing under Article 41 on
absentee spouse;
d) those contracted through mistake of one contracting party as to the identity
of the other; and
e) those subsequent marriages that is void under Article 53 for failure to
register the judgment of nullity, partition and distribution of properties, and
delivery of the childrens legitimes.

3. Jurisprudence

a) Judicial declaration of void marriage is necessary to contract another
marriage. In a case in point, the Supreme Court ruled that if a party
contracts a void marriage that has not been declared as such by the court
under Article 35 of the Family Code and one of the parties re-marries, said
person is guilty of bigamy.
430

429
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,
Sec. 1.
430
Manuel v. People, G.R. No.165842, 29 November 2005, 476 SCRA 461.

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b) Mere private act of signing a marriage contract bears no semblance
to a valid marriage and needs no judicial declaration of nullity. In a
case in point, the Supreme Court found that since no marriage ceremony
at all was performed by a duly authorized solemnizing officer, as the
parties merely signed a marriage contract on their own, the mere private
act of signing a marriage contract bears no semblance to a valid marriage
and, thus, needs no judicial declaration of nullity. The Court further
declared that such act alone cannot constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy, unless a
judicial declaration of nullity is first secured before contracting a
subsequent marriage.
431

c) A married woman and a single man belonging to the Jehovahs
Witness who make declaration of pledging faithfulness are not
administratively liable. The Supreme Court ruled that a married woman
and a single man belonging to the J ehovahs Witness who make
declaration of pledging faithfulness are not administratively liable as the
newly-entered conjugal arrangement is not penalized by law, it being an
exercise of the freedom of religion.
432

d) Void marriage still produces legal effects, among which, is bigamy.
Conversely, bigamy is committed even if the second marriage is declared
null and void by reason of the psychological incapacity of the second
spouse. Although the marriage is void ab initio, it still produces legal
effects, such as bigamy.
433

4. Void marriage under Article 36 of the Family Code. Psychological
incapacity, under Article 36 of the Family Code, is not defined or that no specific
examples of psychological incapacity are laid down so as not to limit
interpretation by the courts. Psychological incapacity, however, is confined to the
most serious personality disorders such as dependent or anti-social personality
with utter insensitivity and inability to give meaning to the marriage.
434

a) Cases of non-existence of psychological incapacity. The Supreme
Court held that there is no psychological incapacity in the following
instances: wifes refusal to come home from the United States and touch
base with the husband;
435
alcoholism, sexual infidelity and abandonment
of the family by the spouse;
436
failure to provide support to the family,

431
Morigo v. People, G.R. No. 145226, February 6, 2004, 422 SCRA 376.
432
Escritor v. Estrada, A.M. No. P-02-1651, J une 22, 2006, 492 SCRA 1.
433
Tenebro v. Court of Appeals, G.R. No.150758, February 18, 2004, 423 SCRA 272.
434
Santos v. Court of Appeals, G.R. No.112019, J anuary 4, 1995, 240 SCRA 20.
435
Id.
436
Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999, 320 SCRA 76.

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physical abuse and abandonment of the family by the spouse;
437
and a
spouse who is emotionally immature, alcoholic, irresponsible and a
fugitive from justice.
438

Additionally, the Supreme Court made pronouncements on the non-
existence of psychological incapacity, to wit: petition for declaration of
nullity of marriage based on irreconcilable differences and conflicting
personalities of the spouses;
439
flagrant promiscuity of a spouse with
psychologists report that said spouse suffers from social personality
disorder exhibited by blatant display of infidelity;
440
and habitual
alcoholism, infidelity, sexual perversion and abandonment by respondent
spouse.
441
The absence of cohabitation is not likewise a ground for
declaration of nullity, otherwise, according to the Supreme Court, marriage
will depend on the will of the parties.
442

b) Instances where there is no psychological incapacity. However, being
a pathological liar and living in a world of make believe constitute
psychological incapacity.
443
Unfitness as a lawyer, on the other hand, is
not automatic unfitness as a husband or vice versa as well as infidelity
and falsifying a spouses signature.
444
Neither a husband who is alleged
to be a Mamas boy and who made it appear in his seafarers book that
he is single so as to make the mother the beneficiary of his remittances
can be declared psychologically incapacitated.
445

c) Principle of coming to court with clean hands does not apply to
Article 36. The principle of coming to court with clean hand does not
apply to psychological incapacity cases for even the psychologically
incapacitated spouse may file the petition and both parties may be
declared psychologically incapacitated.
446

d) Psychological incapacity is not a ground to recover moral damages.
The psychological incapacity of a person is not a ground for recovery of
moral damages as psychological incapacity is beyond the control of a
person due to an innate inability to perform marital obligations.
447

437
Marcos v. Marcos, G.R. No. 136490, October 19, 2000, 343 SCRA 755.
438
Republic v. Dagdag, G.R. No.109975, February 9, 2001, 351 SCRA 425.
439
Choa v. Choa, G.R. No.143376, November 26, 2002, 392 SCRA 641.
440
Dedel v. Court of Appeals, G.R. No. 151867, J anuary 29, 2004, 421 SCRA 397.
441
Ferraris v. Ferraris, G.R. No. 162368, J uly 17, 2006, 495 SCRA 396.
442
Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006, 505 SCRA 564.
443
Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353.
444
Paras v. Paras, G.R. No. 147824, August 2, 2007, 529 SCRA 81.
445
Republic v, Baguio, G.R. No. 171042, J une 30, 2008, 556 SCRA 711.
446
Chi Ming Choi v. Court of Appeals, G.R. No. 119190, J anuary 16, 1997, 266 SCRA 324.
447
Buenaventura v. Court of Appeals, G.R. No. 127358, March 31, 2005, 454 SCRA 261.

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e) Who may file and when a petition for annulment of voidable
marriage. Under Section 3 of the Rule, the following may file a petition for
annulment of voidable marriage on any of the grounds under Article 45 of
the Family Code within the prescribed period:
the contracting party who did not obtain consent of parents and at
any time before such party has reached the age of twenty-one (21);
the sane spouse at any time before the death of either party; or by
the insane spouse during a lucid interval or after regaining sanity;
the injured party whose consent was obtained by fraud and within
five (5) years after the discovery of the fraud;
the injured party whose consent was obtained by force, intimidation,
or undue influence, within five (5) years from the time the force,
intimidation, or undue influence disappeared or ceased;
the injured party where the other spouse is physically incapable of
consummating the marriage and within five (5) years after the
celebration of marriage; and,
the injured party where the other party was afflicted with a sexually-
transmissible disease and within five (5) years after the celebration of
marriage.
448

5. Prohibited compromises and matters not subject of mediation.
Compromise is not allowed on the following: a) civil status of persons; b) validity
of a marriage or of a legal separation; c) ground for legal separation; d) future
support; e) jurisdiction of courts; and f) future legitime.
449

6. Trial. Section 17 states the presiding judge shall personally conduct trial and
no delegation of the reception of evidence to a commissioner is allowed, except
as to matters involving property relations. The grounds for declaration of absolute
nullity or annulment of marriage must be proved and no judgment on the
pleadings, summary judgment, or confession of judgment is allowed.

7. Confidentiality and Privacy of Proceedings. The court may exclude from
the courtroom all persons, including members of the press, who do not have a
direct interest in the case. The order may be made if the court determines that
requiring a party to testify in open court would not enhance the ascertainment of
truth; would cause to the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate the right of a

448
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES, Sec. 3.
449
Id., Sec. 16; RULE ON COURT-ANNEXED FAMILY MEDIATION, A.M. No. 10-4-16-SC, J une 22, 2010, Rule
1, Sec. 1.

