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EXECUTIVE COMMITTEE

IAN MICHEL GEONANGA overall chairperson,


J OSE ANGELO DAVID chairperson for
academics, RUTH ABIGAIL ACERO
chairperson for hotel operations, ALBERTO
RECALDE, J R. vice-chairperson for operations,
MARIA CARMELA HAUTEA vice-chairperson
for secretariat, MARK EMMANUEL ABILO vice-
chairperson for finance, RYAN LIGGAYU vice-
chairperson for electronic data processing,
J OMARC PHILIP DIMAPILIS vice-chairperson
for logistics
SUBJECTCOMMITTEE
CAMILLE SOLA subject chair, REA NIA
OCFEMIA assistant subject chair, ARIEL
MAGHIRANG edp, VIANNE MARIE
GARCIA and FLOYD ERICSON REY civil
procedure, SHEENA MARIE PABUSTAN
special civil actions, CHARMAINE
DATOC special proceedings, FIDEL
ESTEBAN criminal procedure,
EMMALLAINE LEONILLE LORETO and
PRINCESS MAY BUTRON evidence,
EDRIAN APAYA special laws
MEMBERS
Rachelle Ann Baod, Cecille
Catherine Bautista, Sheigla
Nerie David, Charisma
Michelle de J esus, Norietess
de los Reyes, Nina Claire
Escoto, Ryan Mervin Ferrer,
Angel Garma, Robert J ay
Lim, Divina Rosa Natanauan,
Haroun Al-Rashid
Pandapatan, Roger Arpee
Pineda, Pia Mitzi Receno
REMEDIALLAW SPECIALPROCEEDINGS
Special Proceeding
A remedy by which a party seeks to establish a status, a
right or a particular fact (Rule 1, Section 3c).
SECTION 1. SUBJECT MATTER OF SPECIAL
PROCEEDINGS
Special proceedings enumerated in the Rules of Court
(J-CRASHED-CHAG)
1. Judicial approval of voluntary recognition of minor
natural children;
2. Change of name;
3. Rescission and revocation of adoption;
4. Adoption;
5. Settlement of estate of deceased persons;
6. Habeas corpus;
7. Escheat;
8. Declaration of absence and death;
9. Cancellation and correction of entries in the civil
registry;
10. Hospitalization of insane persons;
11. Adoption;
12. Guardianship and custody of children;
Other Special Proceedings (LCR-VA)
1. Liquidation proceedings;
2. Corporate rehabilitation;
3. Recognition and enforcement of arbitration clause or
award;
4. Vacation, setting aside, correction or modification of an
arbitral award;
5. Any application with a court for arbitration assistance
and supervision.
Note: The list under Sec. 1, Rule 72 is not exclusive. Any
petition which has for its main purpose the establishment
of a status, right or a particular fact may be included as a
special proceeding (Festin, Special Proceedings, A
Foresight to the Bar Exam: Question and Answer Notes,
Bar Questions, Cases, Updated Laws and Rules, 2011
ed., p. 1).
SECTION 2. APPLICABILITY OF RULES OF 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.
The word practicable is defined as: possible to practice
or perform; capable of being put into practice, done or
accomplished. This means that in the absence of special
provisions, rules in ordinary actions may be applied in
special proceedings as much as possible and where doing
so would not pose an obstacle to said proceedings.
Nowhere in the Rules of Court does it categorically say
that rules in ordinary actions are inapplicable or merely
suppletory to special proceedings. Provisions of the Rules
of Court requiring certificate of non-forum shopping for
complaints and initiatory pleadings, a written explanation
for non-personal service and filing, and the payment of
filing fees for money claims against an estate would not in
any way obstruct probate proceedings (Sheker v. Estate
of Alice Sheker, Medina, G.R. No. 157912, December 13,
2007).
Notwithstanding Sec. 2, Rule 72, intervention as set forth
under Rule 19 does not extend to creditors of a decedent
whose credit is based on a contingent claim. Sec. 1, Rule
19 requires that an intervenor has a legal interest in the
matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to
be adversely affected by a distribution or other disposition
of property in the custody of the court x x x. While the
language of Sec. 1, Rule 19 does not literally preclude
petitioners from intervening in the intestate proceedings,
case law has consistently held that the legal interest
required of an intervenor must be actual and material,
direct and immediate, and not simply contingent or
expectant (Hilado, et al. v. Court of Appeals, G.R. No.
164108, May 8, 2009).
RULE 72
SUBJECT MATTER AND
APPLI CABI LI TY OF GENERAL RULES
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Ordinary Action
Special
Proceeding
Nature
Generally
adversarial in
nature. There are
definite parties
plaintiff vs.
defendant.
Generally no
definite adverse
party because it is
directed against
the whole world,
as majority of
special
proceedings are in
rem.
Purpose
To protect or
enforce a right or
prevent or
redress a wrong.
To establish a
right, status or
fact.
Governing
Rules
It is governed by
ordinary rules
supplemented by
special rules.
It is governed by
special rules
supplemented by
ordinary rules.
Court with
Jurisdiction
It is heard by
courts of general
jurisdiction.
It is heard by
courts of limited
jurisdiction.
How initiated
Initiated by a
pleading and
parties respond
through an
answer after
being served with
summons.
Initiated by means
of a petition and
parties respond by
means of an
opposition after
notice and
publication are
made.
Applicability
of pleadings
Parties are
generally allowed
to file an answer,
counterclaim,
cross-claim and
third-party
complaint.
Law on pleadings
generally not
applicable.
Appeal
The period to
appeal is only 15
days and notice
of appeal suffices.
The period to
appeal is 30 days
and aside from a
notice of appeal, a
record on appeal
is required.
Ordinary Civil
Action
Special Civil
Action
Special
Proceeding
One by which a
party sues
another for the
enforcement or
protection of a
right or the
prevention or
redress of a
Civil action
subject to
specific rules.
Remedy by
which a party
seeks to
establish a
status, a right or
a particular fact.
wrong.
Governed by the
rules for ordinary
civil actions.
Ordinary rules
apply primarily
but subject to
specific rules.
Governed by
special rules
and ordinary
rules apply as
far as
practicable.
Involves two or
more parties.
Involves two or
more parties.
May involve only
one party.
Initiated by
complaint.
Some are
initiated by
complaint while
some are
initiated by
petition.
Initiated by
petition.
Based on a
cause of action.
Some special
civil actions have
no cause of
action.
Not based on a
cause of action
(except Habeas
Corpus).
Summary of venues and jurisdiction for different
Special Proceedings
Venue Jurisdiction
Estate settlement (Rules 73-90)
Province of decedents
residence at the time of
death
MTC If estates gross
value does not exceed
PhP300K (PhP400K in
Metro Manila)
If non-resident decedent
Province where he had
estate
RTC If estates gross
value exceed MTCs
jurisdiction
Escheat (Rule 91)
If decedent dies intestate
and without heirs Province
where decedent last resided
or where estate is
If reversion Province where
land lies wholly/partially
Guardianship (Rule 92)
Family Court If minor
ward
Where ward resides or
where his property is located
(if non-resident) RTC If other than minor
ward
Trusteeship (Rule 98)
Where the will was allowed
or where the property
affected by the trust is
located
RTC
Adoption (AM No. 02-6-02, RA 8043)
If domestic where adopter
resides
Family Court
If inter-country where
adoptee resides (if filed with
Family Court or Inter-
Country Adoption Board
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Family Court)
If rescission of adoption
where adoptee resides
Family Court
Habeas Corpus (Rule 102)
SC (on any day and at
any time, enforceable
anywhere in the
Philippines)
Sandiganbayan (only in
aid of its appellate
jurisdiction)
CA (in instances
authorized by law,
enforceable anywhere in
the Philippines)
Where detainee is detained
(if filed in RTC)
RTC (on any day and at
any time, enforceable only
within its judicial district)
Family Court (on custody
of minors, enforceable
within its territorial
jurisdiction, [Sec. 20, AM
No. 03-04-04-SC])
Writ of Amparo (AM No. 07-9-12-SC)
Where the threat or
act/commission or any of its
elements occurred
SC, CA, Sandiganbayan,
RTC
Writ of Habeas Data (AM No. 8-1-16-SC)
RTC Petitioners residence or
where the place the
information is
gathered/collected/stored, at
the petitioners option
SC, CA, Sandiganbayan -
If the action concerns
public data files of
government offices
Change of name (Rule 103)
If judicial - Where the person
applying for the change of
his name resides
RTC
If administrative - a) Local
civil registry where the record
sought to be changed is kept
b) Local civil registry of the
place of residence of
interested party (only if
petitioner migrated to
another place in the
Philippines and it would be
impractical to file in the place
where records sought to be
changed are kept) c)
Philippine consulates (only
for Philippine citizens who
reside in foreign countries)
Local civil registry or
Philippine consulate
Declaration of absence and appointment of their
representative (Rule 107)
Where absentee last resided RTC
Cancellation/Correction of entries in the civil registry
(Rule 108)
If judicial where the
concerned civil registry is
located
RTC
If administrative -
a) Local civil registry where
the record sought to be
changed is kept b) Local civil
registry of the place of
residence of interested party
(only if petitioner migrated to
another place in the
Philippines and it would be
impractical to file in the place
where records sought to be
changed are kept) c)
Philippine consulates (only
for Philippine citizens who
reside in foreign countries)
Local civil registry or
Philippine Consulate
Special Proceedings under various laws and SC
Circulars
a. Petitions under the Family Courts Act (R.A. No. 8369)
1. Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC, March 15, 2003);
2. Rule on Legal Separation (A.M. No. 02-11-11-SC,
March 15, 2003);
3. Rule on Provisional Orders (A.M. No. 02-11-12-SC,
March 15, 2003);
4. Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minor Children (A.M.
No. 03-04-04, April 22, 2003);
5. Summary of Judicial Proceedings under the Family
Code (Arts. 238-253, New Civil Code)
b. Proceedings for protection orders under the Violence
against Women and their Children Act (R.A. No. 9262)
1. Rule on Violence against Women and Children (A.M.
No. 04-10-11, October 19, 2004)
c. Proceedings under the Arbitration Law (R.A. No. 876)
and Alternative Dispute Resolution Act (R.A. No. 9285)
1. Arbitration; court-annexed mediation and judicial
dispute resolution (A.M. No. 01-10-5-SC-PHILJA,
October 16, 2001).
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RULES 73-90
Different modes of settlement of estate of a deceased
person/presumed dead
1. Extrajudicial Settlement of Estate (Section 1, Rule 74);
2. Summary Settlement of Estate of Small Value (Section
2, Rule 74);
3. Partition (Rule 69);
4. Probate of Will (Rule 75 to 79);
5. Petition for Letters of Administration in cases of
Intestacy (Rule 79);
Procedure in settlement proceedings (Judicial)

SECTION 1. WHERE ESTATE OF DECEASED
PERSONS SETTLED
Jurisdiction: It depends upon the gross value of the
estate of the decedent:
1. In Metro Manila MTC: gross value does not exceed
PhP400,000.00, otherwise, RTC;
2. Outside Metro Manila MTC: gross value does not
exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4),
Sec. 33(1), B.P. Blg. 129).
.
Note: Jurisdiction over the subject matter is determined
by the allegations in the petition; (Cadimas v. Carrion,
G.R. No. 180394, September 29, 2008); hence, it is not
the actual gross value of the estate, which is the basis of
jurisdiction but the alleged gross value of the estate.
Venue
1. Inhabitant (Resident) of the Philippines (whether citizen
or alien) Court of the province/city where he resides at
the time of death.
2. Inhabitant (Resident) of Foreign Country Court of any
province wherein he had his estate (Sec. 1, Rule 73).
Residence
Residence means his personal, actual or physical
habitation, his actual residence or place of abode (Fule v.
Court of Appeals, G.R. No. L-40502, November 29, 1976).
Where the proceeding was commenced with a court of
improper venue, as where the decedent was neither a
resident at the time of his death nor had estate therein,
and such objection was seasonably raised in the probate
court, the petition should be dismissed and the
proceedings should be instituted in the proper court
(Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December
28, 1956).
Remedy if venue is improperly laid
General Rule: Ordinary appeal not certiorari or
prohibition.
Exception: If want of jurisdiction appears on the record of
the case (Sec. 1, Rule 73).
The judicial settlement of a decedents estate is a
proceeding in rem.
SETTLEMENT OF ESTATE OF
DECEASED PERSONS
RULE 73
VENUE AND PROCESSES
Petition for Probate of will, if any (Rule 75-76)
Court order fixing the time and place for probate.
Publication of hearing for 3 successive weeks. Notice
shall also be given to the designated/known heirs,
legatees and devisees, and the executor if the one
petitioning for allowance of the will is not the testator.
Issuance of Letters
Testamentary/Administration (A special
administrator may be appointed) (Rules 77-80)
Publication of Notice for Filing Claims
Filing of Claims (Rule 86)
Issuance of Order of Payment or Sale of
Properties
Payment of Claims:
Sale/Mortgage/Encumbrance of estate
properties.
Distribution of remainder, if any
(But this can be made even before payment if
a bond is filed by the heirs).
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Two kinds of settlement
1. Extrajudicial settlement a proceeding where the
decedent had left no will and no debts, and the heirs
adjudicate the estate among themselves without
seeking letters of administration (Sec. 1, Rule 74).
2. Judicial settlement Testate or intestate proceeding
instituted in the country where decedent had his
residence at the time of his death or had estate if a
nonresident (Sec. 2, Rule 74).
a. Summary judicial proceedings (if the value of estate
is below PhP10,000);
b. Regular settlement proceedings
Extent of jurisdiction: Probate courts are courts of
limited jurisdiction. it may only determine and rule upon
issues relating to the settlement of the estate, namely:
(LAD)
1. Liquidation of the estate;
2. Administration of the estate; and
3. Distribution of the estate (Herrera, Special Proceedings
and Special Rules Implementing the Family Courts Act
of 1997, 2005 ed., p. 12).
General Rule: Probate court cannot determine issue of
ownership.
Exceptions:
1. Ownership may be provisionally determined for the
purpose of including property in inventory, without
prejudice to its final determination in a separate action
(Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,
May 7,1987);
2. When all the parties are heirs and they submit the issue
of ownership to the probate court provided that the
rights of third parties are not prejudiced (Bernardo v.
Court of Appeals, G.R. No. L-18148, Feb. 28, 1963);
3. Question is one of collation or advancement (Coca, et
al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31,
1978).
The RTC acting in its general jurisdiction is devoid of
authority to render adjudication and resolve the issue of
advancement of the real property in favor of an heir since
reconveyance and annulment of title with damages is not
the proper vehicle to thresh out said question (Natcher v.
Court of Appeals, G.R. No. 133000, October 2, 2001).
Other questions which the probate court can
determine
1. Who the heirs of the decedent are;
2. The recognition of a natural child;
3. The validity of disinheritance effected by the testator;
4. Status of a woman who claims to be the lawful wife of
the decedent;
5. The validity of a waiver of hereditary rights;
6. The status of each heir;
7. Whether property in inventory is conjugal or exclusive
property of deceased spouse;
8. Matters incidental or collateral to the settlement and
distribution of the estate (Regalado, Remedial Law
Compendium Vol. II, 2008 ed., p. 13).
Exclusionary Rule
General Rule: The court first taking cognizance of the
settlement of the estate of the decedent shall exercise
jurisdiction to the exclusion of all other courts.
The probate court acquires jurisdiction from the moment
the petition for the settlement of estate is filed with said
court. It cannot be divested of such jurisdiction by the
subsequent acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval v. Santiago,
G.R. No. L-1723, May 30, 1949); or by filing another
petition for settlement in a proper court of concurrent
venue (Rodriguez v. De Borja, G.R. No. L-21993, June
21, 1966).
Exception: Estoppel by Laches
Note: Jurisdiction under Rule 73 Sec. 1 does not relate to
jurisdiction per se but to venue. Hence, institution in a
court where the decedent is neither an inhabitant nor had
his estate may be the subject of waiver (Uriarte v. CFI,
G.R. No. L-21938-39, May 29, 1970).
SECTION 2. WHERE THE ESTATE SETTLED UPON
DISSOLUTION OF MARRIAGE
Upon the death of either the husband or the wife, the
partnership affairs must be liquidated in the testate or
intestate proceedings of the deceased husband or wife. If
both have died, liquidation may be made in the testate or
intestate proceedings of either (Bernardo, et. al. v. Court
of Appeals, et. al., G.R. No, L-18148, February 28, 1963).
SECTION 3. PROCESS
The RTC may issue warrants and processes to compel
the attendance of witnesses.
Writ of Execution
General Rule: Probate court cannot issue writs of
execution.
Ratio: Its orders usually refer to the adjudication of claims
against the estate which the executor/administrator may
satisfy without the need of executory process (Regalado,
p.14).