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party to privacy; or would be offensive to decency or public morals. No copy may
be taken nor any examination or perusal of the records of the case or parts
thereof may be made by any person other than a party or counsel of a party,
except by order of the court.
450

8. Judgment. According to Section 19 of the Rule, if the court renders a decision
granting the petition, it shall declare that the decree of absolute nullity or decree
of annulment shall be issued by the court only after compliance with Articles 50
and 51 of the Family Code as implemented under the Rule on Liquidation,
Partition and Distribution of Properties. The parties, including the Solicitor
General and the public prosecutor, shall be served with copies of the decision
personally or by registered mail. If the respondent summoned by publication
failed to appear in the action, the dispositive part of the decision shall be
published once in a newspaper of general circulation.

9. When decision becomes final. The decision becomes final upon the
expiration of fifteen (15) days from notice to the parties. Entry of judgment is
made if no motion for reconsideration or new trial, or appeal is filed by any of the
parties, the public prosecutor, or the Solicitor General. Upon the finality of the
decision, the court issues the corresponding decree if the parties have no
properties. If the parties have properties, the court adopts the procedure
prescribed in Section 21 of the Rule. The entry of judgment is registered in with
the Civil Registry where the marriage was recorded and in the Civil Registry
where the family court granting the petition for declaration of absolute nullity or
annulment of marriage is located.
451

10. Liquidation, partition, distribution, custody, support of common
children and delivery of presumptive legitime. After entry of the judgment, or,
in case of appeal, after receipt of the entry of judgment of the appellate court
granting the petition, the family court, on motion of either party, proceeds with the
liquidation, partition and distribution of the properties of the spouses, including
custody, support of common children and delivery of their presumptive legitimes,
pursuant to Articles 50 and 51 of the Family Code, unless such matters had been
adjudicated in previous judicial proceeding.
452

450
MARRIAGES, Sec. 17.
451
Id., Sec. 19.
452
Id., Sec. 21.

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11. Property regime that governs after the marriage is declared null and
void. The property regime of a marriage declared null and void under Article 36
of the Family Code is governed by co-ownership.
453

12. Decree. Section 22 of the Rule states that the court shall issue the decree
after: (1) registration of the entry of judgment in the Civil Registry where the
marriage was celebrated and in the Civil Registry of the place where the family
court is located; (2) registration of the approved partition and distribution of the
properties of the spouses in the proper Register of Deeds where the real
properties are located; and (3) delivery of the children's presumptive legitimes in
cash, property, or sound securities.

13. Contents of the dispositive portion of the decision. The court states in
the decree the dispositive portion of the judgment entered and attach to the
decree the approved deed of partition. Except in the case of children covered
under Articles 36 and 53 of the Family Code, the court orders the Local Civil
Registrar to issue an amended birth certificate indicating the new civil status of
the children affected.
454

14. Registration and publication of the decree and decree as best
evidence. The prevailing party causes the registration of the decree in the Civil
Registry where the marriage was registered, the Civil Registry of the place where
the family court is situated, and in the National Census and Statistics Office and
reports to the court compliance with this requirement within thirty days from
receipt of the copy of the decree. If service of summons was by publication, the
parties shall cause the publication of the decree once in a newspaper of general
circulation. The registered decree is the best evidence to prove the declaration of
absolute nullity or annulment of marriage and serves as notice to third persons
concerning the properties of petitioner and respondent, as well as the properties
or presumptive legitimes delivered to their common children.
455

15. Effect of death of a party and duty of family or appellate court.
In case a party dies at any stage of the proceedings before the entry of judgment,
the court issues an order for the case to be declared closed and terminated,
without prejudice to the settlement of the estate in proper proceedings in the
regular courts. If the party dies after the entry of judgment of nullity or annulment,

453
Valdez v. Regional Trial Court of Quezon City, Branch 102 and Valdez, G.R. No. 112749, J uly 31,
1996, 260 SCRA 221.
454
MARRIAGES, Sec. 22.
455
Id., Sec. 23.

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the judgment is binding on the parties and their successors in interest in the
settlement of the estate in the regular courts.
456

B. RULE ON LEGAL SEPARATION

1. Coverage. The Rule on Legal Separation is A.M. No. 02-11-11-SC, effective
on March 15, 2003, and it governs petitions for legal separation under Article 55
of the Family Code, and the Rules of Court applies suppletorily.

2. Who may file and when. A petition for legal separation may be filed only by
the husband or the wife within five (5) years from the time of the occurrence of
any of the following causes:

repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
attempt of respondent to corrupt or induce the petitioner, a common child,
or a child of the petitioner, to engage in prostitution, or connivance in such
corruption or inducement;
final judgment sentencing the respondent to imprisonment of more than
six (6) years, even if pardoned;
drug addiction or habitual alcoholism of the respondent;
lesbianism or homosexuality of the respondent;
contracting by the respondent of a subsequent bigamous marriage,
whether in or outside the Philippines;
sexual infidelity or perversion of the respondent;
attempt on the life of petitioner by the respondent; and,
abandonment of petitioner by respondent without justifiable cause for
more than one (1) year.
457

3. Jurisprudence. Physical violence and grossly abusive conduct of respondent
against petitioner and respondents abandonment of petitioner without justifiable
cause for more than one (1) year are grounds for legal separation only, not for
declaration of nullity of marriage under Article 36 of the Family Code on
psychological incapacity.
458

456
Id., Sec. 24.
457
RULE ON LEGAL SEPARATION, Sec. 2.
458
Najera v. Najera, G.R. No. 164817, J uly 3, 2009, 591 SCRA 541.

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4. Pre-trial conference. At the pre-trial conference of a legal separation petition,
the court may refer the issues to a mediator who assists the parties in reaching
an agreement on matters not prohibited by law. The mediator renders a report
within one month from referral which, for good reasons, the court may extend for
a period not exceeding one (1) month. In case mediation is not availed of or
where it fails, the court proceeds with the pre-trial conference, on which occasion
it considers the advisability of receiving expert testimony and such other matters
that aids in the prompt disposition of the petition.
459

5. Prohibited compromises. The following cannot be the subject of amicable
settlement: 1) civil status of persons; 2) validity of a marriage or of a legal
separation; 3) ground for legal separation; 4) future support; 5) jurisdiction of
courts; and, 6) future legitime. Further, the presiding judge must personally
conduct the trial of the case. No delegation of the reception of evidence to a
commissioner is allowed except as to matters involving property relations of the
spouses. The grounds for legal separation must be proved and no judgment on
the pleadings, summary judgment, or confession of judgment shall be allowed.
460

6. Decree of legal separation. A Decree of Legal Separation is issued after: 1)
registration of the entry of judgment granting the petition for legal separation in
the Civil Registry where the marriage was celebrated and in the Civil Registry
where the family court is located; and 2) registration of the approved partition and
distribution of the properties of the spouses, in the proper Register of Deeds
where the real properties are located. The court quotes in the Decree the
dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
461

7. Effects of the decree of legal separation. The effects of the decree of legal
separation are as follows:
462
1) the spouse shall be entitled to live separately
from each other but the marriage bond shall not be severed; 2) the absolute
community or conjugal partnership is dissolved and liquidated but the offending
spouse shall have the right to any share of the net profits
463
earned by the
absolute community or conjugal partnership which is forfeited in favor of the
common children; and, 3) custody of the minor children is awarded to the
innocent spouse.

459
460
Id., Sec.13.
461
Id., Sec. 19.
462
FAMILY CODE, Art. 43.
463
Siochi v. Gozon, G.R. No. 169900, March 18, 2010.

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8. Registration, publication of decree and best evidence. The prevailing
party registers the Decree in the Civil Registry where the marriage was
registered, in the Civil Registry of the place where the family court is situated,
and in the National Census and Statistics Office. A report is submitted to the
court for compliance with the requirement within thirty (30) days from receipt of
the copy of the Decree. In case service of summons was made by publication,
the parties publish the Decree once in a newspaper of general circulation. The
registered Decree is the best evidence to prove the legal separation of the
parties and serves as notice to third persons concerning the properties of
petitioner and respondent.
464

9. Effect of death of party and duty of family, appellate court. If a party dies
at any stage of the proceedings before the entry of judgment, the case is ordered
closed and terminated, without prejudice to the settlement of estate proceedings
in the regular courts. If the party dies after the entry of judgment, the same is
binding on the parties and their successors in interest in the settlement of the
estate in the regular courts.
465

10. Petition for revocation of donations. Under Section 22 of the Rule, within
five (5) years from the time the decision becomes final, the innocent spouse may
file a petition under oath in the same proceeding for legal separation to revoke
the donations in favor of the offending spouse. The revocation of the donations
shall be recorded in the Register of Deeds of Deeds in the places where the
properties are located. Alienations, liens, and encumbrances registered in good
faith before the recording of the petition for revocation in the registries of property
are respected.

After the issuance of the Decree of Legal Separation, the innocent spouse
may revoke the designation of the offending spouse as a beneficiary in any
insurance policy even if such designation is stipulated as irrevocable. The
revocation or change takes effect upon written notification thereof to the
insurer.
466

11. Reconciliation of parties. If the spouses reconcile, a joint manifestation
under oath, duly signed by them may be filed in the same proceeding for legal
separation under Section 23 of the Rule.

464
465
Id., Sec. 21.
466
Id., Sec. 22.

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12. Reconciliation before issuance of decree. If the reconciliation occurred
while the proceeding for legal separation is pending, the court immediately issues
an order terminating the proceeding. If the reconciliation occurred after the
rendition of the judgment but before the issuance of the Decree, the spouses
shall express in their manifestation whether or not they agree to revive the former
regime of their property relations or choose a new regime. Then, the court issues
a Decree of Reconciliation setting aside the legal separation proceeding and
specifying the regime of property relations under which the spouses are covered.

13. Reconciliation after issuance of decree. If the spouses reconciled after the
issuance of the Decree, the court, on proper motion, issues a decree of
reconciliation stating that the Decree is set aside but the separation of property
and any forfeiture of the share of the guilty spouse already effected subsists,
unless the spouses have agreed to revive their former regime of property
relations or adopt a new regime.

14. Adoption of another regime upon reconciliation. If the reconciled spouses
choose to adopt a regime of property relations different from that which they had
prior to the filing of the petition, they shall comply with Section 24 of the Rule.
The decree of reconciliation is recorded in the Civil Registries where the
marriage and the Decree had been registered.
467

15. File a verified motion for revi val of regime of property relations or the
adoption of another regime in case of reconciliation. Similarly, under Section
23 of the Rule, when parties reconcile, they shall file a verified motion for revival
of regime of property relations or the adoption of another regime of property
relations in the same proceeding for legal separation, attaching to the motion
their agreement for the approval of the court. The agreement which must be
verified specifies the following: 1) properties to be contributed to the restored or
new regime; 2) those to be retained as separate properties of each spouse; and,
3) names of all their known creditors, their addresses, and the amounts owing to
each.

16. Notice to creditors if verified motion for revi val of regime of property
relations or the adoption of another regime in case of reconciliation is filed.
The creditors are furnished with copies of the motion and the agreement and
then the court requires the spouses to cause the publication of their verified
motion for two (2) consecutive weeks in a newspaper of general circulation. After
due hearing, and the court decides to grant the motion, an order is issued
directing the parties to record the order in the proper registries of property within

467
Id., Sec. 23.

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thirty (30) days from receipt of a copy of the order and submit proof of
compliance within the same period.

C. RULE ON PROVISIONAL ORDERS
The Rule on Provisional Orders is A.M. No. 02-11-12-SC, which took effect on
March 15, 2003.

1. Provisional orders. After receipt of a verified petition for declaration of
absolute nullity of void marriage or for annulment of voidable marriage, or for
legal separation, and at any time during the proceeding, the court, motu proprio
or upon application of any of the parties, guardian or designated custodian, may
issue provisional orders in the form of support, custody and visitation, and
administration of property. The court may also issue protection and hold-
departure orders.
468

2. Support. Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, and education, which includes schooling
and training for some profession or trade beyond the age of majority and
transportation, in keeping with the financial capacity of the family.
469
The amount
of support which those related by marriage and family relationship is generally
obliged to give each other shall be in proportion to the resources or means of the
giver and the needs of the recipient.
470

a) Spousal and child support

Spousal support
471
Child support
472

In the absence of agreement, the
spouses may be supported from the
properties of the absolute community or
the conjugal partnership and in an
amount and for such period of time as the
court may deem just and reasonable
based on standard of living during the
marriage.
Other factors to consider are the
following: 1) if spouse seeking support is
the custodian of a child; 2) the time
necessary to acquire sufficient education
and training; 3) duration of the marriage;
Common children are supported
from the properties of the absolute
community or the conjugal partnership.
Subject to the sound discretion of the
court, either parent or both may be
ordered to give an amount necessary
for the support, maintenance, and
education of the child. It is in proportion
to the resources or means of the giver
and to the necessities of the recipient.
However, the entitlement to support of
a child is dependent on the
determination of filiation.
474

468
RULE ON PROVISIONAL ORDERS, Sec. 1, March 15, 2003.
469
470
Lacson v. Lacson, G.R. No. 150644, August 28, 2006, 499 SCRA 677.
471
RULE ON PROVISIONAL ORDERS, Sec. 2.
472
Id., Sec. 3.

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4) comparative financial resources; 5)
needs and obligations of each spouse; 6)
contribution of each spouse to the
marriage, including services rendered in
home-making, child care, education, and
career building of the other spouse; 7)
age and health of the spouses; 8)
physical and emotional conditions of the
spouses; 9) ability of the supporting
spouse to give support; and, 10) other
factors the court may deem just and
equitable.
The family court may direct the
deduction of the provisional support from
the salary of the spouse.
473

To determine the amount of
provisional support, the court may
consider the following factors: 1)
financial resources of the custodial and
non-custodial parent and those of the
child; 2) physical and emotional health
of the child and his or her special
needs and aptitudes; 3) standard of
living the child has been accustomed
to; and 4) non-monetary contributions
that the parents will make toward the
care and well-being of the child.
In the same way as spousal
support, the family court may direct the
deduction of the provisional support
from the salary of the parent.
475

b) Other persons obliged to support each other
In addition to spouses, parents and children, other persons obliged to
support each other are the legitimate ascendants and descendants and
legitimate brothers and sisters, whether of full or half blood.
476
The inability of
parents to sufficiently provide for their children shifts a purpose of their
obligation to the ascendants in the nearest degree, both in the paternal and
maternal lines.
477

3. Child Custody. In custody cases, the court considers the best interest and
material and moral welfare of the child. The court likewise considers the following
factors: a) agreement of the parties; b) desire and ability of each parent to foster
an open and loving relationship between the child and the other parent; c) the
childs health, safety, and welfare; d) history of child or spousal abuse by the
person seeking custody or who has had any filial relationship with the child,
including anyone courting the parent; e) nature and frequency of contact with
both parents; f) habitual use of alcohol or regulated substances; g) marital
misconduct; h) the most suitable physical, emotional, spiritual, psychological and
educational environment; and, i) preference of the child if over seven [7] years of
age and of sufficient discernment, unless the parent chosen is unfit.