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Exceptions: (CEE)
1. To satisfy the contributive share of the devisees,
legatees and heirs when the latter had entered prior
possession over the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of partition (Sec.
3, Rule 90);
3. To satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule
142).
Under the rule of inclusio unius est exclusio alterius, these
should be the only instances when the probate court can
issue writ of execution (Vda. De Valera, et al., v. Ofilada,
et al., G.R. No. L-27526, Sept. 12, 1974).
SECTION 4. PRESUMPTION OF DEATH
There is no need for an independent action for Declaration
of Presumptive Death for purposes of Succession.
The returning absentees recovery of his estate is subject
to the following conditions:
1. All his debts must have been paid;
2. He shall recover his property in the condition in which it
may be found together with the price of any property
that may have been alienated or the property acquired
therewith;
3. He is not entitled to the fruits of the rent (Art. 392, New
Civil Code).
General Rule: The settlement of the estate of the
decedent should be judicially administered through an
administrator or executor.
Exception:
The heirs may resort to:
1. Extrajudicial settlement of estate (Sec.1);
2. Summary settlement of estates of small value (Sec. 2).
Note: In both exceptional circumstances, an administrator
or executor need not be appointed.
SECTION 1. EXTRAJUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS
Extrajudicial Settlement
Procedure in extrajudicial settlement by agreement
between/among heirs
Requisites:
A. Substantive
1. The decedent left -
a. No will;
b. No debts.
2. The heirs are all of age or the minors are
represented by their judicial or legal representatives
duly authorized for the purpose.
B. Procedural
1. Division of estate must be in a public instrument or
by affidavit of self-adjudication in the case of a sole
heir;
2. Filed with proper Registry of Deeds;
3. Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks;
4. Filing of the bond with the Register of Deeds
equivalent to the value of personal property. (Sec.
1, Rule 74).
Note: The bond is required only when personalty is
involved. If it is a real estate, it shall be subject to a lien in
favor of creditors, heirs or other persons for the full period
of 2 years from such distribution and such lien cannot be
RULE 74
SUMMARY SETTLEMENT OF
ESTATES
Division of estate in public
instrument or affidavit of
adjudication
The public instrument or
affidavit of adjudication must
be filed with the proper
Registry of Deeds
Publication of notice of the
fact of extrajudicial settlement
once a week for 3 consecutive
weeks in a newspaper of
general circulation
Filing of bond equivalent to
the value of personal property
with the proper Registry of
Deeds
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substituted by a bond (Rebong v. Ibaez, G.R. No. L-
1578, September 30, 1947).
The bond is the value of the personal property certified by
the parties under oath and conditioned upon payment of
just claims filed under Sec. 4, Rule 74.
Affidavit of Self Adjudication
An affidavit required by Sec 1 of Rule 74 to be executed
by the sole heir of a deceased person in adjudicating to
himself the entire estate left by the decedent.
Is a public instrument necessary for the validity of an
extra-judicial settlement? No. A private
instrument/document or oral agreement of partition as well
as a compromise agreement entered without previous
authority of the court is valid among the heirs who
participated in the extrajudicial settlement. The
requirement under Sec. 1, Rule 74 that it must be in a
public instrument is not constitutive of the validity but is
merely evidentiary in nature (Hernandez v. Andal, G.R.
No. L-273, March 29, 1947). Under the new Rules, it
would appear that a public instrument is now required for
registration. If the settlement is in a private instrument, it is
believed that the same is still valid and reformation of the
instrument may be compelled (Arts. 1359, et. seq., New
Civil Code).
Extrajudicial Settlement
Summary
Settlement
No court intervention.
Requires summary judicial
adjudication.
Value of the estate is
immaterial.
Gross estate must not
exceed PhP10,000.
Allowed only in intestate
succession.
Allowed in both testate and
intestate
There must be no
outstanding debts of the
estate at the time of
settlement.
It is available even if there
are debts; it is the court
which will make provision
for its payment.
Resorted at the instance
and by agreement of all
heirs.
May be instituted by any
interested party even by a
credit of the estate without
the consent of all heirs.
Amount of bond is equal to
the value of personal
property.
Amount of bond is to be
determined by the court.
Bond is filed with the
Register of Deeds.
Bond is filed with the court.
Note: While the Rules provide that the decedent must not
have left any debts, it is sufficient if any debts he may
have left have been paid at the time the extrajudicial
settlement is entered into (Guico v. Bautista, G.R. No. L-
14921, December 31, 1960).
Disputable presumption that decedent left no debts: If
no creditor files a petition for letters of administration
within 2 years after the death of the decedent it is
presumed that the estate left no debts (Sec. 1, Rule 74).
Note: Section 1, Rule 74 does not preclude the heirs from
instituting administration proceedings even if the estate
has no debts or obligations, if they do not desire to resort,
for good reasons, to an ordinary action for partition
(Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952).
Good reason depends on the circumstances of each
case (Pereira v. CA, et al., G.R. No. 81147, June 20,
1989).
SECTION 2. SUMMARY SETTLEMENT OF ESTATES
OF SMALL VALUE
The gross value of the estate must not exceed
PhP10,000.
In accordance with B.P. Blg. 129, the summary settlement
of estates of small value is within the jurisdiction of the
MTCs.
Important Requirements:
1. Application must contain allegation of gross value of
estate;
2. Date for hearing:
a. Shall be set by court not less than 1 month nor more
than 3 months from date of last publication of notice;
b. Order of hearing published, once a week for 3
consecutive weeks in a newspaper of general
circulation.
3. Notice shall be served upon such interested persons as
the court may direct;
4. Bond in an amount fixed by the court (not value of
personal property) conditioned upon payment of just
claims under Sec. 4.
Procedure in summary settlement of estates of small
value
Application for summary settlement with an
allegation that the gross value of the estate
does not exceed PhP10,000.00
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks in a
newspaper of general circulation (the court may also
order notice to be given to other persons as such
court may direct)
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SECTION 3. BOND TO BE FILED BY DISTRIBUTEES
The amount of bond required under a summary settlement
is determined by the court, unlike in an extrajudicial
settlement where the amount is equal to the value of the
personal property as established by the instrument of
adjudication (Regalado, p. 21).
SECTION 4. LIABILITY OF DISTRIBUTEES AND
ESTATE
When settlement of estates in the courts may be
compelled:
1. If there is an undue deprivation of lawful participation in
the estate;
2. The existence of debts against the estate; or
3. If there is an undue deprivation of lawful participation
payable in money.
Note: The bar against distributees from objecting to an
extrajudicial partition after the expiration of two years is
applicable only:
a. To persons who have participated or taken part or had
notice of the extrajudicial partition, and
b. When all the persons or heirs of the decedent have
taken part in the extrajudicial settlement (Sampio v.
Court of Appeals, G.R. No. L-10474, February 28,
1958).
Is a person who had no knowledge or had not
participated in the extrajudicial settlement bound
thereby by reason of constructive notice of
publication? No. Extrajudicial settlement under Sec. 1 of
Rule 74 is an ex parte proceeding, and the rule plainly
states that persons who do not participate or had no
notice of an extrajudicial settlement will not be bound
thereby, and contemplates a notice that has been sent out
or issued before any deed of settlement or partition is
agreed upon, and not after such agreement has already
been executed. The publication of the settlement does not
constitute constructive notice to the heirs who had no
knowledge or did not take part because the same was
notice after the fact of execution. The requirement of
publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful
participation in the estate (Benatiro v. Heirs of Cuyos,
G.R. No. 161220, July 28, 2008).
Note: The other heirs are also not bound by the
extrajudicial settlement should the Deed of Extrajudicial
Partition or Affidavit of Self-Adjudication be false (Sec. 4 in
relation to Sec. 1).
Remedies of the Aggrieved Parties after Settlement of
the Estate
1. Within 2 years - claim against the bond or the real
estate or both (Sec.4, Rule 74);
2. Rescission in case of preterition of compulsory heir in
partition tainted with bad faith (Article 1104, NCC);
3. Reconveyance of real property;
4. Action to annul a deed of extrajudicial settlement on the
ground of fraud which should be filed within 4 years
from the discovery of fraud;
5. Petition for Relief on the ground of FAME fraud,
accident, mistake, excusable negligence 60 days
after the petitioner learns of the judgment, final order or
other proceeding to be set aside, and not more than 6
months after such judgment or final order was entered
(Rule 38);
6. Reopening by Intervention within anytime before
rendition of judgment, as long as it is within the
reglementary period of 2 years;
7. New action to annul settlement within reglementary
period of 2 years.
An heir deprived of his share may file an action for
reconveyance based on an implied or constructive trust
which prescribes 10 years from the date of registration or
date of issuance of certificate of title or from actual
discovery of fraud if the registration was made in bad faith
(Marquez v. Court of Appeals, G.R. No. 125715,
December 29, 1998).
Where the estate has been summarily settled, the unpaid
creditor may, within 2 years, file a motion in court
wherein such summary settlement was had, for the
payment of his credit.
Hearing to be held not less than 1 month nor
more than 3 months from the date of the last
publication of notice court may direct)
Court to proceed summarily, without appointing
an executor/administrator, and to make orders as
may be necessary, such as:
a) Grant allowance of the will, if any;
b) Determine persons entitled to estate;
c) Pay debts of estate which are due
Filing of the bond fixed by the court
Partition of the estate
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After the lapse of 2 years, an ordinary action may be
instituted against the distributees within the statute of
limitations but not against the bond.
The 2-year lien upon the real property distributed by
extrajudicial or summary settlement shall be annotated on
the title issued to the distributees and after 2 years will be
cancelled by the register of deeds without need of court
order (Land Registration Commission Circular 143 dated
January 28, 1964).
Such lien cannot be discharged nor the annotation be
cancelled within the 2 year period even if the distributees
offer to post a bond to answer for contingent claims from
which lien is established (Rebong v. Ibaez, G.R. No. L-
1578, September 30, 1947).
SECTION 5. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
If on the date of the expiration of the two-year period, the
creditor or heir is:
1. A minor; or
2. Incapacitated; or
3. In prison; or
4. Outside the Philippines.
He may present his claim within one year after such
disability is removed (Sec. 5 Rule 75).
SECTION 1. ALLOWANCE NECESSARY.
CONCLUSIVE AS TO EXECUTION
Nature of probate proceedings
1. In Rem: binding on the whole world (Regalado, p. 31).
2. Mandatory: no will shall pass either real or personal
property unless it is proved and allowed in the proper
court (Sec. 1, Rule 75).
However, a will may be sustained on the basis of Article
1080 of the Civil Code which states that: If the testator
should make a partition of his properties by an act inter
vivos, or by will, such partition shall stand in so far as it
does not prejudice the legitime of the forced heir
(Mang-Oy v. Court of Appeals, G.R. No. L-27421,
September 12, 1986).
3. Imprescriptible because of the public policy to obey
the will of the testator.
4. The doctrine of estoppel does not apply.
The presentation and probate of the will is required by
public policy. It involves public interest (Fernandez v.
Dimagiba, G.R. No. L-23638, October 12, 1967).
SECTION 2. CUSTODIAN OF WILL TO DELIVER
The custodian must deliver the will to the court or to the
executor within 20 days after he learns of the death of the
testator.
SECTION 3. EXECUTOR TO PRESENT WILL AND
ACCEPT OR REFUSE TRUST
The executor, within 20 days after he knows of the
testators death or after he knows that he is named an
executor if he knows it after the testators death, shall:
1. Present the will to the court (unless it has reached the
court in any other manner); and
2. Signify in writing his acceptance or refusal of the trust.
SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT
TO FINE FOR NEGLECT
A fine not exceeding PhP2,000.
SECTION 5. PERSON RETAINING WILL MAY BE
COMMITTED
Probate
The act of proving in a court a document purporting to be
the last will and testament of a deceased person in order
that it may be officially recognized, registered and its
provisions carried out insofar as they are in accordance
with the law (also referred to as allowance of the will)
(Jurado, Comments and Jurisprudence on Succession,
2009, 9th Edition, p. 134).
SECTION 1. WHO MAY PETITION FOR THE
ALLOWANCE OF WILL
1. Executor;
2. Devisee or legatee named in the will;
3. Person interested in the estate (e.g. heirs);
An interested party is one who would be benefited by
the estate, such as an heir, or one who has a claim
against the estate, such as a creditor (Sumilang v.
Ramagosa, G.R. No. L-23135, December 26, 1967).
4. Testator himself during his lifetime;
5. Any creditor - as preparatory step for filing of his claim
therein (Regalado, p.30).
RULE 75
PRODUCTI ON OF WI LL
ALLOWANCE OF WI LL NECESSARY
RULE 76
ALLOWANCE OR DI SALLOWANCE
OF WI LL
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Who may be a party in probate? In general, any person
having a direct and material interest in the will or estate
(Trillana v. Crisostomo, G.R. No. L-3378, August 22,
1951).
SECTION 2. CONTENTS OF PETITION
1. The jurisdictional facts death of the testator and his
residence at the time of death or the province where
estate was left by the decedent who is a non-resident;
2. The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
3. The probable value and character of the property of the
estate;
4. The name of the person for whom letters are prayed;
and
5. The name of the person having custody of the will if it
has not been delivered to the court.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed.
Effect of the probate of a will: It is conclusive as to the
execution and validity of the will (even against the State).
Thus, a criminal case against the forger may not lie after
the will has been probated (Jurado, p. 144).
May Sec. 1, Rule 76 be waived since it is just a
procedural requirement? No because the same
requirement is embodied in Art. 838 of the Civil Code,
which is a substantive law.
Issue in the probate of a will
General Rule: Only determination of the extrinsic validity
not the intrinsic validity or validity of testamentary
dispositions.
Exceptions:
Principle of practical considerations
1. The waste of time, effort, expense plus added anxiety
are the practical considerations that induced the SC to
a belief that we might as well meet head-on the issues
of the validity of the provisions of the will in question
(Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966).
2. Where the entire or all testamentary dispositions are
void and where the defect is apparent on its face (Acain
v. Intermediate Appellate Court, G.R. No. 72706,
October 27, 1987; Nepumuceno v. Court of Appeals,
G.R. No. L-62952, October 9, 1985).
Extrinsic Validity
Means due execution of the will.
Meaning of due execution (FM-VPS)
1. That the will was executed strictly in accordance with
the formalities required by law;
2. That the testator was of sound and disposing mind
when he executed the will;
3. That there was no vitiation of consent through duress,
fear or threats;
4. That it was not procured by undue or improper pressure
or influence on the part of the beneficiary, or some
other person for his benefit;
5. That the signature of the testator is genuine, i.e., it was
not procured through fraud and that the testator
intended that what he executed was his last will and
testament (Art. 839, New Civil Code).
SECTION 3. COURT TO APPOINT TIME FOR PROVING
WILL; NOTICE THEREOF TO BE PUBLISHED
The probate of a will is a proceeding in rem and the
publication provided for by this Rule is a jurisdictional
requirement. The personal service of notice upon the heirs
is a matter of procedural convenience and not a
jurisdictional requisite. (Regalado, p. 31)
If the petition for probate is on the testators own initiative
during his lifetime (Ante Mortem):
1. No publication is necessary (Sec. 3); and
2. Notice shall be made only to the compulsory heirs (Sec.
4).
Note: Three (3) weeks successively is not strictly 21 days.
It is sufficient that publication has been made once a
week successively three times, even if less than twenty-
one days intervened between the first and last publication
(Basa v. Mercado, G.R. No. L-42226, July 26, 1935).
SECTION 4. HEIRS, DEVISEES, LEGATEES, AND
EXECUTORS TO BE NOTIFIED BY MAIL OR
PERSONALLY
Persons to be Given Notice:
1. Designated or known heirs, legatees and devisees; and
2. Executor and co-executor if not the petitioner.
Modes of Notification
1. If by mail: 20 days before hearing
2. If through personal service: 10 days before hearing.
SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT
IN ABSENCE OF CONTEST
At the hearing, compliance of publication and notice must
first be shown before introduction of testimony in support
of the will.
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Evidence required in support of a will
1. Uncontested Will
a. Notarial Wills: Testimony of at least one of the
subscribing witnesses may be allowed, if such
witness testifies that the will was executed as is
required by law (Sec.5).
i. If all subscribing witnesses reside outside the
province deposition is allowed (Sec.7).
ii. If the subscribing witnesses are dead, insane, or
none of them resides in the Philippines The
court may admit testimony of other witnesses to
prove the sanity of the testator, and the due
execution of the will, and as evidence of the
execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing
witnesses or of any of them (Sec. 8).
b. Holographic Wills: the testimony of one witness who
knows the handwriting and signature of the testator.
In the absence thereof and if the court deem it
necessary, expert testimony may be resorted to.
In case of a holographic will, it is not mandatory that
witnesses be first presented before expert testimony
may be resorted to, unlike notarial wills wherein the
attesting witnesses must first be presented or
accounted for (Azaola v. Singson, G.R. No. L-14003,
August 5, 1960). This is so because holographic wills
are not required to be witnessed and the existence of
a qualified witness may be beyond the control or
knowledge of the proponent of the will (Regalado, p.
35).
2. Contested Will
a. Notarial Wills: All subscribing witnesses and the
notary public before whom the will was acknowledged
must be produced and examined (Sec. 11).
However, if any or all the witnesses (i) testify against
the execution of the will, (ii) do not remember
attesting thereto, or (iii) are of doubtful credibility, the
will may be allowed if the court is satisfied from the
testimony of other witnesses and from all the
evidence presented that the will was executed and
attested in the manner required by law (An instance
where a party may impeach his own witness).
b. Holographic Wills: 3 witnesses who know the
handwriting of testator. In the absence thereof and if
the court deem it necessary, testimony of an expert
witness may be resorted to.
However, in Codoy v. Calugay (G.R. No. 123486,
Aug. 12, 1999), the SC ruled that if the holographic
will is contested, 3 witnesses who know the
handwriting and signature of the testator are now
required/mandatory to prove its authenticity and for
its allowance.
General Rule: A holographic will if destroyed cannot be
probated.
Exception: If there exists a Photostatic or Xerox copy
thereof (Gan v. Yap, G.R. No. L-12190, August 30, 1958).
Note: In the case of a contested notarial will, it is the duty
of the petitioner to produce all the available attesting
witnesses and the notary public, but he is not concluded
by the testimony of said witnesses, even if adverse, as the
court may still admit the will to probate on the basis of
other satisfactory evidence (Fernandez v. Tantoco, G.R.
No. 25489, September 8, 1926). This is an exception to
the rule that a party is generally bound by the testimony or
evidence that he presents, because here, unlike ordinary
actions, he has no choice in the evidence as he is duty-
bound to account for all attesting witnesses. It has been
held that the testimony of the notary before whom the will
was acknowledged will prevail over that of the two
attesting witnesses who claim undue execution of the will
(Ramos, et. al. v. Court of Appeals, et. al. G.R. No. L-
40804, January 31, 1978).
SECTION 6. PROOF OF LOST OR DESTROYED WILL.
CERTIFICATE THEREUPON
This section applies to a lost or destroyed notarial will and
not to a holographic will.
Facts which should be proved in order that a lost or
destroyed will may be allowed:
1. That the will has been duly executed by the testator;
2. That the will was in existence when the testator died, or
if it was not, that it has been fraudulently or accidentally
destroyed in the lifetime of the testator without his
knowledge; and
3. The provisions of the will are clearly established by at
least two credible witnesses.
SECTION 7. PROOF WHEN WITNESSES DO NOT
RESIDE IN PROVINCE
SECTION 8. PROOF WHEN WITNESSES DEAD OR
INSANE OR DO NOT RESIDE IN THE PHILIPPINES
SECTION 9. GROUNDS FOR DISALLOWING WILL
Grounds provided for are exclusive: (FIDUS)
1. If not executed and attested as required by law;
(formalities)
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2. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
3. If it was executed under duress, or the influence of fear,
or threats;
4. If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
5. If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto.
Substantial Compliance Rule
If the will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad
faith and fraud is obviated, said will should be admitted to
probate (Art. 809, NCC).
Separate wills which contain essentially the same
provisions and pertain to properties which in all probability
are conjugal in nature, practical considerations dictate
their joint probate (Vda. De Perez v. Tolete, G.R. No.
76714, June 2, 1994).
Separate Wills probated jointly in view of
simultaneous deaths of the spouses testators: A literal
application of the rules should be avoided if they would
only result in the delay in the administration of justice.
What the law expressly prohibits is the making of joint
wills either for testators reciprocal benefit or of 3
rd
person.
Wills of the decedent spouse are essentially similar in
disposition and property; joint probate was allowed (Acain
v. IAC, G.R. No. 72706, October 27,1987).
Law governing forms of wills:
The law in force at the time of the execution of a will (Art.
795, NCC).
SECTION 10. CONTESTANT TO FILE GROUNDS OF
CONTEST
Contestant must:
1. State in writing his grounds for opposing the allowance
of the will; and
2. Serve a copy thereof to petitioner and other interested
parties.
SECTION 11. SUBSCRIBING WITNESSES PRODUCED
OR ACCOUNTED FOR WHERE WILL CONTESTED
SECTION 12. PROOF WHERE TESTATOR PETITIONS
FOR ALLOWANCE OF HOLOGRAPHIC WILL
If there is no contest, the fact that the testator affirms that
the holographic will and the signature are in his own
handwriting shall be sufficient evidence of the
genuineness and due execution thereof.
In case of contest, the burden of proof is on the
contestant.
SECTION 13. CERTIFICATE OF ALLOWANCE
ATTACHED TO PROVED WILL. TO BE RECORDED IN
THE OFFICE OF REGISTER OF DEEDS.
Order for probate is final. Thus, it is appealable.
SECTION 1: WILL PROVED OUTSIDE THE
PHILIPPINES MAY BE PROVED HERE.
It is a requirement that a will which was probated in a
foreign country be re-probated in the Philippines. If the
decedent owns properties in different countries, separate
proceedings must be had to cover the same.
SECTION 2: NOTICE OF HEARING FOR ALLOWANCE.
What should be filed:
Petition for allowance accompanied with:
1. Authenticated copy of the will
2. Authenticated decree of the allowance thereof.
The court will then fix a time and place for hearing and
cause notice thereof to be given.
With regard to notices, the will probated abroad should be
treated as if it were an original will or a will presented for
probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and
notice by mail or personally to the known heirs, legatees,
and devisees of the testator resident in the Philippines
and to the executor, if he is not the petitioner, are required
(Salud Teodoro Vda. De Perez v. Hon. Zotico A. Tolete,
G.R. No. 76714, June 2, 1994).
Matters to be proven during a re-probate proceeding:
1. That the testator was domiciled in a foreign country;
2. That the will has been admitted to probate in such
country;
3. That the foreign court was, under the laws of said
foreign country, a probate court with jurisdiction over the
proceedings;
4. The law on probate procedure in said foreign country
proof of compliance therewith; and
RULE 77
ALLOWANCE OF WI LL PROVED
OUTSI DE OF PHI LI PPI NES AND
ADMI NI STRATI ON OF ESTATE
THEREUNDER
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5. The legal requirements in said foreign country for the
valid execution of the will (De Perez v. Tolete, supra).
Effects of the allowance of a will under Rule 77:
1. The will shall be treated as if originally proved and
allowed in Philippine courts;
2. Letters testamentary or administration with a will
annexed shall extend to all estates in the Philippines;
3. After payment of just debts and expenses of
administration, the residue of the estate shall be
disposed of as provided by law in cases of estates in
the Philippines belonging to persons who are
inhabitants of another state or country.
Note: In the absence of proof of the foreign law, it is
presumed that it is the same as that in the Philippines
(Doctrine of Processual Presumption).
The venue for the petition for re-probate is the same as
that provided for in Rule 73.
A will of a foreigner executed abroad can be probated in
the Philippines without need of being probated abroad.
Art. 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in
accordance with the formalities prescribed by the law of
the place where he resides, or according to the formalities
observed in his country. Reprobate of a will already
probated and allowed in a foreign country is different from
that probate where the will is presented for the first time
before a competent court. Reprobate is specifically
governed by Rule 77. In reprobate, the local court
acknowledges as binding the findings of the foreign
probate court provided its jurisdiction over the matter can
be established. If the instituted heirs do not have the
means to go abroad for the probate of the will, it is as
good as depriving them outright of their inheritance (In Re:
Palaganas, G.R. No. 169114, 26 January 2011).
Who can administer the estate?
1. Executor the one named by the testator in his will for
the administration of his property after his death.
2. Administrator, regular or special the one appointed
by the Court in accordance with the Rules or governing
statutes to administer and settle the intestate estate
(Rule 80).
3. Administrator with a will annexed the one
appointed by the court in cases when, although there is
a will, the will does not appoint any executor, or if
appointed, said person is either incapacitated or
unwilling to serve as such (Rule 79, Section 1).
Who may serve as an executor or administrator? Any
competent person may serve as executor or administrator.
SECTION 1. WHO ARE INCOMPETENT TO SERVE AS
EXECUTORS OR ADMINISTRATORS
1. A minor;
2. A non-resident;
3. One who in the opinion of the court is unfit to exercise
the duties of the trust by reason of:
a. Drunkenness when the habits of drink are carried
so far as to cloud the brain and weaken their respect
for honesty and integrity; The drunkenness
contemplated by this statute, undoubtedly, is that
excessive, inveterate and continued use of
intoxicants, to such an extent as to render the subject
of the habit as unsafe against to entrust with the care
of property or the transaction of business (Herrera, p.
78).
b. Improvidence means the want of care and
foresight in the management of property which would
be likely to render the estate and effects of the
intestate unsafe and liable to be lost or diminished in
value (Blacks Law Dictionary, 5
th
ed., p.682).
c. Want of understanding amounts to lack of
intelligence such as would or might subject one to
sinister influence or coercion against the general
interest of the estate (Herrera, p.80).
d. Want of integrity integrity is synonymous to
probity, honesty and uprightness in business relations
with others. The accusation should be certain and
grave in its nature (Herrera, p.80).
e. Conviction for an offense involving moral
turpitude an act of baseness, vileness or depravity
in the private and social duties which a man owes his
fellow men, to society in general, contrary to the
accepted and customary rule of right and duty
between man and woman or conduct contrary to
justice, honesty, modesty or good morals (Zari v.
Flores, A.M. No. (2170-MC) P-1356 November 21,
1979).
4. The executor of an executor cannot administer the
estate of the first testator (Sec. 2).
Executor and Administrator; Distinguished
Executor Administrator
Nominated by the testator
and appointed by court.
Appointed by the court in
case the testator did not
appoint an executor or if
RULE 78
LETTERS TESTAMENTARY AND OF
ADMI NI STRATI ON, WHEN AND TO
WHOM ISSUED
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Executor Administrator
the executor refused
appointment (administrator
with a will annexed) or if the
will was disallowed or if a
person did not make a will
(intestate succession).
Must present will to the
court within 20 days after
he knows of the death of
testator or after he knew
that he was appointed as
executor (if he obtained
such knowledge after death
of testator), unless the will
has reached the court in
any manner.
No such duty.
Testator may provide that
he may serve without a
bond (but court may direct
him to give a bond
conditioned only to pay
debts).
Required unless exempted
by law
Compensation may be
provided for by the testator
in the will, otherwise Sec. 7,
Rule 85 will be followed.
Compensation is governed
by Sec. 7, Rule 85.
SECTION 2. EXECUTOR OF EXECUTOR NOT TO
ADMINISTER ESTATE
SECTION 3. MARRIED WOMEN MAY SERVE
SECTION 4. LETTERS TESTAMENTARY ISSUED
WHEN WILL ALLOWED
Testamentary Privilege
The right given by law to a person to dispose of his
property when he dies.
Letters Testamentary
An authority issued to an executor named in the will to
administer the estate (Festin, p. 46).
Letters of Administration
An authority issued by the court to a competent person to
administer the estate of the deceased who died intestate
(Festin, p. 46).
Letters of Administration with a Will Annexed
An authority issued by the court to a competent person to
administer the estate of the deceased if the executor
named in the will refused to accept the office or if the
person name is incompetent.
SECTION 5. WHERE SOME CO-EXECUTORS
DISQUALIFIED, OTHERS MAY ACT
SECTION 6. WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED
Order of preference in granting letters of
administration
1. The surviving husband or wife or the next of kin, or both
in the discretion of the court, or to such person as such
surviving spouse or next of kin, requests to have
appointed, if competent and willing to serve (surviving
spouse or next of kin or their nominee);
Next of Kin
Those persons who are entitled by law to receive the
decedents property (Regalado, p. 46).
2. If the surviving spouse or the next of kin or the person
selected by them be incompetent or unwilling to serve,
or if the surviving spouse or next of kin neglects for 30
days after the death of the decedent to apply for
administration by them or their nominee, any one or
more of the principal creditors, if competent and willing
to serve;
However, neglect of such persons to apply for letters
administration for 30 days after death is not sufficient to
exclude the widow from the administration of the estate
of her husband. There must be a very strong case to
justify the exclusion of the widow from the
administration (Herrera, p. 84).
3. If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select (stranger).
Note: As a general rule, the court cannot set aside the
order of preference under Sec. 6 Rule 78.
Exception: In case the persons who have the preferential
right to be appointed under the rule are not competent or
are unwilling to serve, administration or they neglect to
apply for letters of administration for 30 days after the
decedents death, the letters may be granted to such
other person as the court may appoint.
The order of appointment of regular administrator is final
and appealable.
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Basis for the preferential right: The underlying
assumption is that those who will reap the benefits 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 higher interest
and most influential motive to administer the estate
correctly (Gonzales v. Aguinaldo, G.R. No. 74769
September 28, 1990).
Note: Co-administrators may be appointed for the benefit
of the estate and those interested therein (Matute v. Court
of Appeals, G.R. No. 26751, January 31, 1969).
Scope or limits of administration: The general rule is
that administration extends only to the assets of a
decedent found within the state or country where it was
granted, so that an administrator appointed in one state or
country has no power over the property in another state or
country (Leon v. Manufacturers Life Insurance Co., G.R.
No. L-3677, November 29, 1951).
Note: A party indebted to the decedents estate cannot
compatibly perform the duties of an administrator and
should not be appointed as such (Lim v. Diaz-Millarez,
G.R. No. L-17633, October 19, 1966). Where such fact of
indebtedness was only subsequently discovered after the
administrator had been duly appointed, he should not be
removed, absent any other lawful ground (Dalisay, etc. v.
Consolacion, etc., G.R. No. L-44702, July 30, 1979).
SECTION 1. OPPOSITION TO ISSUANCE OF
LETTERS TESTAMENTARY. SIMULTANEOUS
PETITION FOR ADMINISTRATION
The main issue is the determination of the person who is
rightfully entitled to administration.
Persons to oppose the issuance of letters: Any person
interested in the will.
In order to be a party, a person must have material and
direct, and not one that is only indirect or contingent,
interest (Saguinsun v. Lindayag, G.R. No. L-17759,
December 17, 1962).
The opposition may be accompanied by a Petition for the
issuance of Letters of Administration with the will
annexed.
SECTION 2. CONTENTS OF A PETITION FOR
LETTERS OF ADMINISTRATION
1. The jurisdictional facts;
2. The names, ages, residences of heirs and the names
and ages of the creditors;
3. The probable value and character of the estate; and
4. The name of the person for whom letters are prayed for.
No defect in the petition shall render void the issuance of
the letters of administration.
SECTION 3. COURT TO SET TIME FOR HEARING.
NOTICE THEREOF
Publication for 3 weeks and notice to heirs, creditors and
other persons believed to have an interest in the estate is
required before hearing.
Note: Sec. 3 of this Rule is jurisdictional. Where no notice
as required by this section has been given to persons
believed to have an interest in the estate of the deceased
person, the proceeding for the settlement of the estate is
void and should be annulled (Eusebio v. Valmores, G.R.
No. L-7019, May 31, 1955).
SECTION 4. OPPOSITION TO PETITION FOR
ADMINISTRATION
Grounds for Opposition:
1. Incompetence;
2. Preferential right of the heir under Sec. 6, Rule 78.
SECTION 5. HEARING AND ORDER FOR LETTERS
TO ISSUE
Letters of Administration shall issue if it is proven
that:
1. Notice as required in Sec. 3 was given; and
2. The decedent left no will; or there is no competent and
willing executor.
SECTION 6. WHEN LETTERS OF ADMINISTRATION
GRANTED TO ANY APPLICANT
Letters can be granted to any person or any other
applicant even if other competent persons are present if
the latter fail to claim their letters when notified by the
court.
RULE 79
OPPOSI NG ISSUANCE OF LETTERS
TESTAMENTARY, PETI TI ON AND
CONTEST FOR LETTERS OF
ADMI NI STRATI ON
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SECTION 1. APPOINTMENT OF SPECIAL
ADMINISTRATOR
Special Administrator
A representative of the decedent appointed by the probate
court to care for and preserve his estate until an executor
or general administrator is appointed (Fule v. CA, G.R.
No. L-40502, November 29, 1976).
Ancillary Administrator
A person appointed by the court in a state where the
descendant was not domiciled to manage the assets and
liabilities and to oversee the distribution of decedents
estate in that state. Such an administrator usually works
as an adjunct to the executor or administrator appointed in
the state where the decedent was domiciled (See Perkins
v. Benguet Cosolidated, Inc., Gr No. L-23145, November
29,1968).
When may a probate court appoint a special
administrator?
1. Delay in granting of letters by any cause including
appeal in the probate of the will;
2. Executor is a claimant of the estate that he represents
(Section 8, Rule 86).