473
474
Nepomuceno v. Lopez, G.R. No. 181258, March 18, 2010.
475
Id., Sec. 3.
476
477
Lim v. Lim, G.R. No. 163209, October 30, 2009, 604 SCRA 691.

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a) Order of preference in custody
According to Section 4 of the Rule, the court may award provisional
custody in the following order of preference: 1) both parents jointly; 2) either
parent taking into account all relevant considerations especially the choice of
the child over seven [7] years of age, unless the parent chosen is unfit; 3) the
surviving grandparent, or if there are several of them, to the grandparent
chosen by the child over seven years of age and of sufficient discernment,
unless the grandparent is unfit or disqualified; 4) eldest brother or sister over
twenty-one years of age, unless he or she is unfit or disqualified; 5) childs
actual custodian over twenty-one years of age, unless unfit or disqualified; or,
6) any other person deemed by the court suitable to provide proper care and
guidance for the child.

b) Notice when planning to change residence of child
The custodian designated by the court shall give five days notice of any
plan to change the residence of the child or take the child out of residence for
more than 3 days, provided it does not prejudice the visitation rights of the
parents.
478

c) Visitation rights
Visitation rights are provided to the parent who is not awarded provisional
custody unless found unfit or disqualified by the court.
479

d) Hold departure order
Pending resolution of the petition, Section 6 of the Rule directs that no
child of the parties may be brought out of the country without prior order from
the court. The court, motu proprio or on application may issue ex-parte a hold
departure order, addressed to the Bureau of Immigration and Deportation,
directing it not to allow the departure of the child from the Philippines without
the permission of the court. The family court that issues the hold departure
order shall furnish the Department of Foreign Affairs and the Bureau of
Immigration and Deportation of the Department of J ustice a copy of the hold
departure order issued within twenty-four (24) hours from issuance and
through the fastest available means of transmittal.

e) Contents of petition for hold departure order
The hold-departure order contains the following information: 1) complete
name and middle name, date and place of birth, and the place of last
residence of the person against whom a hold-departure order is issued or
whose departure from the country is enjoined; 2) complete title and docket
number of the case in which the hold departure was issued; 3) specific nature
of the case; and 4) date of the hold-departure order. If available, a recent
photograph of the person against whom a hold-departure order has been

478
479
Id., Sec. 5.

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issued or whose departure from the country has been enjoined shall be
included. However, the court may recall the order, motu proprio or upon
verified motion of any of the parties, after summary hearing based on the best
interests of the child.
480

f) Order of protection
The court may issue an Order of Protection requiring any person: 1) to
stay away from the home, school, business, or place of employment of the
child, parent or other party, and any other specific place designated by the
court; 2) to refrain from harassing, intimidating, or threatening such child or
the other parent or any person to whom custody of the child is awarded; 3) to
refrain from acts of commission or omission that create an unreasonable risk
to the health, safety, or welfare of the child; 4) to permit a parent, or a person
entitled to visitation by a court order or a separation agreement, to visit the
child at stated periods; 5) to permit a designated party to enter the residence
during a specified period of time in order to take personal belongings not
contested in a proceeding pending with the family court; and 6) to comply with
such other orders as are necessary for the protection of the child.
481

g) Admi nistration of common property
Section 8 of the Rule provides that if a spouse without just cause,
abandons the other or fails to comply with his or her obligations to the family,
the court may, on application of the aggrieved party, issue a provisional order
appointing the applicant or a third person as receiver or sole administrator of
the common property. The receiver or administrator may not dispose of or
encumber any common property of either spouse without prior authority of the
court. The provisional order shall be registered in the Register of Deeds and
annotated in all titles of properties subject of the receivership or
administration.

D. PETITION FOR CUSTODY OF MINORS

1. Definition. A petition for custody of a minor child is a proceeding to
determine the right party or person to whom the custody of a child of the parties
may be awarded. The court shall consider the best interest of the child and shall
give paramount consideration to the material and moral welfare of the child.
482
A
custody case is subject to mediation.
483

a) Maternal preference rule i n custody of chil dren below seven (7) years
of age. Under Article 213, second paragraph of the Family Code, no child
under seven (7) years of age shall be separated from the mother, unless the

480
Id., Sec. 6.
481
Id., Sec. 7.
482
Id., Sec. 4; A.M. No. 02-11-12-SC, March 15, 2003.
483
A.M. 10-4-16-SC, Sec. 1, J une 22, 2010.

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court finds compelling reasons to order otherwise. This is called the
maternal preference rule or the tender-age presumption.
484
It contemplates
a situation in which the parents of the minor child are married to each other,
but are separated by virtue of either a decree of legal separation or a de facto
separation.
485

b) Mother has custody of child below seven (7) years of age in case of
separation of spouses. Upon separation of the spouses, the mother takes
sole custody if the child is below seven (7) years old and any agreement to
the contrary is void. The Supreme Court stated that for a child within this age
bracket, the law decides for the separated parents how best to take care of
the child and that is to give custody to the separated mother. Indeed, the
separated parents cannot contract away the provision in the Family Code on
the maternal custody of children below seven (7) years anymore than they
can privately agree that a mother who is unemployed, immoral, habitually
drunk, drug addict, insane or afflicted with a communicable disease will have
sole custody of a child under seven as these are reasons deemed compelling
to preclude the application of the exclusive maternal custody regime under
Article 213.
486

c) Maternal preference rule is mandatory. The provision on maternal
preference is mandatory in character and finds its raison detre in the basic
need of a child for a mothers love and care. And, only the most compelling of
reasons shall justify the courts awarding of custody of a child to someone
other than the mother, such as unfitness to exercise sole parental authority,
neglect, abandonment, unemployment, immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and being sick with a
communicable disease.
487

2. Award of custody is based on the best interest of the child

a) Meaning of best interest of child. In awarding custody, the court
shall consider the best interests of the minor and shall give paramount
consideration to his material and moral welfare. The best interests of the
minor refer to the totality of the circumstances and conditions as are most
congenial to the survival, protection, and feelings of security of the minor
encouraging to his physical, psychological and emotional development. It also
means the least detrimental available alternative for safeguarding the growth
and development of the minor.
488

484
Gamboa-Hirsch v. Court of Appeals, et.al., G.R. No. 174485, J uly 11, 2007, 527 SCRA 380.
485
Gualberto v. Court of Appeals, et.al., G.R. No. 156254, J une 28, 2005, 461 SCRA 450.
486
Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010, 611 SCRA 657.
487
Perez v. Court of Appeals, G.R. No.118870, March 29, 1996, 255 SCRA 661.
488
RULE ON CUSTODY OF MINORS AND HABEAS CORPUS IN RELATION TO CUSTODY OF MINOR CHILDREN, Sec.
14.

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b) Best interest is paramount consideration in custody cases. After
hearing, the court shall award the care, custody and control as will be for the
best interest of the child. The principle of best interest of the child, according
to the Supreme Court, pervades Philippine cases involving adoption,
guardianship, support, personal status, children in conflict with the law, and
child custody. The welfare of the minor child should always be the paramount
consideration and courts are mandated to take into account all relevant
circumstances that would have a bearing on the childs well-being and
development.
489

c) Equity may be invoked to serve the best interest of the child. In fact,
the Supreme Court made pronouncement in one case that in a child custody
proceedings filed with the Regional Trial Court of Makati City, equity maybe
invoked to serve the best interest of the child by letting the parties take
advantage of the jurisdiction of the court rather than ordering the dismissal of
the petition on the ground that the Circuit Court, 19
th
J udicial Circuit, Lake
County, Illinois, USA, which granted the decree of divorce retained jurisdiction
over the case for enforcement purposes.
490

d) Best interest of the child is provided for under the United Nations
Convention on the Rights of the Child. The United Nations Convention on
the Rights of the Child (UNCRC) provides that [i]n all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interest
of the child shall be a primary consideration.
491
Consequently, aside from the
material resources and the moral and social situation of each parent, other
factors may also be considered to ascertain which one has the potential to
attend to the physical, educational, social and moral welfare of the children.
492

3. Factors to consider in custody. Among the factors that may be considered
by the court in the award of custody are the following : 1) agreement of the
parties; 2) desire and ability of each parent to foster an open and loving
relationship between the child and the other parent; 3) childs health, safety, and
welfare; 4) any history of child or spousal abuse by the person seeking custody
or who has had any filial relationship with the child, including anyone courting the
parent; 5) nature and frequency of contact with both parents; 6) habitual use of
alcohol or regulated substances; 7) marital misconduct; and 8) the most suitable
physical, emotional, spiritual, psychological, and educational environment.
493

489
Supra note 485.
490
Supra note 486.
491
Supra note 485.
492
Id.
493

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4. Choice of the child above seven (7) years of age. The child, who is over
seven (7) years of age with sufficient discernment,
494
may choose the parent
preferred to live with, unless the parent so chosen is unfit to take charge of the
child by reasons, among others, of moral depravity, habitual drunkenness,
incapacity, or poverty. The Court may, however, exercise its discretion by
disregarding the childs preference if the chosen one be unfit, in which instance,
custody may be given to the other parent or even to a third person.
495

5. Other persons designated child custodian and order or preference. If
both parents are unfit, the court may designate other persons or an institution to
take charge of the child in the following order of preference: 1) paternal or
maternal grandparent of the child; 2) oldest brother or sister above twenty-one
[21] years of age; 3) actual custodian; or 4) or some other qualified, reputable
and discreet person as determined by the court.
496

6. Visitation rights. The court may permit the parent who is not awarded
custody to visit the child, unless found unfit or disqualified by the court.
497
The
visitation right referred to is the right of access of a noncustodial parent to his or
her child or children. Parents have the natural right, as well as the moral and
legal duty, to care for their children and see to their upbringing and safeguard
their best interest and welfare. Neither will the law nor the courts allow this
affinity to bear, absent any real, grave and imminent threat to the well-being of
the child. The father, therefore is granted visitation rights as his constitutionally
protected natural and primary right.
498

7. Award of custody does not deprive the husband of parental authority
and visitation right applied to illegitimate relationships. The award of
custody to the wife does not deprive the husband of parental authority. In
addition, there is nothing conclusive to indicate that such provision is meant to
solely address to legitimate relationships but explicitly encompass illegitimate
relationships as well.
499

494
Id., Sec. 13(b).
495
Tonog v. Court of Appeals, G.R. No. 122906, February 7, 2002, 376 SCRA 523.
496
497
498
Bongdagjy v. Bongdagjy, G.R. No.140817, December 7, 2001, 371 SCRA 462.
499
Silva v. Court of Appeals, G.R. No. 114742, J uly 17, 1997, 275 SCRA 604.

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E. SUMMARY PROCEEDINGS UNDER THE FAMILY CODE

1. Coverage. Summary procedure governs the cases enumerated in Articles
239,248,223,225,235,41,51,69,73,96,124,and 217 of the Family Code, to wit: 1]
judicial authorization for a transaction where the consent of an estranged spouse
is needed; 2] petition for judicial authority to administer or encumber specific
separate property of the abandoning spouse and to use the fruits of proceeds; 3]
petitions filed under Articles 223, 225, and 236 of the Family Code involving
parental authority; and, 4] summary proceedings filed under Articles 41, 51, 69,
96, 124, and 127, insofar as they are applicable.
500

2. Rationale for the summary nature of the procedure. The summary
remedy is principally to address the problem of separated spouses wherein one
of them usually has difficulty obtaining the consent of the other spouse for a
transaction where such consent is required. The summary remedy, however,
also applies to other cases provided for in the Family Code where court approval
is needed.

3. Nature of the summary procedure. The nature of the summary procedure
set forth in the Family Code as regards separation of fact between husband and
wife, abandonment of one by the other, and incidents involving parental authority,
for instance, is as follows: 1) a verified petition is filed setting forth the alleged
facts and attaching the proposed deed of the transaction involved;
501
2) notice
shall be given to all interested persons accompanied by a copy of the petition;
502

3) a preliminary conference shall be conducted by the judge personally without
the parties being assisted by counsel and after the initial conference, if the court
deems it useful, the parties may be assisted by counsel at the succeeding
conference and hearings;
503
4) if attendance of non-consenting spouse is not
secured, then the court may proceed ex parte and render judgment as the facts
and circumstances warrant, but the court shall endeavor to protect the interests
of the non-appearing party; 5) the case shall be heard on the basis of affidavit,
documentary evidence or oral testimonies at the sound discretion of the court
and if testimony is needed, the court shall specify the witnesses to be heard and
the subject matter of their testimonies, directing the parties to present said
witnesses.
504

500
FAMILY CODE, Arts. 238 to 253.
501
Id., Art. 239.
502
Id., Art. 242.
503
Id., Art. 243.
504
Id., Art. 246.

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4. Judgment. The judgment of the court is immediately executory. Accordingly,
the Supreme Court ruled in one case that there is no reglementary period within
which to perfect an appeal because judgments rendered therein, by express
provision of Section 247, Family Code, are "immediately final and executory". It
was erroneous, therefore, on the part of the lower court to give due course to the
Republics appeal in this case and order the transmittal of the entire records of
the case to the Court of Appeals.
505

Moreover, the petition to have the absent spouse declared presumptively
dead that had for its purpose the desire to contract a valid subsequent marriage
is a summary proceeding under the Family Code, not a special proceeding under
the Revised Rules of Court and appeal for which calls for the filing of a Record
on Appeal. It being a summary ordinary proceeding, the filing of a Notice of
Appeal from the trial courts order sufficed.
506

505
Republic of the Philippines v. Bermudez-Lorino, G.R. No. 160258, J anuary 19, 2005, 449 SCRA 57.
506
Republic of the Philippines v. Court of Appeals, G.R. No. 163604, May 6, 2005, 458 SCRA 200.