Note: In the second instance, the administrator shall have
the same powers as that of a general administrator but
only insofar as the claim of the executor is concerned.
Order of Appointment (Discretionary)
The preference accorded by Sec. 6 of Rule 78 of the
Rules of Court to a surviving spouse refers to the
appointment of a regular administrator, not to that of
special administrator, and that the order appointing the
latter lies within the discretion of the probate court, and is
not appealable (Pijuan v. De Gurrea, G.R. No. L-
21917, November 29, 1966).
Regular Administrator Special Administrator
Order of Appointment is
final and is appealable.
Order of Appointment is
interlocutory and is not
appealable.
One of the obligations is to
pay the debts of the estate.
Cannot pay debts of the
estate.
Appointed when decedent
died intestate or did not
appoint an executor in the
will or will was disallowed.
Appointed when there is
delay in granting letters
testamentary or
administration or when the
executor is a claimant of
the estate.
SECTION 2. POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR
1. Possess and charge of the goods, chattels, rights,
credits, and estate of the deceased and preserve the
same;
2. Commence and maintain suit for the estate;
3. Sell only:
a. Perishable property; and
b. Other property ordered sold by the court;
4. Pay debts only as may be ordered by the court.
The special administrator also has the duty to submit an
inventory and to render an accounting of his
administration as required by the terms of his bond (Sec
4, Rule 81).
SECTION 3. WHEN POWERS OF SPECIAL
ADMINISTRATOR CEASE. TRANSFER OF EFFECTS.
PENDING SUITS
When does the power of a special administrator
cease? After the questions causing the delay are
resolved and letters are granted to regular executor or
administrator.
Is an appointment of a special administrator
appealable? No, as expressly provided for in Sec. 1, Rule
109.
The only remedy against the appointment of a special
administrator is Certiorari under Rule 65. Certiorari,
however, requires nothing less than grave abuse of
discretion (Tan v. Gedorio, Jr., G.R. No. 166520, 14
March 2008). However, there must be a Temporary
Restraining Order or Injunction Order to stop the Special
Administrator from assuming the position (Sec. 7, Rule
65) .
An appointment of a regular administrator is appealable
because it is a final order (De Borja v. Tan, G.R. No. L-
6476, November 18, 1955). There are important duties
devolving on a regular administrator which a special
administrator cannot perform, and there are many actions
to be taken by the court which could not be accomplished
before a regular administrator is appointed (Reynoso v.
Santiago, G.R. No. L-3039, December 29, 1949).
RULE 80
SPECI AL ADMI NI STRATOR
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Note: A special administrator is appointed only for a
limited time and for a specific purpose. Naturally, because
of the temporary and special character of his appointment,
it was deemed by the law not advisable for any party to
appeal from said temporary appointment (De Borja v. Tan,
supra).
While a special administrator may commence and
maintain suits under Sec. 2, he cannot be sued by a
creditor for the payment of the debts of the deceased (De
Gala v. Gonzales, et al., G.R. No. L-30289, March 26,
1929). Such suit must await the appointment of a regular
administrator.
SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE
OF LETTERS. AMOUNT. CONDITIONS.
When bond is filed: Before an executor or administrator
enters upon the execution of his trust.
Amount: To be fixed by the court.
Purpose: It is intended as an indemnity to the creditors,
the heirs and the estate. It shall be accountable for any
breach of duty that may be done by the administrator or
executor. The liability may be enforced by motion or in a
separate civil action (Festin, p.56).
Conditions of the bonds:
1. Make within 3 months a true and complete inventory of
the property of the deceased which came to his
knowledge and possession;
2. Administer the estate and pay and discharge all debts,
legacies and charges, including dividends declared by
the court from the proceeds;
3. Render a true and just account within one year and
when required by the court;
4. Perform all orders of the court.
Administrators Bond Statutory Bond Conditions
prescribed by statute forms part of bond agreement.
Terms and effectivity of bond do not depend on payment
of premium and does not expire until the administration is
closed. As long as the probate court retains jurisdiction of
the estate, the bond contemplates a continuing liability
(Luzon Surety v. Quebrar, G.R. No. L-40517, January 31,
1984).
SECTION 2. BOND OF EXECUTOR WHERE DIRECTED
IN WILL WHEN FURTHER BOND REQUIRED
Even if the testator has directed in his will that his
executor serve without a bond, the court may still require
him to file a bond conditioned only to pay the debts of the
testator.
SECTION 3. BONDS OF JOINT EXECUTORS AND
ADMINISTRATORS
SECTION 4. BOND OF SPECIAL ADMINISTRATOR
Conditions of the bonds
1. Make and return a true inventory;
2. Render accounting when required by court; and
3. Deliver the estate to the person appointed executor or
administrator or other authorized persons.
As long as the probate court retains jurisdiction of the
estate, the bond contemplates a continuing liability (Luzon
Surety v. Quebrar, Gr No. L-40517, January 31, 1984).




SECTION 1. ADMINISTRATION REVOKED IF WILL
DISCOVERED. PROCEEDINGS THEREUPON
When letters of administration revoked and powers
cease: When the decedents will is allowed and proved by
the court after the issuance of letters of administration.
Duty of administrator upon revocation of the letters
1. Surrender the letters to the court; and
2. Render his account within such time as the court may
direct.
Whether the intestate proceeding already commenced
should be discontinued and a new proceeding under a
separate number and title should be constituted is entirely
a matter of form and lies within the sound discretion of the
court (Reynoso v. Santiago, G.R. No. L-3039, December
29, 1949).
Note: Testate proceedings take precedence over intestate
proceedings for the same estate.
First court intestate; second court testate: As a
general rule, the court with which the petition is first filed
RULE 81
BONDS OF EXECUTORS AND
ADMI NI STRATORS
RULE 82
REVOCATI ON OF ADMI NI STRATI ON,
DEATH, RESI GNATI ON AND
REMOVAL OF EXECUTORS AND
ADMI NI STRATORS
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must take cognizance of the settlement of the intestate
estate. However, if it learns thereafter that another court
has before it a petition for the probate of the decedents
will, it may hold the petition before it in abeyance and
defer to the second court where the probate proceedings
are pending and if the will is admitted to probate therein, it
will definitely decline to take cognizance (Cuenco v. Court
of Appeals, G.R. No. L-24742, Oct. 26, 1973).
Will discovered; administrator already appointed: If
during the pendency of intestate proceedings, a will of the
decedent is discovered, proceedings for the probate of the
will shall replace the intestate proceedings even if an
administrator had already been appointed therein (Cuenco
v. Court of Appeals, supra). However, the discovery of a
document purporting to be the last will and testament of a
deceased, after the appointment of an administrator of the
estate of the latter, upon the assumption that he or she
had died intestate, does not ipso facto nullify the letters of
administration already issued or even authorize the
revocation thereof, until the alleged will has been proved
and allowed by the court (Advincula v. Teodoro, G.R. No.
L-9282, May 31, 1956).
SECTION 2. COURT MAY REMOVE OR ACCEPT
RESIGNATION OF EXECUTOR OR ADMINISTRATOR.
PROCEEDINGS UPON DEATH, RESIGNATION OR
REMOVAL
Grounds for removal of executor or administrator
(RSPAI)
1. Neglect to perform an order or judgment of the court or
a duty expressly provided by these rules;
2. Absconding; or
3. Insanity or incapability or unsuitability to discharge the
trust;
4. Neglect to render accounts (within 1 year and when
required by the court);
5. Neglect to settle estate according to these rules.
Other Valid Grounds for Removal of an Administrator:
1. Adverse interest of an administrator to that of the estate
(Garcia v. Vasquez, G.R. No. L-26884, April 30, 1970).
2. Physical inability and consequent unsuitability to
manage the estate (De Borja v. Tan, G.R. No. L-6476,
November 18,, 1955).
3. False representation by an administrator in securing his
appointment (Cobarrubias v. Dizon, G.R. No. L-225,
February 26, 1946).
The order of removal is appealable (Borromeo v.
Borromeo, G.R. No. L-6363, September 15, 1955).
Note: Grounds are not exclusive.
The position of the administrator is one of confidence and
when the court finds that the administrator is not entitled
to such confidence, it is justified in withdrawing the
appointment and giving no valid efficacy thereto
(Cobarrubias v. Dizon, supra).
Examples of valid removal of administrator
a. Disbursement of funds of the estate without judicial
approval;
b. False representation by an administrator in securing his
appointment;
c. Holding an interest adverse to that of the estate or by
his conduct shows unfitness to discharge the trust;
d. Physical inability and consequent unsuitability to
manage the estate.
Degree of diligence required: An administrator is
required to exercise reasonable diligence and act in entire
good faith in the performance of that trust.
SECTION 3. ACTS BEFORE REVOCATION,
RESIGNATION OR REMOVAL TO BE VALID
Lawful acts of an administrator or executor before the
revocation, resignation, or removal are valid.
SECTION 4. POWERS OF NEW EXECUTOR OR
ADMINISTRATOR. RENEWAL OF LICENSE TO SELL
REAL ESTATE
Power of the new executor or administrator
1. Collect and settle the estate not administered;
2. Prosecute or defend actions commenced by or against
the former executor or administrator; and
3. Have execution on judgments recovered in the name of
former executor or administrator.
Authority to sell previously given to the former executor or
administrator may be renewed without notice or hearing.
SECTION 1. INVENTORY AND APPRAISAL TO BE
RETURNED WITHIN THREE MONTHS
Inventory and appraisal must be made within 3 months
from the grant of letters testamentary or of administration.
The three-month period is not mandatory. The fact that an
inventory was filed after the three-month period would not
RULE 83
INVENTORY AND APPRAI SAL
PROVI SI ON FOR SUPPORT OF
FAMI LY
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deprive the probate court of jurisdiction to approve it.
However, an administrators unexplained delay in filing the
inventory may be a ground for his removal (Sebial v.
Sebial, G.R. No. L-23419, June 27, 1975).
Approval of an inventory is not a conclusive determination
of what assets constituted the decedents estate and of
the valuation thereof. Such determination is only
provisional and a prima facie finding of the issue of
ownership.
Property claimed by third persons may be included in the
inventory as part of the assets of the estate and the
probate court may order such inclusion, but such order of
the probate court is only a prima facie determination and
does not preclude the claimants from maintaining an
ordinary civil action for the determination of title (Gonzales
v. CFI Manila, G.R. No. L-34395, May 19, 1981).
SECTION 2. CERTAIN ARTICLES NOT TO BE
INVENTORIED
1. Wearing apparel of the surviving spouse and minor
children;
2. Marriage bed and bedding;
3. Provisions and other articles as will necessarily be
consumed in the subsistence of the family of the
deceased.
SECTION 3. ALLOWANCE TO WIDOW AND FAMILY
Allowance
Refers to the monetary advances which are subject to
collation and are likewise deductible from their share in
the estate of the decedent.
Persons entitled to allowance during proceedings
1. Legitimate surviving spouse (Nepomuceno v. Court of
Appeals, G.R. No. L-62952, October 9, 1985); and
2. Children of the decedent.
Note: According to Art. 188 of the Civil Code, the
children need not be minors or incapacitated to be entitled
to allowance (Santero v. CFI of Cavite, G.R. No. 61700-
03, Sept. 24, 1987).
Grandchildren are not entitled to allowance under Rule 83
(Ruiz v. Court of Appeals, G.R. No. 118671, January 29,
1996).
When liabilities exceed the assets of the estate, his widow
and children are not entitled to support pending the
liquidation of the intestate estate, on the ground that such
support, having the character of an advance payment, is
to be deducted from the respective share of each heir
during distribution (Wagner v. Moore, G.R. No. L-25842,
March 18, 1927).


SECTION 1. EXECUTOR OR ADMINISTRATOR TO
HAVE ACCESS TO PARTNERSHIP BOOKS AND
PROPERTY. HOW RIGHT ENFORCED
SECTION 2. EXECUTOR OR ADMINISTRATOR TO
KEEP BUILDINGS IN REPAIR
SECTION 3. EXECUTOR OR ADMINISTRATOR TO
RETAIN WHOLE ESTATE TO PAY DEBTS AND TO
ADMINISTER ESTATE NOT WILLED
Powers of the executor or administrator of the estate
(BERIP)
1. To have access to, and examine and take copies of
books and papers relating to the partnership in case of
a deceased partner;
2. To examine and make invoices of the property
belonging to the partnership in case of a deceased
partner;
3. To maintain in tenantable repair, houses and other
structures and fences and to deliver the same in such
repair to the heirs or devisees when directed so to do
by the court;
4. To make improvements on the properties under
administration with the necessary court approval except
for necessary repairs (Herrera, p. 121);
5. To possess and manage the estate when necessary:
a. For the payment of debts; and
b. For payment of expenses of administration.
Some restrictions on the power of an administrator or
executor (cannot ABS-LCP)
1. Cannot acquire by purchase, even at public or judicial
auction, either in person or mediation of another, the
property under administration Art. 1491, NCC);
2. Cannot borrow money without authority of the court;
3. Cannot speculate with fund under administration (Sec.
2, Rule 85);
4. Cannot lease the property for more than one year (Art.
1878, NCC);
A view is held, however, that the aforesaid provision of
Art. 1878 of the Civil Code on agency should not apply
to leases entered into by an executor or administrator,
under the theory that they represent not only the estate
RULE 84
GENERAL POWERS AND DUTI ES OF
EXECUTORS AND ADMI NI STRATORS
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but also the parties interested therein, that they are
required to file a bond and that their acts are subject to
specific provisions of law and orders of the probate
court, which circumstances are not true with respect to
agents (Regalado, p. 65).
5. Cannot continue the business of the deceased unless
authorized by the court (Sec. 1, Rule 84);
6. Cannot profit by the increase or decrease in the value
of the property under administration (Sec. 2, Rule 85).
Note: The right of an executor or administrator to the
possession and management of the real and personal
properties of the deceased is not absolute and can only
be exercised so long as it is necessary for the payment of
the debts and expenses of the administration (Estate of
Hilario Ruiz v. Court of Appeals, G.R. No. 118671,
January 29, 1996).
SECTION 1. EXECUTOR OR ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND INCOME
General Rule: The executor or administrator is
accountable for the whole estate of the deceased.
Exception: He is not accountable for properties which
never came to his possession.
Exception to the Exception: When through
untruthfulness to the trust or his own fault or for lack of
necessary action, the executor or administrator failed to
recover part of the estate which came to his knowledge.
SECTION 2. NOT TO PROFIT BY INCREASE OR LOSE
BY DECREASE IN VALUE
Administrator or executor shall not profit by the increase of
the estate nor be liable for any decrease which the estate,
without his fault, might have sustained.
SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS
DUE ESTATE
The executor or administrator is not accountable if debt
remains uncollected without his fault.
SECTION 4. ACCOUNTABLE FOR INCOME FROM
REALTY USED BY HIM
If executor or administrator uses or occupies real estate
under administration, he must account for it.
SECTION 5. ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
When accountable:
1. If an executor or administrator:
a. Neglects or unreasonably delays to raise money, by
collecting the debts or selling the real or personal
estate of the deceased; or
b. Neglects to pay over the money he has in his hands;
and
2. The value of the estate is lessened; or
3. Unnecessary cost or interest accrues; or
4. The persons interested suffer loss.
SECTION 6. WHEN ALLOWED MONEY PAID AS
COSTS
SECTION 7. WHAT EXPENSES AND FEES ALLOWED
EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE
FOR SERVICES AS ATTORNEY. COMPENSATION
PROVIDED BY WILL CONTROLS UNLESS
RENOUNCED
Expenses of Administration
Those necessary for the management of the property, for
protecting it against destruction or deterioration, and
possibly for the production of fruits.
Compensation if there is no provision in the will
1. PhP4.00 a day for the time actually and necessarily
employed; or
2. Commission.
3. A greater sum may be allowed if:
a. The estate is large;
b. The settlement has been attended with great
difficulty;
c. The settlement has required a high degree of
capacity of the executor or administrator.
Attorneys fees: An administrator who is a lawyer may
not recover attorneys fees from the estate; his
compensation is fixed by the rule but such compensation
is in the nature of executors or administrators
commissions, and never as attorneys fees. A lawyer of an
administrator or executor may not charge the estate for
his fees, but rather, he must charge his client (the
executor or the administrator).
Where the administrator is himself the counsel for the
heirs, it is the latter who must pay therefor.
When a lawyer has rendered legal services to the
executor or administrator to assist him in the execution of
RULE 85
ACCOUNTABI LI TY AND
COMPENSATI ON OF EXECUTORS
AND ADMI NI STRATORS
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his trust, his attorneys fees may be allowed as expenses
of administration. The estate, is, however, not directly
liable for his fees, the liability for the payment resting
primarily on the executor or administrator. If the
administrator had paid the fees, he would be entitled to
reimbursement from the estate (Occena v. Marquez, G.R.