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XVII. PROCEEDINGS UNDER REP. ACT NO. 9262, RULE ON VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN
507

A. Coverage

This Rule applies to petitions for protection orders in cases of violence against
women and their children (VAWC) under R.A. No. 9262, or the "Anti-Violence
Against Women and Their Children Act of 2004." The Rules of Court apply
suppletorily and is construed to promote its objectives pursuant to the principles of
restorative justice.
508

B. Definition of violence against women and their children

"Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or a woman
with whom the person has or had a dating or sexual relationship, or with whom he
has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty.
509

C. Rule on preference in the application for protection order

The filing of a petition for protection order by the offended party suspends the
right of all other authorized parties to file similar petitions. A petition filed by the
offended party after the filing of a similar petition by an authorized party shall not be
dismissed but consolidated with the petition that is filed earlier.
510

D. No mutual, multiple protection order

No mutual protection order maybe issued to both petitioner and respondent,
observing the above order of priority and exclusion rule and in order not to confuse
the authority implementing the protection order. The court first taking cognizance of
the case retains jurisdiction over it and no other court may issue another protection
order.
511

507
Administrative Matter No. 04-10-11, effective November 15, 2004.
508
Id., Secs. 1 and 2.
509
Id., Sec. 4.
510
Id., Sec. 8.
511
Pena v. Recto, G.R. No.176403, J une 20, 2007 (Minute Resolution).

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E. Exemption from docket fees, other expenses

If the offended party is an indigent or there is an immediate necessity due to
imminent danger or threat of danger to act on a petition for a protection order, the
court shall accept the petition without payment of the filing fee and other fees and of
transcripts of stenographic notes.
512
The petition filed in a multi-station court shall be
raffled without delay. If an action contains an application for a protection order, it
shall be the subject of a special raffle.
513

F. Ex-parte issuance of temporary protection order (TPO)

If the court is satisfied from the verified allegations of the petition that there is
reasonable ground to believe that an imminent danger of violence against women
and their children exists or is about to recur, the court may issue ex parte a
temporary protection order which shall be effective for thirty days from service on the
party or person sought to be enjoined. The temporary protection order shall include
notice of the date of the preliminary conference and hearing on the merits. The
following statements must be printed in bold-faced type or in capital letters on the
protection order issued by the court:

"VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.

"IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE
DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON
THE MERITS ON THE ISSUANCE OF .A PERMANENT
PROTECTION ORDER, THE COURT SHALL NOT RESCHEDULE
OR POSTPONE THE PRELIMINARY CONFERENCE AND
HEARING BUT SHALL APPOINT A LAWYER FOR THE
RESPONDENT AND IMMEDIATELY PROCEED WITH SAID
HEARING.

"IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF
THE PRELIMINARY CONFERENCE AND HEARING ON THE
MERITS DESPITE PROPER NOTICE, THE COURT SHALL
ALLOW EX PARTE PRESENTATION OF EVIDENCE BY THE
PETITIONER AND RENDER J UDGMENT ON THE BASIS OF THE
PLEADINGS AND EVIDENCE ON RECORD. NO DELEGATION
OF THE RECEPTION OF EVIDENCE

512
Administrative Matter No. 04-10-11, Sec. 13.
513
Id., Sec. 14.

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G. History of abusive character

The court may allow the introduction of any evidence of history of abusive
conduct of a respondent even if the same was not directed against the victim,
provided the same is relevant. The court may order the exclusion from the courtroom
of all persons who do not have a direct interest in the case. Such an order may be
made if the court determines on the record that requiring a party to testify in open
court: 1) would not enhance the ascertainment of truth; 2) would cause the party
psychological harm; 3) would violate the right of a party to privacy; or 4) would be
offensive to decency or public morals.
514

H. Prohibited acts

The court hearing a petition for a protection order shall not order, direct, force
or in any way unduly influence the applicant for a protection order to compromise or
abandon any of the reliefs sought in the petition for protection under the law and this
Rule. Failure to comply with this section shall render the judge administratively
liable.
515

I. Period to decide

The court shall decide the petition within thirty (30) days after termination of
the hearing on the merits. Where no hearing has been conducted, the court shall
decide the petition within ten days after the termination of the preliminary
conference.
516

J. Judgment

If the court finds the petition meritorious, it shall render judgment granting the
offended party permanent protection against acts of violence and such other
necessary reliefs provided in Section 11 of this Rule. The court shall not deny the
issuance of a permanent protection order due to the lapse of time between the act of
violence and the filing of the petition, subject to Section 24, Rep. Act No. 9262. The
judgment shall be immediately executory.
517

514
Id., Sec. 26.
515
Id., Sec. 27.
516
Id., Sec. 29.
517
Id., Sec. 30.

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K. Prosecution of civil action for damages

The civil action for damages shall be governed by the 1997 Rules of Civil
Procedure. However, the offended party cannot recover the same damages twice for
the same act or omission.
518

L. Prosecution of criminal action

Section 36 of the Rule states that an act of violence covered by R.A. No. 9262
constituting a criminal offense shall subject the offender to criminal proceedings,
which shall be governed by the Revised Rules of Criminal Procedure. Where the
judgment of conviction declares that the guilt of the accused has been proved
beyond reasonable doubt, the permanent protection order shall issue as a matter of
course.

M. Conspiracy applied

In a relevant case, the Supreme Court stated that the principle of conspiracy
under Article 8 of the Revised Penal Code may be applied suppletorily to Rep. Act
No. 9262, in view of the express provision of Section 47 that the Revised Penal
Code shall be supplementary to said law. Thus, general provisions of the Revised
Penal Code, which by their nature, are necessarily applicable, may be applied
suppletorily.
519

N. Defense of battered woman syndrome (BWS)

To avail of the defense of battered woman syndrome (BWS), the following
elements must concur: (1) couple is in battering cycle at least two times (2) final
acute battering produced in mind of battered person actual fear of imminent harm,
and (3) at the time of the killing batterer posed probable grave harm.
520

O. Bond to keep peace

The court may also order any person, against whom a permanent protection
order is issued, to give a bond to keep the peace. It shall be the duty of said person
to present two sufficient sureties who shall undertake that such person will not

518
Id., Sec. 35.
519
Go-Tan v. Spouses Perfecto and Juanita Tan, G.R. No. 168852, September 30, 2008, 567 SCRA 231.
520
People v. Genosa, G.R. No. 148220, J une 15, 2005, 460 SCRA 85.

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commit the violence sought to be prevented, and that, in case such violence is
committed they will pay the amount determined by the court in its judgment. The
court in its discretion shall fix the duration of the bond.
521

P. Reproduction of evidence

An order granting the issuance of a permanent protection order is without
prejudice to a trial on the merits of the criminal or civil action involving violence
against women and their children. The evidence adduced during the hearing for the
issuance of a permanent protection order may, upon motion, be reproduced in the
criminal or civil action without prejudice to the cross-examination of witnesses and
presentation of additional evidence.
522

Q. Privacy and confidentiality of proceedings

All hearings of cases of violence against women and their children shall be
conducted in a manner consistent with the dignity of women and their children and
respect for their privacy. Records of the cases shall be treated with utmost
confidentiality. Whoever publishes or causes to be published, in any format, the
name, address, telephone number, school, business address, employer or other
identifying information of the parties or an immediate family or household member,
without their consent or without authority of the court, shall be liable for contempt of
court and shall suffer the penalty of one year imprisonment and a fine of not more
than Five Hundred Thousand (P500,000.00) Pesos.
523

R. System of coding

The system of coding is adopted to ensure confidentiality in violence against
women and their children cases. In a case in point, the Supreme Court resolved to
withhold the name and the personal circumstances of the victim-survivors or any
other information tending to establish or compromise their identities and those of
their immediate family or household members. The basis for the Court ruling are the
provisions of Rep. Act No. 7610, the Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act, and its implementing rules; Rep. Act No.
9262, or the Anti-Violence Against Women and Their Children Act of 2004, and its
implementing rules; and the Courts own Rule on Violence Against Women and their
Children. Additionally, on February 14, 2006, the Supreme Court issued a directive
to refrain from posting in the Court website the full text of the decisions in cases of
child sexual abuse.
524

521
Administrative Matter No. 04-10-11, Sec. 37.
522
Id., Sec. 38.
523
Id., Sec. 40.
524
People of the Philippines v. Melchor Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA
419.

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XVIII. PROCEEDINGS UNDER OTHER SUPREME COURT CIRCULARS

A. RULE ON THE WRIT OF AMPARO

1. Definition. A writ of amparo is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private individual or entity.
It applies to cases involving extralegal killings and enforced disappearances or
threats thereof pending in the trial and appellate courts.
525

2. Definition of extralegal killings and enforced disappearance of persons

a) Extralegal killings. Extralegal killings are killings committed without due
process of law, i.e, without legal safeguards or judicial proceedings. As such,
these will include the illegal taking of life regardless of the motive, summary
and arbitrary executions, salvagings even of suspected criminals, and
threats to take the life of persons who are openly critical of erring government
officials and the like.
526

b) Enforced or involuntary disappearance. Enforced or involuntary
disappearance of persons means the arrest, detention and abduction of
persons by, or with the authorization, support or acquiescence of a State or
political organization followed by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of those persons,
with the intention of removing from the protection of the law for a prolonged
period of time.
527

3. Contents of the petition. The petition must be verified, signed, and shall
allege the following:

personal circumstances of the petitioner;
name and personal circumstances of the respondent or, if the name is
unknown or uncertain may be described by an assumed appellation;
right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such is committed detailed in supporting affidavits;
investigation conducted, if any;

525
Rule on the Writ of Amparo, Sections 23 and 26.
526
As the term is used in United Nations Instruments, Annotation to the Rule on the Writ of Amparo.
527
Republic Act No. 9851, Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity, Section 3.

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actions and recourses taken by petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and,
the relief prayed for.

The petition may include a general prayer for other just and equitable
relief.
528

4. Conspiracy. A mere allegation of conspiracy and manhandling in the arrest
will not entitle petitioner to the writ of amparo. In a relevant case, the Supreme
Court held that respondents bare allegations that petitioners in unison,
conspiracy and in contempt of court, there and then willfully, forcibly and
feloniously with the use of force and intimidation entered and forcibly, physically
manhandled the petitioners (respondents) and arrested the herein petitioners
(respondents) will not suffice to prove entitlement to the remedy of the writ of
amparo. No undue confinement or detention was present. In fact, respondents
were even able to post bail for the offenses a day after their arrest.

5. When the writ does not apply; jurisprudence

a) After release from confinement, allegation of undue and continuing
restraint will not entitle petitioner to the writ of amparo.
In one case, the Supreme Court ruled that although respondents
release from confinement does not necessarily hinder supplication for the writ
of amparo, absent any evidence or even an allegation in the petition that
there is undue and continuing restraint on their liberty, and/or that there exists
threat or intimidation that destroys the efficacy of their right to be secure in
their persons, the issuance of the writ cannot be justified.
529

b) Threatened demolition by virtue of final judgment of the court is not a
ground for writ of amparo.
Additionally, 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. When recourses in
the ordinary course of law fail because of deficient legal representation or the
use of improper remedial measures, neither the writ of certiorari nor that of
amparo - extraordinary though they may be - will suffice to serve as a curative
substitute.
530

528
RULE ON THE WRIT OF AMPARO, Sec. 5.
529
Castillo v. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628.
530
Canlas v. NAPICO Homeowners, G.R. No. 182795, J une 5, 2008, 554 SCRA 208.

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c) Restriction on the right to travel as a consequence of the criminal
case filed is not unlawful to merit the granting of the writ of amparo.
In another case,
531
the Supreme Court En Banc affirmed the decision of the
Court of Appeals denying the petition for writ of amparo of Father Reyes
stating that he failed to establish that his right to travel was impaired in the
manner and to the extent that it amounted to a serious violation of his right to
life, liberty and security, for which there exists no readily available legal
recourse or remedy.

d) Amparo cannot be filed against an incumbent President.
In the case of Razo, Jr., vs. Tagitis,
532
the Supreme Court held that
there can be no issuance of a writ of amparo against President Gloria
Macapagal Arroyo since an incumbent president enjoys the privilege of
immunity from suit.

6. Who may file petition
a) Order of preference
Section 2 of the Rule provides that the petition may be filed by the
aggrieved party or by any qualified person or entity in the following order: 1)
Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party; 2) Any ascendant, descendant or collateral
relative of the aggrieved party within the fourth civil degree of consanguinity
or affinity, in default of those mentioned in the preceding paragraph; or 3) Any
concerned citizen, organization, association or institution, if there is no known
member of the immediate family or relative of the aggrieved party.

b) Suspension of right of persons authorized to file when the aggrieved
party filed the petition.
The filing of a petition by the aggrieved party suspends the right of all
other authorized parties to file similar petitions and the filing by an authorized
party on behalf of the aggrieved party suspends the right of all others,
observing the order established by the Rule.

7. Where to file petition. Venue for the filing of a writ of amparo is governed by
Section 3 of the Rule. The petition may be filed with the Regional Trial Court of
the place where the threat, act or omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court,
or any justice of such courts and is enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or a judge thereof, the writ is returnable

531
Reyes v. Court of Appeals, G.R. No. 182161, December 3, 2009, 626 SCRA 580.
532
G.R. No. 182498, J une 22, 2010.

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E-110
before such court or judge; when issued by the Sandiganbayan or the Court of
Appeals or any of their justices, it may be returnable before such court or any
justice thereof, or to any Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred; or when issued by the
Supreme Court or any of its justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan or the Court of Appeals or any
of their justices, or to any Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements occurred.
533

8. Payment of docket fees is not required. The petitioner is exempt from the
payment of the docket and other lawful fees and the court, justice or judge
dockets the petition and acts upon it immediately.
534

9. Summary hearing. The hearing on the petition is summary. But the court may
call for a preliminary conference to simplify issues and determine the possibility
of obtaining stipulation and admissions from the parties. The hearing is from day
to day until completed and given priority as petitions for habeas corpus.
535

10. Interim reliefs. Under Section 14 of the Rule, upon filing of the petition or at
any time before final judgment, the court may grant an interim relief order in the
form of temporary protection order (TPO), inspection order (IO), production order
(PO) or witness protection order (WPO). (For a more extensive discussion of the
interim relief orders, please refer to the Chapter on Provisional Remedies).