No. L-27396, September 30, 1974).
Procedure for collection of attorneys fees
1. Request the administrator to make payment and file an
action against him in his personal capacity and not as
administrator should he fail to pay; or
2. Petition in the testate or intestate proceeding asking the
court, after notice to all persons interested, to allow his
claim and direct the administrator to pay it as an
expense of administration (Herrera, p.123).
SECTION 8. WHEN EXECUTOR OR ADMINISTRATOR
TO RENDER ACCOUNT
General Rule: Within one year from the time of receiving
letters testamentary or letters of administration.
Exception: An extension of time is allowed by the court
for presenting claims against, or paying the debts of the
estate, or for disposing of the estate; and he shall render
such further accounts as the court may require until the
estate is wholly settled.
The fact that the final accounts had been approved does
not divest the court of jurisdiction to require supplemental
accounting for, aside from the initial accounting, the Rules
provide that he shall render such further accounts as the
court may require until the estate is wholly settled.
(Tumang v. Laguio, G.R. No. L-50277, February 14,
1980).
SECTION 9. EXAMINATIONS ON OATH WITH
RESPECT TO ACCOUNT
Examination may be dispensed with when:
1. No objection is made to the allowance of the account;
and
2. Its correctness is satisfactorily established by
competent proof.
The heirs, legatees, distributees and creditors have the
same privilege of being examined.
SECTION 10. ACCOUNT TO BE SETTLED ON NOTICE
SECTION 11. SURETY ON BOND MAY BE PARTY TO
ACCOUNTING
SECTION 1. NOTICE TO CREDITORS TO BE ISSUED
BY COURT
Money Claims
Claims for money, debt or interest thereon upon a liability
contracted by the decedent before his death (Festin, p.
75).
When may the court issue notices to creditors to file
their claims? Immediately after granting letters
testamentary or of administration.
Claims arising after his death cannot be presented except
for:
1. Funeral expenses; and
2. Expenses of the last sickness of the decedent.
Claims for taxes (inheritance and estate) due and
assessed after the death of the decedent need not be
presented in the form of a claim. The court in the exercise
of its administrative control over the executor or
administrator may direct the latter to pay such taxes
(Pineda v. CFI of Tayabas, G.R. No. L-30921, February
16, 1929).
The heirs, even after distribution, are liable for inheritance
and estate taxes (Government of the Philippine Islands v.
Pamintuan, G.R. No. L-33139, October 11, 1930).
SECTION 2. TIME WITHIN WHICH CLAIMS SHALL BE
FILED
Statute of Non-Claims
The period fixed by the rule for the filing of the claims
against the estate.
Reason for the rule: For the speedy settlement of the
affairs of the deceased and the early delivery of the
property to the distributees, legatees or heirs.
Where to File Claims: All money claims must be
entertained by Settlement Court regardless of amount.
(Sec. 1) In other words, B.P. Blg. 129 is not applicable.
When to file claims
General Rule: Within the time fixed in the notice which
shall not be more than 12 months nor less than 6 months
RULE 86
CLAI MS AGAI NST ESTATE
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after the date of the first publication. Otherwise, they are
barred forever.
Even if the testator acknowledged the debt in his will and
instructed the executor to pay the debt, the statute of non-
claims must still be complied with; otherwise the claim
may also be barred.
Exception: Belated claims
Belated Claims
Claims not filed within the original period fixed by the
court. On application of a creditor who has failed to file his
claim within the time previously limited, at any time before
an order of distribution is entered, the court may, for
cause shown and on such terms as are equitable, allow
such claim to be filed within a time not exceeding 1 month
from the order allowing belated claims.
Note: The statute of non-claims supersedes the statute of
limitations insofar as the debts of deceased persons are
concerned because if a creditor fails to file his claim within
the time fixed by the court in the notice, then the claim is
barred forever. However, both statute of non-claims and
statute of limitations must concur in order for a creditor to
collect; thus, a creditor cannot claim, even if within the
statute of non-claims, if his claim has already prescribed
under the statute of limitations.
However, a creditor barred by the Statute of Non-claims
may file a claim as a counterclaim in any suit that the
executor or administrator may bring against such creditor
(Sec 5).
Good excuse for late filing
The pendency of the action before the regular courts was
cited as a good excuse for the tardiness of the claim
(Echaus v. Blanco, G.R. No. L-30453, December 4, 1989).
SECTION 3. PUBLICATION OF NOTICE TO
CREDITORS.
Publication of the notice for 3 successive weeks in a
newspaper of general circulation in the province and post
the same in 4 public places in the province and in 2 public
places in the municipality where the decedent last resided.
SECTION 4. FILING COPY OF PRINTED NOTICE.
10 days after publication and posting.
Note: A notice to creditors to file their claims is not proper
if only a special administrator has been appointed as a
special administrator is generally not empowered to pay
the debts of the deceased (Sec. 2, Rule 80) and his bond,
unlike that of a regular administrator, is not conditioned
upon the payment of such debts (Regalado, p. 74).
SECTION 5. CLAIMS WHICH MUST BE FILED UNDER
NOTICE. IF NOT FILED, BARRED; EXCEPTIONS.
Claims referred to under this section refer to claims for the
recovery of money and which are not secured by a lien
against the property of the estate (Olave v. Canlas, G.R.
No. L-12709, February 28, 1962).
If the claim is secured; apply Sec. 7 of this Rule.
Claims which should be filed under the Statute of
Non-claims
1. Money claims, debts incurred by deceased during his
lifetime arising from contract:
a. Express or implied;
b. Due or not due;
c. Absolute or contingent.
2. Claims for funeral expenses;
3. For the last illness of the decedent;
4. Judgment for money against decedent.
Note: The enumeration is exclusive (Festin, p. 75).
A money claim arising from a crime of quasi-delict
committed by the decedent is not included in the concept
of claims which have to be filed under this Rule but should
be the subject of an action against the executor or
administrator (Sec. 1, Rule 87) or against the heirs
(Belamala v. Polinar, G.R. No. L- 24098, November 18,
1967).
Unpaid taxes are not covered by the statute of non- claims
as these are monetary obligations created by law (Vera, et
al. v. Fernandez, et al., G.R. No. L- 31364, March 30,
1979).
Absolute Claim
Such a claim as, if contested between living persons,
would be proper subject of immediate legal action and
would supply a basis of a judgment for a sum certain.
Contingent Claim
A conditional claim or claim that is subject to the
happening of a future uncertain event.
It has reference to the uncertainty of liability, and not to
uncertainty of collection (Gaskell v. Tan Sit, G.R. No.
18405, September 23, 1922).
Claims not yet due or contingent may be approved at their
present value.
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A deficiency judgment is a contingent claim and therefore,
must be filed with the probate court where the settlement
of the deceased is pending, within the period fixed for the
filing of claims (First National City Bank of New York v.
Cheng Tan, G.R. No. L-14234, February 28, 1962).
Claims Extinguished by
Death
Actions which Survive
Personal to either of the
parties and is
extinguished by death
Claim is not extinguished
by death but shall be
prosecuted as a money
claim against the estate
of the deceased
Examples: legal
separation, annulment of
marriage, declaration of
nullity of marriage
Example: contractual
money claim
Where the defendant dies while the action for a sum of
money is pending against him in the Court of Appeals, he
shall be substituted therein by his legal representative but
the final judgment of the appellate court shall not be
enforceable by a writ of execution but should be filed in
the probate court as a money claim in accordance with
Sec. 5 of Rule 86 (Paredes, et al. v. Moya, G.R. No. L-
38051, December 26, 1973). If none of the heirs is willing
to be substituted defendant, the creditor has to procure
the appointment of an executor/administrator (Sec. 16,
Rule 3).
If a final judgment had already been rendered against the
decedent prior to his death, but without levy on execution
having been effected against his property, such judgment
must also be filed as a claim against the estate in the
manner provided for by this Rule. If levy has already been
made before his death, execution shall proceed (Sec. 7
[c], Rule 39).
SECTION 6. SOLIDARY OBLIGATION OF DECEDENT
Claim should be filed against decedent as if he were the
only debtor without prejudice on the part of the estate to
recover contribution from the other debtor.
Joint obligation of decedent
The claim must be confined to the portion belonging to the
decedent.
SECTION 7. MORTGAGE DEBT DUE FROM ESTATE
Creditor holding a claim secured by a mortgage or
other collateral security
Alternative remedies: (AFR)
1. Abandon or waive the security and prosecute his claim
against the estate and share in the general distribution
of the assets of the estate;
2. Foreclose his mortgage or realize upon his security by
action in court making the executor or administrator a
party defendant and if there is judgment for deficiency,
he may file a claim (contingent) against the estate
within the statute of non-claims;
3. Rely solely on his mortgage and foreclose (judicially or
extrajudicially) the same at anytime within the period
of the statute of limitations but he cannot be admitted as
creditor and shall not receive in the distribution of the
other assets of the estate.
Note: The mortgage creditor can avail of only one of the
three remedies and if he fails to recover under that
remedy he can not avail of any of the other two remedies
(Bachrach Motor Co., Inc., v. Icarangal, G.R. No. L-45350,
May 29,1939).
The rule reserves a right to the executor or administrator
of an estate to redeem a mortgaged or pledged property
of a decedent which the mortgage or pledgee has opted
to foreclose, instead of filing a money claim with the
probate court, under said Section 7 of Rule 86. While the
redemption is subject to the approval of the probate court,
the exercise of the right is discretionary upon the said
executor or administrator and may not be ordered by the
probate court upon its own motion (Manalansan v.
Castaneda, G.R. No. L-43607, June 27, 1978).
SECTION 8. CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST AN ESTATE
This is one of the instances where a special administrator
is appointed. The special administrator will have authority
to act only with respect to the claim of the regular
administrator or the executor (Regalado, p. 83).
SECTION 9. HOW TO FILE A CLAIM. CONTENTS
THEREOF. NOTICE TO EXECUTOR OR
ADMINISTRATOR
How to file a claim:
1. Deliver the claim with the necessary vouchers to the
clerk of court;
2. Serve a copy thereof on the executor or administrator;
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3. If the claim is due, it must be supported by an affidavit
stating the amount due and the fact that there has been
no offsets;
4. If the claim is not due or contingent, it must be
accompanied by an affidavit stating the particulars
thereof.
SECTION 10. ANSWER OF EXECUTOR OR
ADMINISTRATOR. OFFSETS
Executor shall file his answer to the claim within 15 days
after service of a copy of the claim.
The executor or administrator may interpose any
counterclaim in offset of a claim against the estate. Said
counterclaim is regarded as a compulsory counterclaim as
the failure to file the same shall bar the claim forever.
SECTION 11. DISPOSITION OF ADMITTED CLAIM
The heir, legatee or devisee may oppose the claim
admitted by the executor or administrator.
SECTION 12. TRIAL OF CONTESTED CLAIM
The court may refer the claim to a commissioner.
SECTION 13. JUDGMENT APPEALABLE
Judgment against the executor and administrator shall not
create any lien upon the property of the estate or does not
constitute a specific lien which may be registered on such
property.
Judgment of a probate court approving or disapproving a
claim is appealable.
Note: The mode of appeal is record on appeal and must
be filed within 30 days from notice of judgment.
SECTION 14. COSTS
SECTION 1. ACTIONS WHICH MAY AND WHICH MAY
NOT BE BROUGHT AGAINST EXECUTOR AND
ADMINISTRATOR
Actions which may be commenced directly against the
executor or administrator:
1. Recovery of real or personal property or any interest
therein from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages for any injury to person or
property, real or personal (tortuous acts).
These are actions that survive the death of the decedent.
An action for revival of money judgment may be filed
against the administrator to preempt prescription of
judgment (Romualdez v. Tiglao, G.R. No. L-51151, July
24, 1981).
Rule 87, Sec. 1 Rule 86, Sec. 5
Actions that may be
commenced directly
against the executor and
administrator
Actions that may be
commenced against the
estate of the deceased
Recovery of real/ personal
property (or any interest
therein) from the estate;
Enforcement of a lien
thereon;
Action to recover damages
arising from tort.
Money claims, debts
incurred by the deceased
during his lifetime arising
from contract;
Claims for funeral
expenses or for the last
illness of the decedent;
Judgment for money
against decedent.
SECTION 2. EXECUTOR OR ADMINISTRATOR MAY
BRING OR DEFEND ACTIONS WHICH SURVIVE
SECTION 3. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
Before distribution is made or before any residue is
known, the heirs and devisees have no cause of action
against the executor or administrator for recovery of the
property left by the decedent.
General Rule: The heirs have no legal standing to sue for
the recovery of property of the estate during the pendency
of administration proceedings.
Exceptions:
1. If the executor or administrator is unwilling or refuses to
bring suit;
2. When the administrator is alleged to have participated
in the act complained of and he is made a party
defendant;
3. When there is no appointed administrator (see Rioferio,
et al. v. Court of Appeals, G.R. No. 129008, January 13,
2004).
RULE 87
ACTI ONS BY AND AGAI NST
EXECUTORS AND
ADMI NI STRATORS
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SECTION 4. EXECUTOR OR ADMINISTRATOR MAY
COMPOUND WITH DEBTOR
With the approval of the court, an executor or
administrator may compound with the debtor of the
deceased for a debt due, and may give a discharge of
such debt on receiving a just dividend of the estate of the
debtor.
SECTION 5. MORTGAGE DUE ESTATE MAY BE
FORECLOSED
Note: There is no need for a special authority from the
court for the administrator or executor to bring an action
for foreclosure on behalf of the estate (Calimbas v.
Paguio, G.R. No. L-22197, December 2, 1924).
SECTION 6. PROCEEDINGS WHEN PROPERTY
CONCEALED, EMBEZZLED, OR FRAUDULENTLY
CONVEYED
The court may cite any person suspected of having
concealed, embezzled, or conveyed away any of the
money, goods, or chattels of the deceased, or having in
his possession or knowledge any deed, contract, bond, or
other writing which contains evidence of or tends to
disclose the right, title, interest, or claim of the deceased
to real or personal estate, or the last will and testament of
the deceased, to appear before it and be examined under
oath; if such person refuses to appear, or to answer on
such examination or such interrogatories, the court may
punish him for contempt, and may commit him to prison.
The interrogatories put to any such person, and his
answers thereto, shall be in writing and filed with the
clerks office.
Purpose: To elicit information or to secure evidence from
those persons suspected of having possession or
knowledge of property or will of the deceased, or of having
concealed, embezzled or conveyed away any properties
of the deceased (Herrera, p. 171).
SECTION 7. PERSON ENTRUSTED WITH ESTATE
COMPELLED TO RENDER ACCOUNT
SECTION 8. EMBEZZLEMENT BEFORE LETTERS
ISSUED
The responsible person shall be liable to an action in favor
of the executor or administrator of the estate for double
the value of the property sold, embezzled, or alienated, to
be recovered for the benefit of the estate.
SECTION 9. PROPERTY FRAUDULENTLY CONVEYED
BY DECEASED MAY BE RECOVERED. WHEN
EXECUTOR OR ADMINISTRATOR MUST BRING
ACTION
This provision applies when there is a deficiency of assets
in the hands of the executor or administrator for the
payment of the debts and expenses for administration.
The executor or administrator may, on his own initiative or
on option of the creditors and as directed by the court,
institute an action for the recovery of said property, but the
court may direct the creditors to defray part of the costs
and expenses of the suit since said action is for their own
benefit (Regalado, p. 93).
SECTION 10. WHEN CREDITOR MAY BRING ACTION.
LIEN FOR COSTS
Requisites Before Action may be filed by Creditors:
(D-FAN LaBaN)
1. There is a deficiency of assets in the hands of an
executor or administrator for the payment of debts and
expenses of administration;
2. The deceased in his lifetime had made or attempted to
make a fraudulent conveyance of his property or had so
conveyed such property that by law the conveyance
would be void as against his creditors;
3. The subject of the attempted conveyance would be
liable to attachment in his lifetime;
4. The executor or administrator has shown no desire to
file action or failed to institute the same within a
reasonable time;
5. Leave is granted by the court to the creditor to file the
action;
6. A bond is filed by the creditor;
7. The action by the creditor is in the name of the executor
or administrator.
Note: The last three requisites are unnecessary where the
grantee is the executor or administrator himself, in which
event, the action should be in the name of all the creditors
(Herrera, p. 175).

SECTION 1. DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
A writ of execution is not the proper procedure to satisfy
debts. The court must order the sale or mortgage of the
properties of decedent, the proceeds of which will satisfy
RULE 88
PAYMENT OF THE DEBTS OF THE
ESTATE
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the debts and expenses (Aldamiz v. Judge of CFI of
Mindoro, G.R. No. L-2360, December 29, 1949).
Is execution a proper remedy to satisfy an approved
claim? No, because:
1. Payment approving a claim does not create a lien upon
a property of the estate;
2. Special procedure is for the court to order the sale to
satisfy the claim.