11. Availability of interim reliefs to respondent. Upon a verified motion of
respondent and after due hearing, the court may issue an inspection order or
production order. A motion for inspection order shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the defenses of the
respondent.
536

12. Contempt. The court may order the respondent who refuses to make a
return, or who makes a false return or any person who otherwise disobeys or
resists a lawful process or order of the court to be punished for contempt and
may be imprisoned or imposed a fine.
537

533
Id., Sec. 3.
534
Id., Sec. 4.
535
Id., Sec. 13.
536
Id., Sec. 15.
537
Id., Sec. 17.

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E-111
13. Burden of proof and standard of diligence required. The parties establish
claims by substantial evidence. Hence, the respondent who is a private individual
or entity must prove that ordinary diligence was observed in the performance of
duty. The respondent who is a public official or employee must prove that
extraordinary diligence was observed in the performance of duty. However, the
respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed to evade responsibility or liability.
538

14. Judgment. The court renders judgment within ten (10) days from the time
the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court grants the privilege of the writ and such reliefs,
otherwise, the privilege is denied.
539

In a petition for a writ of amparo granted by the Court of Appeals,
Raymond and Reynaldo Manalo alleged that they were abducted by armed men
belonging to the Citizens Armed Forces Geographical Unit (CAGFU) in San
Ildefenso, Bulacan in February 2006 on the suspicion that they are members and
supporters of the New Peoples Army. The Secretary of the National Defense
and the Chief of Staff of the Armed Forces of the Philippines questioned the
decision of the Court of Appeals that requires and directs their offices: to furnish
the Manalos and the Court of Appeals with all official and unofficial investigation
reports as to the Manalos custody; to confirm the present places of official
assignment of two military officials involved; and to produce all medical reports
and records of the Manalo brothers while under military custody. In upholding the
decision of the Court of Appeals, the Supreme Court ruled that there is a
continuing violation of the right to security of the Manalo brothers in that while the
respondents were detained, they were threatened that if they escaped, they and
their families would be killed.
540

15. Appeal in writ of amparo. Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both and the period of appeal is five (5) working days from the date
of notice of the adverse judgment. The appeal petition for writ of amparo is given
the same priority as habeas corpus cases.
541

9. Effect on substantive rights. The Rule shall not diminish, increase or
modify substantive rights recognized and protected by the Constitution. And, the
Rules of Court apply suppletorily insofar as it is not inconsistent with the Rule.
542

538
Id..
539
Id., Sec. 18.
540
Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008, 568 SCRA 1.
541
RULE ON THE WRIT OF AMPARO, Sec. 19.
542
Id., Secs. 24 and 25.

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E-112
B. WRIT OF HABEAS DATA

1. Definition. The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual
or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved
party.
543

2. Nature of petition. Petitions for writs of amparo and habeas data are
extraordinary remedies which cannot be used as tools to stall the execution of a
final and executory decision in a property dispute. Hence, in one case,
544
the
Supreme Court held that the filing of the petitions should have been barred, for
criminal proceedings against the parties had commenced after they were
arrested in flagrante delicto and proceeded against in accordance with Section 6,
Rule 112 of the Rules of Court. However, according to the Supreme Court, the
validity of the arrest or the proceedings conducted is a defense that may be set
up by respondents during the trial. The relief afforded by the writs may, however,
be made available to the aggrieved party by motion in the criminal proceedings.

To produce the investigation report of the Philippine National Police
(PNP) regarding the burning of homes is not a ground to issue writ of
habeas data.

In a petition for habeas data
545
praying, among others, that the Philippine
National Police (PNP) release the report, to wit: on the burning of the homes of
the petitioners in the land in dispute, the acts of violence employed against them
by the private respondents, and the investigation report if an investigation was
conducted furnishing the Supreme Court and the petitioners with copy of the
same, the Court found the petition to be lacking. What the Rule on Writ of
Habeas Data requires- concrete allegations of unjustified or unlawful violation of
the right to privacy related to the right to life, liberty or security as a minimum,
thus rendering the petition fatally deficient.

The Supreme Court continued to state in the above case that the petition
did not allege, much less demonstrate, any need for information under the control
of police authorities other than those it has already set forth as integral annexes.
The necessity or justification for the issuance of the writ, based on the
insufficiency of previous efforts made to secure information, has not also been
shown. In sum, the prayer for the issuance of a writ of habeas data is nothing
more than the fishing expedition that the Court - in the course of drafting the

543
RULE ON THE WRIT OF HABEAS DATA, Sec. 1.
544
Castillo vs. Cruz, G.R. No. 182165, November 25, 2009, 605 SCRA 628.
545
Masangkay, et.al. v. Hon. Elmo del Rosario, G.R. No. 182484, J une 17, 2008, 554 SCRA 768.

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E-113
Rule on habeas data - had in mind in defining what the purpose of a writ of
habeas data is not. In this light, the outright denial of the petition for the issuance
of the writ of habeas data is fully in order.

3. Where to file petition. The petition may be filed with the Regional Trial Court
where the petitioner or respondent resides, or that which has jurisdiction over the
place where the data or information is gathered, collected or stored, at the option
of the petitioner. The petition may also be filed with the Supreme Court or the
Court of Appeals or the Sandiganbayan when the action concerns public data
files of government offices.
546

4. Docket fees in writ of habeas data. No docket and other lawful fees are
required from an indigent
547
petitioner. The petition is docketed and acted upon
immediately, without prejudice to subsequent submission of proof of indigence
not later than fifteen (15) days from the filing of the petition.
548
The clients of the
Public Attorneys Office (PAO) are exempt from payment of docket and other
fees incidental to instituting an action in court in original proceeding or on
appeal.
549

5. Petition for writ of habeas data and contents. A verified written petition for
a writ of habeas data should contain the following:

1) personal circumstances of the petitioner and the respondent;
2) manner the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party;
3) actions and recourses taken by the petitioner to secure the data or
information;
4) location of the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or information, if
known;
5) relief prayed for, which may include the updating, rectification, suppression
or destruction of the database or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order enjoining the
act complained of; and
6) other relevant relief as are just and equitable.
550

546
547
One who has no property and money sufficient for food, shelter, and basic necessities for them and
their family, as held in the case of Algura v. Local Government of the City of Naga, G.R. No. 150135,
October 30, 2006, 506 SCRA 81.
548
549
Rep. Act No. 9406, Sec. 16(d).
550

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E-114
6. Contents of return.
551
The respondent shall file a verified written return
together with supporting affidavits within five (5) work days from service of the
writ, which period may be reasonably extended by the Court for justifiable
reasons. The return shall, among other things, contain the following: 1] the lawful
defenses; 2] in case of respondent in charge, in possession or in control of the
data or information subject of the petition: (i) a disclosure of the data or
information about the petitioner, the nature of such data or information, and the
purpose for its collection; (ii) the steps or actions taken by the respondent to
ensure the security and confidentiality of the data or information; and
(iii) the currency and accuracy of the data or information held; and 3] other
allegations relevant to the resolution of the proceeding. A general denial of the
allegations in the petition is not allowed.

7. Defenses heard in chamber. A hearing in chambers may be conducted
where the respondent invokes the defense that the release of the data or
information in question shall compromise national security or state secrets, or
when data or information cannot be divulged to the public due to its nature or
privileged character.
552

8. Judgment. The court renders judgment within ten (10) days from the time
the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court enjoins the act complained of, or order the
deletion, destruction, or rectification of the erroneous data or information and
grant other relevant reliefs as may be just and equitable; otherwise, the privilege
of the writ is denied. Upon its finality, the judgment is enforced by the sheriff or
any lawful officer designated by the court, justice or judge within five (5) working
days.
553

9. Substantive rights and suppletory application of the Rule of Court. This
Rule shall not diminish, increase or modify substantive rights,
554
and the Rules of
Court apply suppletorily insofar as it is not inconsistent with the Rule.
555

551
Id., Sec. 7.
552
553
Id., Sec. 16.
554
Id., Sec. 23.
555
Id., Sec. 24.

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