General Rule: Payment of the debts of the estate must be
taken in the following order of preference:
1. From the portion or property designated in the will,
2. From the personal property, and
3. From the real property.
Exception: The court, on petition of interested parties,
may modify such order of disposition.
SECTION 2. PART OF ESTATE FROM WHICH DEBT
PAID WHEN PROVISION MADE BY WILL
If the testator makes a provision in his will or designates
the estate to be appropriated for the payment of his debts
that will be followed.
But if it is not sufficient, such part of the estate as is not
disposed of by will, if any, shall be appropriated for that
purpose.
SECTION 3. PERSONALTY FIRST CHARGEABLE FOR
DEBTS, THEN REALTY
Two instances when realty is liable for debts and
expenses
1. When the personal estate of the decedent is not
sufficient for that purpose;
2. Where the sale of such personalty would be to the
detriment of the participants of the estate.
SECTION 4. ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS
If the court is satisfied that the contingent claim duly filed
is valid, it may order the executor or administrator to retain
in his hands a sufficient part of the estate to pay a portion
equal to the dividend of the creditors.
Requisites (FAV):
1. Contingent claim is duly filed;
2. The claim has become absolute; and
3. Court is satisfied that the claim is valid.
SECTION 5. HOW CONTINGENT CLAIM BECOMING
ABSOLUTE IN TWO YEARS ALLOWED AND PAID
1. If such contingent claim becomes absolute and is
presented to the court as an absolute claim within two
years from the time allowed for the presentation of
claims, it will be paid in the same manner as the other
absolute claims.
2. If the contingent claim matures after the expiration of
the two years, the creditors may sue the distributees,
who are liable in proportion to the shares in the estate
respectively received by them (Jaucian v. Querol, G.R.
No. L-11307, October 5, 1918).
It has been ruled that the only instance wherein a creditor
can file an action against a distributee of the debtors
assets is under Sec. 5, Rule 88. The contingent claims
must first have been established and allowed in the
probate court before the creditors can file an action
directly against the distributees (De Bautista v. De
Guzman, G.R. No. L-28298, November 25, 1983).
SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES
WHERE DEVISEES, LEGATEES, OR HEIRS HAVE
BEEN IN POSSESSION
SECTION 7. ORDER OF PAYMENT IF ESTATE
INSOLVENT
If estate is insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of
the Civil Code (Concurrence and Preference of Credits)
must apply.
SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION
TO CLAIMS
SECTION 9. ESTATE OF INSOLVENT NONRESIDENT,
HOW DISPOSED OF
In case administration is taken in the Philippines of the
estate of a person who was at the time of his death an
inhabitant of another country, and who died insolvent, his
estate in the Philippines shall be so disposed of that his
creditors in and outside the Philippines may receive an
equal share, in proportion to their respective credits.
SECTION 10. WHEN AND HOW CLAIM PROVED
OUTSIDE THE PHILIPPINES AGAINST INSOLVENT
RESIDENTS ESTATE PAID
Claims proven outside the Philippines where the executor
had knowledge and opportunity to contest its allowance
therein may be added to the list of claims in the
Philippines against the estate of an insolvent resident and
the estate will be distributed equally among those
creditors.
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Principle of reciprocity: The benefits of Sections 9 and
10 cannot be extended to the creditors in another country
if the property of such deceased person there found is not
equally apportioned to the creditors residing in the
Philippines.
SECTION 11. ORDER FOR PAYMENT OF DEBTS
SECTION 12. ORDERS RELATING TO PAYMENT OF
DEBTS WHERE APPEAL IS TAKEN.
The court may order the payment of the debts or may
order the distribution among the creditors whose claims
are definitely allowed, leaving in the hands of the executor
or administrator sufficient assets to pay the claim disputed
and appealed.
SECTION 13. WHEN SUBSEQUENT DISTRIBUTION
OF ASSETS ORDERED
Conditions:
1. Whole of the debts are not paid;
2. Whole assets are not distributed; or
3. Other assets afterwards come to the hands of the
executor or administrator.
SECTION 14. CREDITORS TO BE PAID IN
ACCORDANCE WITH TERMS OF ORDER
SECTION 15. TIME FOR PAYING DEBTS AND
LEGACIES FIXED, OR EXTENDED AFTER NOTICE,
WITHIN WHAT PERIODS
Shall not exceed 1 year in the first instance.
But court may extend period on application of executor or
administrator and after hearing and notice on the following
conditions:
1. The extension must not exceed 6 months for single
extension;
2. The whole period allowed to the original executor or
administrator shall not exceed 2 years.
Note: The provision is directory and extensions of the
period may be granted by the court taking into account the
circumstances attending the distribution of the estate
(Regalado, p. 96).
SECTION 16. SUCCESSOR OF DEAD EXECUTOR OR
ADMINISTRATOR MAY HAVE TIME EXTENDED ON
NOTICE WITHIN A CERTAIN PERIOD
Successor of deceased executor or administrator may be
given an extension not to exceed 6 months.


SECTION 1. ORDER OF SALE OF PERSONALTY
The court may order the whole or part of the personal
estate to be sold if necessary:
1. To pay debts and expenses of administration;
2. To pay legacies; or
3. To cover expenses for the preservation of the estate.
SECTION 2. WHEN COURT MAY AUTHORIZE SALE,
MORTGAGE, OR OTHER ENCUMBRANCE OF
REALTY TO PAY DEBTS AND LEGACIES THOUGH
PERSONALTY NOT EXHAUSTED
1. If personal estate is not sufficient to pay debts,
expenses of administration and legacies; or
2. If the sale of personal estate may injure the business or
other interests of those interested in the estate; and
3. If the testator has not made sufficient provision for
payment of such debts, expenses and legacies;
4. If the deceased was in his lifetime under contract,
binding in law to deed real property to beneficiary
(Section 8);
5. If the deceased during his lifetime held real property in
trust for another person (Section 9);
Requisites:
1. Application of executor/administrator;
2. Written notice to heirs, devisees and legatees; and
3. Hearing.
Note: Assets in the hands of executor/administrator will
not be reduced to prevent a creditor from receiving his full
debt or diminish his dividends.
Notice is mandatory: Without notice and hearing, the
sale, mortgage or encumbrance is void.
Ratio: The reason behind this requirement is that the
heirs are the presumptive owners. Since they succeed to
all the rights and obligation of the deceased from the
moment of the latters death, they are the persons directly
affected by the sale or mortgage and therefore cannot be
deprived of the property, except in the manner provided
by law (Maneclang v. Baun, G.R. No. L-27876, April 22,
1992).
RULE 89
SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT
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SECTION 3. PERSONS INTERESTED MAY PREVENT
SUCH SALE, ETC., BY GIVING BOND
If the opposition to the sale is based on the fact that the
oppositor claims title to the property to be sold, the court
will hold in abeyance the authority to sell such property
until the issue of ownership has been settled in an
ordinary action, since the probate court generally has no
jurisdiction to resolve issues of ownership in the
administration proceedings (Pio Barreto Realty Dev., Inc.
v. Court of Appeals, et al., G.R. Nos. 62431-33, August
31, 1984).
Conditions of bond: To pay the debts, expenses of
administration and legacies within such time as the court
directs.
SECTION 4. WHEN COURT MAY AUTHORIZE SALE
OF ESTATE AS BENEFICIAL TO INTERESTED
PERSONS. DISPOSAL OF PROCEEDS
The court may authorize the sale of whole or part of the
estate if it appears beneficial to the heirs, devisees,
legatees, and other interested persons.
The proceeds shall be assigned to the persons entitled to
the estate in the proper proportions.
SECTION 5. WHEN COURT MAY AUTHORIZE SALE,
MORTGAGE OR OTHER ENCUMBRANCE OF ESTATE
TO PAY DEBTS AND LEGACIES IN OTHER
COUNTRIES
When it appears from records and proceedings of a
probate court of another country that the estate of the
deceased in foreign country is not sufficient to pay debts
and expenses.
SECTION 6. WHEN COURT MAY AUTHORIZE SALE,
MORTGAGE OR OTHER ENCUMBRANCE OF REALTY
ACQUIRED ON EXECUTION OR FORECLOSURE
SECTION 7. REGULATIONS FOR GRANTING
AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE
ENCUMBER ESTATE
Application for authority to sell, mortgage or encumber
property of the estate may be denied by the court if:
1. The disposition is not for any of the reasons specified
by the rules; or
2. Under Section 3 Rule 89, any person interested in the
estate gives a bond conditioned to pay the debts,
expenses of administration and legacies.
In case of sale, may there be payment in installment?
As a general rule no because one of the duties of an
executor or administrator is to settle the debts of the
estate; thus, there is a need for immediate cash. The
exception is when the court so authorizes (Sec. 15, Rule
88).
SECTION 8. WHEN COURT MAY AUTHORIZE
CONVEYANCE OF REALTY WHICH DECEASED
CONTRACTED TO CONVEY. NOTICE. EFFECT OF
DEED
SECTION 9. WHEN COURT MAY AUTHORIZE
CONVEYANCE OF LANDS WHICH DECEASED HELD
IN TRUST
Liquidation
The determination of all assets of the estate and payment
of all debts and expenses
SECTION 1. WHEN ORDER FOR DISTRIBUTION OF
RESIDUE MADE
General Rule: An order of distribution shall be made after
payment of all debts, funeral expenses, expenses for
administration, allowance of the widow and inheritance tax
is made.
Exception: If the distributees or any of them gives a bond
conditioned for the payment of said obligation, the order of
distribution may be made even before payments of all
debts, etc.
In these proceedings, the court shall:
1. Collate;
2. Determine heirs; and
3. Determine the share of each heir.
A separate action for the declaration of heirs is not
necessary.
Included in the jurisdiction of the probate court to make a
declaration of heirs is the power to entertain the question
whether or not a person is acknowledged natural child of
decedent (Conde v. Abaya, G.R. No. 4275, March 23,
1909), the validity of disinheritance effected by the
testator (Hilado v. Ponce de Leon, G.R. No. 8020-R,
October 22, 1953), and the status of a woman who claims
to be the lawful wife of the decedent (Torres v. Javier,
G.R. No. L-10560, March 24, 1916). However, the
adoption decree cannot be assailed collaterally in
settlement proceedings (Santos v. Aranzanso, G.R. No. L-
26940, August 21, 1982).
RULE 90
DI STRI BUTI ON AND PARTI TI ON OF
THE ESTATE
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Declaration of Heirs
The probate court has the power to entertain the question
whether or not a person is an acknowledged natural child
of the decedent. Thus, an action for compulsory
recognition of a natural child may be instituted and
decided in the proceeding for the settlement of the estate
of the ancestor. But an adoption decree cannot be
assailed in the settlement of the estate of the ancestor
(Herrera, p.210).
When is title vested? From the finality of the order of
distribution.
Orders that determine who the heirs are and their
distributive shares are appealable. If not appealed within
the reglementary period, they become final (Imperial v.
Munoz, G.R. No. L-30787, August 29, 1974).
Note: The probate court loses jurisdiction over the
settlement proceedings only upon payment of all debts
and expenses of the obligor and delivery of the entire
estate to all the heirs (Guilas v. Judge of CFI of
Pampanga, G.R. No. L-26695, January 31, 1972) and/or
persons entitled thereto.
Conditions precedent to be complied with for the
issuance of an order of distribution
1. Showing that the executor, administrator or person
interested in the estate applied for it; and
2. The requirements as to notice and hearing upon such
application have been fulfilled.
Prohibition against interference by other courts: In the
interest of orderly procedure and to avoid confusing and
conflicting dispositions of a decedents estate, a court
should not interfere with probate proceedings pending in a
co-equal court (Herrera, p. 215).
Remedy of an heir who has not received his share:
1. File a motion with the probate court for delivery to him
of his share; or
2. If the estate proceedings have been closed, file a
motion for reopening of the proceeding, within the
prescriptive period.
Note: The court acquires jurisdiction over all persons
interested, through the publication of the notice prescribed
and any order that may be entered is binding against all of
them (Manalo v. Paredes, G.R. No. 24168, September 22,
1925). It was ruled that a final order of distribution of the
estate of a deceased person vests the title to the land of
the estate in the distributes; and that the only instance
where 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, the better practice to secure relief is reopening
of the same case by proper motion within the
reglementary period (Del Rosario Vda. De Alberto v. Court
of Appeals, G.R. No. L-29759, May 18, 1989).
Writ of Execution
General Rule: Probate court cannot issue writs of
execution.
Rationale: Its orders usually refer to the adjudication of
claims against the estate which the executor/administrator
may satisfy without the need of executory process
(Herrera, p. 222).
Exceptions: (CEE)
1. To satisfy the contributive share of the devisees,
legatees and heirs when the latter had entered prior
possession over the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of partition (Sec.
3, Rule 90);
3. To satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule
142).
SECTION 2. QUESTIONS AS TO ADVANCEMENT TO
BE DETERMINED
SECTION 3. BY WHOM EXPENSES OF PARTITION
PAID
1. By the executor or administrator if he has sufficient
effects in his hands and when equitable and not
inconsistent with the testators intention; otherwise,
2. By the parties in proportion to their respective shares or
interest in the premises.
Note: This is one of the instances where a writ of
execution may be issued.
SECTION 4. RECORDING THE ORDER OF PARTITION
OF ESTATE
SECTION 1. WHEN AND BY WHOM PETITION FILED
Escheat
The proceeding whereby the real and personal property of
a deceased person in the Philippines, who dies without
leaving any will (or if the will was not allowed, hence,
RULE 91
ESCHEATS
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intestacy) and without any legal heirs, becomes the
property of the State upon his death.
Nature of escheat proceedings: Escheat is not an
ordinary civil action but a special proceeding that should
be commenced not by complaint but by petition (Municipal
Council of San Pedro, Laguna v. Colegio de San Jose,
G.R. No. L-45460, February 25, 1938).
Three instances of escheats
1. When a person dies intestate leaving no heir but
leaving property in the Philippines (Section 1);
2. Reversion Proceedings Sale in violation of the
Constitutional provision;
This shall be governed by Rule 91. However, the action
must be instituted in the province where the land lies in
whole or in part.
Note: Reversion will not be allowed even if the original
buyer was an alien, if later on the title to the property
was transferred by succession to the buyers heirs who
are qualified parties, i.e. Philippine citizens (see
Republic v. Registry of Deeds of Roxas City, G.R. No.
158230, 16 July 2008).
3. Unclaimed Balances Act (dormant accounts for 10
years shall be escheated).
Escheat under the Unclaimed Balances Acts must be
filed in the RTC of the place where the dormant
deposits are found.
What is the basis of the states right to receive
property in escheat? Order of succession under the Civil
Code, the state is the last heir of the decedent.
Who is the real party in interest? In all actions for the
reversion to the Government of lands of the public domain
or improvements thereon, the Republic of the Philippines
is the real party in interest. The action shall be instituted
by the Solicitor General or the officer acting in his stead, in
behalf of the Republic of the Philippines (Luis B. Manese,
et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January
29, 2009).
Where to file:
Resident RTC of last residence.
Non-Resident RTC of the place where his estate is
located.
Requisites for filing of petition:
1. That a person died intestate;
2. That he left no heirs or persons by law entitled to the
same; and
3. The deceased left properties.
SECTION 2. ORDER FOR HEARING
If the petition is sufficient in form and substance the court
shall:
1. Make an order of hearing hearing shall not be more
than 6 months after entry of order;
2. Direct the publication of a copy of the order at least
once a week for 6 consecutive weeks.
Remedy of respondent: When the petition does not state
facts which entitle the petitioner to the remedy prayed for,
the respondent may file a Motion to Dismiss the petition
(Herrera, p.227).
SECTION 3. HEARING AND JUDGMENT
Requisites:
1. Publication of the order;
2. Person died intestate;
3. He is seized of real/personal property in the Philippines;
4. He left no heir or person entitled to such property; and
5. There is no sufficient cause to the contrary.
To whom the property escheated will be assigned:
1. If personal property to the municipality or city where
he last resided;
2. If real property to the municipality or city where the
property is situated;
3. If deceased never resided in the Philippines to the
municipality or city where the property may be found.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be
used (Sec. 3, Rule 91).
The right to escheat may be waived expressly or impliedly
(Herrera, p.229).
SECTION 4. WHEN AND BY WHOM CLAIM TO
ESTATE FILED
Who may file a claim on the escheated property: Any
devisee, legatee, heir, widow/er, or other person entitled
thereto.
When to File: Within 5 years from date of judgment,
otherwise it will be barred forever.
Rationale: To encourage would-be claimants to be
punctual in asserting their claims (Festin, p.103).
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SECTION 5. OTHER ACTIONS FOR ESCHEATS
Period of filing claim: Within 5 years from the date of
judgment.
Note: Under Art. 1014 of the Civil Code, the 5-year period
is reckoned from the date the property was delivered to
the state and further provides that if the property had been
sold, the municipality or city shall be accountable only for
such part of the proceeds as may not have been lawfully
spent.
By whom: A person with interest.
Proceedings in escheat cannot be converted into
settlement of the estate. For the distribution of the estate
of the decedent to be instituted, the proper petitions must
be presented and the proceedings should comply with the
requirements of the Rule. An escheat court does not have
the power to order or proceed with the distribution of the
estate of a decedent in escheat proceedings and
adjudicate the properties to the oppositors (Municipality of
Magalloon, Negros Occ. v. Ignatius Henry Bezore, G.R.
No. L- 14157, October 26, 1960).
Guardianship of minors is now governed by the Rule on
Guardianship of Minors (A.M. No. 03-02-05-SC) which
took effect on May 1, 2003 while guardianship of
incompetents who are not minors is still governed by the
provisions of the Rules of Court on Guardianship (Rule 92
to Rule 97) (Sec. 27, A.M. No. 03-02-05-SC).
Guardianship
The power of protective authority given by law and
imposed in an individual who is free and in enjoyment of
his rights over one whose weakness on account of his age
or other infirmity renders him unable to protect himself
(Herrera, p. 235).
Basis: Parens patriae
Purpose: To safeguard the right and interests of minors
and incompetent persons.
Guardian
A person in whom the law has entrusted the custody and
control of the person or estate or both of an infant, insane
or other person incapable of managing his own affairs
(Herrera, p. 235).
Note: The court, in guardianship proceedings, is solely
concerned with the wards custody and proper
administration of his properties. Conflicts regarding
ownership or title in the hands of a guardian, in his
capacity as such should be litigated in a separate
proceeding (Festin, p.126).
In guardianship proceedings, the court cannot actually
order the delivery of the wards property found to be
embezzled, concealed or conveyed except when the title
of the ward to the same is clear and indisputable. Absent
the exception, the recovery of such property must be
made in a separate proceeding (Cui v. Piccio, G.R. No. L-
5131, July 31, 1952).
Kinds of Guardians
A. According to scope:
1. Guardian of the person one who has been lawfully
invested with the care of the person of the minor;
2. Guardian of the property one appointed to have
the management of the estate of a minor or
incompetent;
3. General guardian one appointed to have the care
and custody of the person and of all the property of
the ward (Herrera, p. 237).
B. According to constitution:
1. Legal guardian without need of judicial
appointment;
2. Guardian ad litem appointed by courts of justice to
prosecute or defend a minor, insane or person
declared to be incompetent, in an action in court.
3. J udicial gurdian appointed in pursuance to law, as
guardian for insane persons, prodigals, minors, etc.
(Herrera, p. 237).
Courts with jurisdiction
1. Regional Trial Courts B.P. Blg. 129 provides that
RTCs have jurisdiction over actions and special
proceedings falling within the exclusive original
jurisdiction of the Juvenile and Domestic Relations
Court (Herrera, p. 238). RTC has jurisdiction over
proceedings on guardianship of incompetents.
2. Family Courts R.A. No. 8369 otherwise known as
Family Courts Act of 1997 vested the Family Courts
with exclusive original jurisdiction on guardianship of
minors (Herrera, p. 238).
GENERAL GUARDI ANS AND
GUARDI ANSHI P
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Procedure for Guardianship for Incompetent Persons
who are not Minors
SECTION 1. WHERE TO INSTITUTE PROCEEDINGS
Jurisdiction:
Resident RTC of his residence
Non-Resident RTC of the place where his property is
located.
SECTION 2. MEANING OF THE WORD
INCOMPETENT
Incompetent includes: (CLeP DUN)
1. Those suffering from penalty of civil interdiction;
2. Hospitalized lepers;
3. Prodigals;
Note: A prodigal is synonymous to a spendthrift or a
person who by excessive drinking, gaming, idleness or
debauchery of any kind shall so spend, waste or lessen
his estate as to expose himself or his family to want or
suffering or expose the town to charge or expense for
the support of himself or his family (Cyclopedic Law
Dictionary, 811).
4. Deaf and dumb who are unable to read and write;
5. Those of unsound mind though they may have lucid
intervals;
6. Persons 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.
SECTION 3. TRANSFER OF VENUE
SECTION 1. WHO MAY PETITION FOR
APPOINTMENT OF GUARDIAN FOR RESIDENT
(AFOD)
1. Any relative;
2. Friend; or
3. Other person on behalf of the resident incompetent
who has no parents or lawful guardian; or
4. The Director of Health in favor of an insane person who
should be hospitalized or in favor of an isolated leper.
SECTION 2. CONTENTS OF PETITION
1. The jurisdictional facts;
2. The incompetency rendering the appointment
necessary or convenient;
3. The names, ages, and residences of the relatives of the
incompetent, and of the persons having him in their
care;
4. The probable value and character of his estate; and
5. The name of the person for whom letters of
guardianship are prayed.
SECTION 3. COURT TO SET TIME FOR HEARING.
NOTICE THEREOF
To whom notice served:
1. Persons mentioned in the petition residing in the
Philippines;
2. The incompetent.
There is no requirement for publication, only notice
except in case of a nonresident incompetent.
RULE 92
VENUE
RULE 93
APPOI NTMENT OF GUARDI ANS
Petition
for the Appointment of a
Guardian
Court Order
fixing the hearing of the
petition
Notice
of the hearing
Hearing and Appointment
of the guardian
Service of Judgment
on the Local Civil
Registrar
Filing of Bond
by the guardian
Issuance
of Letters of Guardianship
Termination
of guardianship
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However, service of notice upon the persons mentioned in
the petition, including the incompetent who is not a minor,
is mandatory and jurisdictional.
If the person is insane, service of notice upon the Director
of the Hospital where he is hospitalized is sufficient.
SECTION 4. OPPOSITION TO PETITION
Must be in writing; need not be verified
Grounds:
1. Competency of alleged incompetent;
2. Unsuitability of the person for whom letters are prayed.
If the interested person is a creditor and mortgagee of the
estate of the minor, he cannot be appointed guardian of
the person and property of the latter. No man can serve
two masters (Garchitorena v. Sotelo, G.R. No. L-47867,
November 13, 1942).
SECTION 5. HEARING AND ORDER FOR LETTERS TO
ISSUE
At the hearing:
1. The alleged incompetent must be present if able to
attend;
2. It must be shown that the required notice has been
given.
SECTION 6. WHEN AND HOW GUARDIAN FOR NON-
RESIDENT APPOINTED, NOTICE
Any relative, friend or anyone interested in the estate of a
person liable to be put under guardianship may file a
petition for guardianship over the property of such person.
Notice shall be given through publication or otherwise.
Ancillary guardianship
Ancillary guardianship refers to the guardianship in a state
other than that in which guardianship is originally granted
(Herrera, p. 276).
SECTION 7. PARENTS AS GUARDIANS
This provision may be deemed to have been modified by
the provisions of the Family Code on Guardianship
particularly Articles 225 and 220 (Herrera, p. 278).
SECTION 8. SERVICE OF JUDGMENT
Civil Registrar of the place where the minor or
incompetent resides or where the property is situated shall
be served with a copy of the judgment.
SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE
OF LETTERS. AMOUNT. CONDITIONS
Before an appointed guardian enters upon the execution
of his trust, he shall give a bond.
Conditions: (IFAP)
1. To make and return to the court, within 3 months, a true
and complete inventory of all the estate of his ward
which shall come to his possession or knowledge or to
the possession or knowledge of any other person for
him;
2. To faithfully execute the duties of his trust, to manage
and dispose of the estate according to these rules for
the best interests of the ward, and to provide for the
proper care, custody, and education of the ward;
3. To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest
derived therefrom, and of the management and
disposition of the same, at the time designated by these
rules and such other times as the court directs; and at
the expiration of his trust to settle his accounts with the
court and deliver and pay over all the estate, effects,
and moneys remaining in his hands, or due from him on
such settlement, to the person lawfully entitled thereto;
4. To perform all orders of the court by him to be
performed.
Purpose of the bond: For the protection of the property
of the minor or incompetent to the end that he may be
assured of an honest administration of his funds (Herrera,
p. 282).
Necessity of the bond: When required by statutes to
give a bond, no person can qualify and act as guardian
without complying with this condition precedent (Herrera,
p. 282).
Time when bond takes effect: At the time of
appointment notwithstanding the bond being filed later
(Herrera, p. 282).
SECTION 2. WHEN NEW BOND MAY BE REQUIRED
AND OLD SURETIES DISCHARGED
A new bond may be required when the guardian is about
to receive funds not in contemplation when the original
bond was executed and should be given as a condition of
the payment of a legacy or distributive share to the
guardian when there is any express statutory requirement
to that effect (Herrera, p.283).
RULE 94
BONDS OF GUARDI ANS
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SECTION 3. BONDS TO BE FILED. ACTIONS
THEREON
In case of breach of the bonds conditions, the bond may
be prosecuted in the same proceeding or in a separate
action, for the use and benefit of the ward or of any
person legally interested in the estate.
The bond of the guardian is a continuing one against the
obligors and their estates until all of its conditions are
fulfilled. The mere fact that defendant was removed as
guardian did not relieve her or her bondsmen from liability
during the time she was duly acting as such guardian
(Guerrero v. Teran, G.R. No. L-4898, March 19, 1909).
SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO
SELL OR ENCUMBER ESTATE
A. Grounds
1. When the income of estate is insufficient to maintain
the ward and his family or;
2. When it appears that it is for the benefit of the ward.
B. Requirements
1. Petition must be verified;
2. Notice must be given to the next of kin; and
3. Hearing so that they may show cause why petition
should not be granted.
Sale of the wards realty by the guardian without authority
from the court is void. Under the law, a parent acting
merely as legal administrator of the property of his/her
children does not have the power to dispose of, or
alienate, the property of said minor without judicial
approval (Lindain v. Court of Appeals, G.R. No. 95305,
August 20, 1992).
For the sale or encumbrance of the property, a verified
petition is required (Sec 1 of this Rule), but no such
verification is required for that purpose with respect to the
estate of a decedent (Secs 1 and 4, Rule 89) and a mere
motion therein will suffice.
SECTION 2. ORDER TO SHOW CAUSE THEREUPON
The court shall make an order directing the next of kin,
and all persons interested in the estate, to show cause
why the petition under this Rule must not be granted.
Next of Kin
Next of kin does not mean the next of kindred but pertains
to those relatives who are entitled to share in the estate of
the ward under the Law on Intestate Succession including
those who inherit per stirpes or by right of representation
(Lopez v. Teodoro, Sr., G.R. No. L-3071, May 29, 1950).
Note: Notice to next of kin and interested persons is
jurisdictional. Failure to notify the next of kin shall be a
ground for dismissal of the petition under this Rule
(Singco v. Longa, G.R. No. L-27962, February 14, 1928).
However, notice is not necessary where the next of kin to
the ward and all persons interested in the estate are her
mother and guardian, uncles and aunts who agreed to
make the transfer of their respective shares in the
property to the corporation to be organized (Pardo de
Tavera v. El Hogar Filipino, Inc. and Magdalena Estate,
G.R. No. L-5893, February 28, 1956).
SECTION 3. HEARING ON RETURN OF ORDER.
COSTS
SECTION 4. CONTENTS OF ORDER FOR SALE OR
ENCUMBRANCE, AND HOW LONG EFFECTIVE
The order of sale must specify the grounds.
General Rule: Sale must first be confirmed by the court,
and that until such confirmation, not even equitable title
passes (Herrera, p. 289).
Exception: The courts order expressly authorized the
guardian to execute and deliver to the purchaser definitely
named, a deed of conveyance to a parcel of land
specifically described at a price already fixed and it was
intended to be the approval itself of the sale that was
already perfected or agreed upon by the seller and the
buyers, needing only a judicial go-ahead signal to reduce
the agreement to the statutory form and it had been made
without departure from the terms of the order (Soriano, et.
al. v. Latono, G.R. No. L-3408, December 23, 1950).
Duration of the order of sale and encumbrance of
property:
Within 1 year from the granting of the order. It is
presumed that if the property was not sold within 1 year,
the ward has sufficient income.
The guardian, among others, cannot acquire by purchase
even at a public or judicial auction, either in person or
through the mediation of another, the property of the
person or persons who may be under his guardianship
(Art. 1491, NCC).
RULE 95
SELLI NG AND ENCUMBERI NG
PROPERTY OF WARD
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The authority to sell or encumber shall not extend beyond
1 year unless renewed by the court.
Appeal is the proper remedy against an order of the court
authorizing the sale of the wards property (Lopez v.
Teodoro, G.R. No. L- 3071, May 29, 1950).
Note: There being a presumption that the sale of the
wards estate is valid, it cannot be attacked collaterally in
the registration proceedings. A separate action to avoid or
rescind the sale on the grounds specified by law should
be filed (Margate v. Rabacal, G.R. No. L-14302, April 30,
1963).
SECTION 5. COURT MAY ORDER INVESTMENT OF
PROCEEDS AND DIRECT MANAGEMENT OF ESTATE
Sections 1 & 2 of this Rule relate only to the investment of
proceeds from the sale or encumbrance of the estate and
investment of other funds is covered by Section 5 of this
Rule. While Section 5 requires judicial authority in order
that a guardian may invest the wards money, it does not
provide that said authority must always be either prior to
or expressed (Philippine Trust Co. v. Ballesteros, G.R. No.
L-8532, October 11, 1957).

SECTION 1. TO WHAT GUARDIANSHIP SHALL
EXTEND
Conflicts regarding the ownership or title to the property in
the hands of the guardian in his capacity as such should
be litigated in a separate proceeding, the court in
guardianship proceeding being solely concerned with the
wards care and custody and proper administration of his
properties (Viloria v. Administrator of Veteran Affairs, G.R.
No. L-9620, June 28, 1957).
SECTION 2. GUARDIAN TO PAY DEBTS OF WARD
Order of liability of wards property:
1. Personal estate and income of real estate;
2. Real estate
SECTION 3. GUARDIAN TO SETTLE ACCOUNTS,
COLLECT DEBTS AND APPEAR IN ACTIONS FOR
WARD
Ordinarily, a guardian ad litem has no authority to act or
bind a minor in any transaction with regard to his estate,
but he can, however, do so with the approval of the court,
such as the amicable settlement of a case affecting the
property of the minor, duly approved by the court (Santo
Domingo v. Santo Domingo, G.R. No. L-10886, April 18,
1958).
SECTION 4. ESTATE TO BE MANAGED FRUGALLY
AND PROCEEDS APPLIED TO MAINTENANCE OF
WARD
The guardian is bound to exercise such diligence and
prudence as reasonable men ordinarily employ in the
conduct of their own affairs and will be held liable for any
loss which results from his failure to exercise such
prudence and diligence (Herrera, p. 301).
SECTION 5. GUARDIAN MAY BE AUTHORIZED TO
JOIN IN PARTITION PROCEEDINGS AFTER HEARING
Requisites:
1. Hearing;
2. Notice to relatives of the ward; and
3. Careful investigation as to the necessity and propriety
of the proposed action.
SECTION 6. PROCEEDING WHEN PERSON
SUSPECTED OF EMBEZZLING OR CONCEALING
PROPERTY OF WARD
Purpose: To secure evidence from persons suspected of
embezzling, concealing or conveying any property of the
ward so as to enable the guardian to institute the
appropriate action to obtain the possession of and secure
title to said property (Cui v. Piccio, G.R. No. L-5131, July
31, 1952).
Only in extreme cases where property clearly belongs to
the ward or where his title thereto has been already
decided, may the court direct its delivery to the guardian
(Cui v. Piccio, supra).
SECTION 7. INVENTORIES AND ACCOUNTS OF
GUARDIANS, AND APPRAISEMENT OF ESTATE
SECTION 8. WHEN GUARDIANS ACCOUNTS
PRESENTED FOR SETTLEMENT, EXPENSES AND
COMPENSATION ALLOWED
The guardian shall be allowed the amount of his
reasonable expenses incurred in the execution of his trust
and such compensation for his services, not exceeding
15% of the net income of the ward.
General powers and duties of guardians (MSICAP)
1. Manage the estate of the ward frugally, and apply the
proceeds to maintenance of the ward (Sec. 4);
2. Settle accounts, collect debts and appear in actions for
ward (Sec. 3);
RULE 96
GENERAL POWERS AND DUTI ES OF
GUARDI ANS
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3. Render a verified inventory within 3 months after his
appointment and annually thereafter, and upon
application of interested persons (Sec. 7);
4. To have the care and custody of the person of the
ward, and the management of his estate, or the
management of the estate only, as the case may be
(Sec. 1);
5. Render to court for its approval an accounting of the
property for 1 year from his appointment and every year
thereafter, and upon application of interested persons
(Sec. 8); and
6. Pay the debts of the ward (Sec. 2).
A guardian, just like a trustee, is prohibited under Article
736 of the Civil Code from making a donation of the
properties entrusted to him (Araneta v. Perez, G.R. No. L-
18872, July 15, 1966).
SECTION 1. PETITION THAT COMPETENCY OF WARD
BE ADJUDGED, AND PROCEEDINGS THEREUPON
Who may file:
1. Person who has been declared incompetent;
2. His guardian;
3. Relative; or
4. Friend.
Petition shall be verified by oath and shall state that such
person is then competent.
Grounds for termination:
1. Competency of the ward has been judicially determined;
2. Guardianship is no longer necessary;
3. Death of guardian;
4. Death of ward.
Note: Notice of hearing of the petition is not intended as a
personal service process in the sense necessary to give
the court jurisdiction over the ward (In Re Guardianship of
Incompetent Jose de Inchausti v. Soler, G.R. No. L-
15119, January 19, 1920).
Who may oppose:
1. Guardian;
2. Relative of the ward; or
3. Any other person, in the discretion of the court.
SECTION 2. WHEN GUARDIAN REMOVED OR
ALLOWED TO RESIGN. NEW APPOINTMENT
Grounds for removal of a guardian
1. Insanity;
2. Incapability or unsuitability to discharge functions;
3. Wastage or mismanagement of the property of the
ward; and
4. Failure to render an account or make a return within 30
days after it was due.
The remedy of a guardian from the order of removal is to
appeal (Olarte v. Enriquez, G.R. No. L-16098, October 31,
1960).
The guardian may file a petition before the guardianship
court for permission to resign is trust, stating the grounds
therefore, and accompanied by a report of the state of his
account and an offer to settle the account and deliver the
estate over the court (Herrera, p. 314).
SECTION 3. OTHER TERMINATION OF
GUARDIANSHIP
Voluntary emancipation under the amendments
introduced by R.A. No. 6809, is no longer recognized as a
ground for the termination of parental authority or
guardianship (Herrera, p. 315).
SECTION 4. RECORD TO BE KEPT BY JUSTICE OF
THE PEACE OR MUNICIPAL JUDGE
SECTION 5. SERVICE OF JUDGMENT
Estate/Intestate Court Guardianship Court
Rules 73-90 Rules 92-97
Statute of non-claims No statute of non-claims
Can pass upon the merits
of the claim
Cannot pass upon the
merits of the claim
Sale of personal
properties first
(Rule 89)
Sale of personal or real
properties first (Rule 95)
Bond defeats the petition
for authority to Sell
Bond does not defeat the
Petition for Authority to
Sell
Publication (Rule 89) Personal notice (Rule 95)
Indefinite effectivity of
authority to sell
1 year effectivity of
authority to sell
May appoint a special
administrator
No such thing as a
special guardian
RULE 97
TERMI NATI ON OF GUARDI ANSHI P
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Estate/Intestate Court Guardianship Court
(Remedy: Appeal from
order appointing the
guardian)
(A.M. No. 03-02-05-SC, effective May 1, 2003)
SECTION 1. APPLICABILITY OF THE RULE
The Rule applies to petitions for Guardianship over the
person or property, or both of a minor.
The father and the mother shall jointly exercise legal
guardianship over the person and property of their minor
without the necessity of a court appointment. In such
case, this Rule shall be suppletory to the provisions of the
Family Code on Guardianship.
Who may petition
1. Any relative; or
2. Other person on behalf of a minor; or
3. The minor himself if 14 years of age or over; or
4. The Secretary of Social Welfare and Development; and
5. The Secretary of Health in case of an insane minor who
needs to be hospitalized (Sec. 2).
Where to file petition: Family Court of the province or the
city where the minor actually resides. If he resides in a
foreign country, with the Family Court of the Province or
city where his property or any part thereof is situated (Sec.
3).
The petition shall be verified and accompanied by a
certification of non-forum shopping (Sec.7).
Grounds of petition (D SuRe Best)
1. Death, continued absence, or incapacity of his parents;
2. Suspension, termination or deprivation of parental
authority;
3. Remarriage of his surviving parent, if the latter is found
unsuitable to exercise parental authority;
4. When the best interests of the minor so require (Sec.
4).
Considerations in appointing guardians (MP FRALA)
1. Moral character;
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;
7. Ability to manage the property of the minor (Sec. 5).
Who may be appointed guardian of the person or
property, or both, of a minor: In default of parents or a
court-appointed guardian, the court may appoint a
guardian of a minor, observing as far as practicable, the
following order of preference:
(G-BAO)
1. The surviving grandparent and in case several
grandparents survive, the court shall select any of them
taking into account all relevant considerations;
2. The oldest brother or sister of the minor over twenty-
one years of age, unless unfit or disqualified;
3. The actual custodian of the minor over twenty-one
years of age, unless unfit or disqualified; and
4. Any other person, who in the sound discretion of the
court would serve the best interests of the minor (Sec.
6).
Contents of petition
1. The jurisdictional facts;
2. The name, age and residence of the prospective ward;
3. The ground rendering the appointment necessary or
convenient;
4. The death of the parents of the minor or the termination,
deprivation or suspension of their parental authority;
5. The remarriage of the minors surviving parent;
6. The names, ages, and residences of relatives within the
4
th
civil degree of minor, and of persons having him in
their care and custody;
7. The probable value, character and location of the
property of the minor, and the name, age and residence
of the person for whom letters of guardianship are
prayed (Sec. 7).
Time and notice of hearing: Notice must be given to
persons named in the petition and to the minor if over 14
years of age (Sec. 8).
Note: Notice to a minor who is above 14 year old is
jurisdictional. Non-compliance with this renders the
proceedings null and void.
Case study report: The court shall order a social worker
to conduct a case study of the minor and all prospective
guardians and submit his report and recommendation (3
days before hearing) to the court for its guidance before
the scheduled hearing (Sec. 9).
RULE ON GUARDI ANSHI P OF
MI NORS
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Opposition to petition: Must be in writing; need not be
verified (Sec. 10).
Grounds for opposition:
1. Majority of alleged minor;
2. Unsuitability of the person for whom letters are prayed.
Contents of opposition to the petition
1. Ground relied upon;
2. Prayer that the petition be denied; or
3. Prayer that letters of guardianship issue to himself or to
any suitable person named in the opposition.
Bond of guardian; amount and conditions: Before the
guardian enters upon the execution of his trust or letters
of guardianship he may be required to post a bond in the
amount set by the court under the following conditions:
1. To make and return to the court, within three months
after the issuance of his letters of guardianship, a true
and complete Inventory of all the property, real and
personal, of his ward which shall come to his
possession or knowledge or to the possession or
knowledge of any other person in his behalf;
2. To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for the
best interests of the ward, and to provide for his proper
care, custody and education;
3. To render a true and just account of all the property of
the ward in his hands, and of all proceeds or interest
derived therefrom, and of the management and
disposition of the same, at the time designated by this
rule and such other times as the court directs; and at
the expiration of his trust, to settle his accounts with the
court and deliver and pay over all the property, effects,
and monies remaining in his hands, or due from him on
such settlement, to the person lawfully entitled thereto;
and
4. To perform all orders of the court and such other duties
as may be required by law (Sec. 14).
Bond of parents as guardian of the property of the
minor: The parents shall post a bond if the market value
of the childs properties or income exceeds PhP50,000
and the bond shall not be less than 10% of the value of
the properties or income (Sec. 16).
Petition to sell or encumber property
Grounds:
1. When the income of estate is insufficient to maintain
and educate ward when a minor; or
2. When it appears that it is for the benefit of the ward.
The authority to sell or encumber shall not extend beyond
one year, unless renewed by the court (Sec.19).
Grounds for removal or resignation of guardian
Guardian:
1. Becomes insane or otherwise incapable of discharging
his trust;
2. Is found thereafter to be unsuitable;
3. Has wasted or mismanaged the property of the ward;
4. Has failed to render an account or make a return 30
days after it was due (Sec.24).
Note: Before a motion for removal or resignation may be
granted under Sec. 24, the guardian must submit the
proper accounting of the property of the ward and the
court has to approve the same.
Grounds for termination of guardianship
1. The ward has come of age; or
2. Has died (Sec. 25).
Guardianships termination may be motu proprio or by a
verified motion by any person allowed to file a petition for
guardianship on the grounds of majority and/or death of
the ward (in case of death, notify the court within ten (10)
days).
Minor
Incompetents Who Are
Not Minors
Who may file
1. Any relative; or
2. Other person on
behalf of a minor; or
3. The minor himself if 14
years of age or over; or
4. The Secretary of Social
Welfare and
Development AND by
5. The Secretary of Health
in case of an insane
minor who needs to be
hospitalized (Sec.2 AM
03-02-05-SC).
1. Any relative;
2. Friend; or
3. Other person on behalf of
the resident incompetent
who has no parents or
lawful guardian; or
4. The Director of Health in
favor of an insane person
who should be
hospitalized or in favor of
an isolated leper (Sec. 1);
5. Anyone interested in the
estate of a non-resident
incompetent (Sec. 6).
Contents of Petition
1. The jurisdictional facts;
2. The name, age and
residence of the
prospective ward;
3. The ground rendering
the appointment
necessary or
convenient;
4. The death of the
parents of the minor or
1. The jurisdictional facts;
2. The incompetency
rendering the
appointment necessary
or convenient;
3. The names, ages, and
residences of the
relatives of the
incompetent, and of
the persons having him
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Minor
Incompetents Who Are
Not Minors
the termination,
deprivation or
suspension of their
parental authority;
5. The remarriage of the
minors surviving
parent;
6. The names, ages, and
residences of relative
within the 4
th
civil
degree of minor, and of
persons having him in
their care and custody;
7. The probable value,
character and location
of the property of the
minor; and
8. The name, age
and residence of the
person for whom letters
of guardianship are
prayed (Sec. 7, AM 03-
02-05-SC).
in their care;
4. The probable value
and character of his
estate;
5. The name of the
person for whom
letters of guardianship
are prayed (Sec. 2
Rule 93).
Grounds for Termination
1. The ward has come of
age; or
2. Has died (Sec. 25, AM
03-02-05-SC).
1. Competency of the ward
has been judicially
determined;
2. Guardianship is no
longer necessary;
3. Death of guardian;
4. Death of ward.
Note: The petition involving minors is required to be
verified and accompanied by certification against forum
shopping while that involving incompetent must be
verified only. However, no defect in the petition or
verification shall render void the issuance of letters of
guardianship.
Executor/
Administrator
Guardian Trustee
Accounts are not
under oath and
except for initial
and final
submission of
Accounts must
be under oath
and filed
annually.
Accounts must
be under oath
and filed
annually.
accounts, they
shall be filed only
at such times as
may be
REQUIRED by
the court.
Court that has
jurisdiction may
be MTC or RTC.
Court which has
jurisdiction is
RTC (incom-
petent) or Family
Court
(minors).
Court which has
jurisdiction is
RTC or MTC if
appointed to
carry into effect
provisions of a
will; if trustee
dies, resigns or
removed in a
contractual trust,
RTC has
jurisdiction in the
appointment of
new trustee.
May sell,
encumber or
mortgage
property if it is
necessary for the
purpose of
paying debts,
expenses of
administration or
legacies, or for
the preservation
of property or if
sale will be
beneficial to
heirs, legatees or
devisees (upon
application to the
court with written
notice to the
heirs).
May sell or
encumber
property of ward
if income of
estate is
insufficient to
maintain ward
and his family
and educate
ward or the sale
or encumbrance
is for the benefit
of ward upon
order of the
court.
May sell or
encumber
property of estate
held in trust if
necessary or
expedient upon
order of the
court.
Order of sale has
no time limit.
Order of sale is
valid for only 1
year after grant
of the same.
Order of sale has
no time limit.
Appointed by the
court to settle
estate of
decedent.
Appointed as
guardian.
Appointed to
carry into effect
the provisions of
a will or written
instrument
(contractual
trust).
Not exempted
from filing bond
even if such
Must always file
a bond.
May be
exempted from
filing bond if
RULE 98
TRUSTEES
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exemption is
provided in the
will (bond is only
conditioned upon
payment of
debts).
provided in the
will or if
beneficiaries
requested
exemption.
Services of
executor or
administrator is
terminated upon
payment of debts
of the estate and
distribution of
property to heirs.
Guardianship is
terminated upon
attainment of age
of majority of the
minor or upon
gaining
competency in
the case of an
incompetent
(need court order
for the latter).
Trusteeship is
terminated upon
turning over the
property to
beneficiary after
expiration of trust
(period may be
provided for in
the will or trust
contract).
Must pay the
debts of the
estate.
Must pay the
debts of the
ward.
No obligation to
pay debts of
beneficiary or
trustor.
Procedure for appointment of trustees under Rule 98
SECTION 1. WHERE TRUSTEE APPOINTED
Jurisdiction: The RTC or MTC in which the will was
allowed, if it be a will allowed in the Philippines, otherwise
by the RTC of the province in which the property, or some
portion thereof, affected by the trust, is situated.
A trustee is necessary to carry into effect:
1. A will creating a trust but the testator omitted to appoint
a trustee in the Philippines (Testamentary Trust); and
2. Other written instruments where the trustee therein
declines, resigns, dies, or is removed before
accomplishment of trust (Contractual Trust).
Note: This rule applies only to express trusts and not to
implied trusts which arise by operation of law (Regalado,
p. 153).
SECTION 2. APPOINTMENT AND POWERS OF
TRUSTEE UNDER WILL. EXECUTOR OF FORMER
TRUSTEE NEED NOT ADMINISTER TRUST
No person succeeding to the trust as executor or
administrator of a former trustee shall be required to
accept such trust.
Note: Notice to and consent of the beneficiary are not
essential for the creation of the trust (De Leon v. Molo-
Peckson, G.R. No. L-17809, December 29, 1962).
The trustee to be appointed shall have the same rights,
powers, and duties, and in whom the estate shall vest, as
if he had been appointed by the testator.
SECTION 3. APPOINTMENT AND POWERS OF NEW
TRUSTEE UNDER A WRITTEN INSTRUMENT
When a new trustee appointed: When a trustee under a
written instrument declines, resigns, dies or is removed
before the objects of the trust are accomplished and no
adequate provision is made in such instrument supplying
the vacancy.
SECTION 4. PROCEEDINGS WHERE TRUSTEE
APPOINTED ABROAD
When land in the Philippines is held in trust for a resident
by a trustee who derives his authority from abroad, such
trustee must petition the RTC where the land is situated,
otherwise, the trust will be vacant and a new trustee will
be appointed.
When a trust is created abroad for property in the
Philippines, judicial approval is still needed though the
trustor is alive.
SECTION 5. TRUSTEE MUST FILE BOND
Neglect of trustees to file a bond will be interpreted by the
court as resignation or a decline to accept the trust.
However, he may be exempted from bond when
requested by:
1. Testator;
2. All persons beneficially interested in the trust.
Allowance of the instrument
creating the trust (Probate of will)
Petition by the executor/ administrator or
the person appointed as trustee in the
instrument
Appointment of the trustee by the
court
Notice to all interested persons
Filing of bond by the trustee
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Nonetheless, the court may cancel such exemption
anytime.
SECTION 6. CONDITIONS INCLUDED IN BOND (ASIM)
1. That he will render upon oath at least once a year until
his trust is fulfilled a true account of the property in his
hands and of the management and disposition thereof,
and such other accounts as the court may order;
2. That at the expiration of his trust he will 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;
3. That the trustee will make and return to the court, at
such time as it may order, a true inventory of all the
estate belonging to him as trustee, which at the time of
the making of such inventory shall have come to his
possession or knowledge;
4. That he will manage and dispose of all such estate, and
faithfully discharge his trust in relation thereto,
according to law and the will of the testator or the
provisions of the instrument or order under which he is
appointed.
When the trustee is appointed as a successor to a prior
trustee, the court may dispense with the making and
return of an inventory if one has already been filed.
SECTION 7. APPRAISAL. COMPENSATION OF
TRUSTEE
The compensation of the trustee is that which is provided
by the instrument creating the trust. Otherwise, it shall be
fixed by the court.
SECTION 8. REMOVAL OR RESIGNATION OF
TRUSTEE
Requisites:
1. Petition filed by parties beneficially interested;
2. Notice to trustee; and
3. Hearing.
Who may petition: Parties beneficially interested.
Grounds:
1. Removal appears essential in the interest of petitioners;
2. Insanity;
3. Incapability of discharging trust;
4. Unsuitability.
A trustee is at liberty to tender his resignation and apply
for his release on the sole ground of unwillingness to act
further in the trust. But the acceptance of the resignation
of a trustee is not a matter of course; due regard must be
had for the interest of the parties to be affected and there
must ordinarily be some ground for discharge other than
the mere wish of the trustee to be relieved (Herrera, p.
459).
Note: The trustee is prohibited from acquiring the property
whether by purchase, even in a public or judicial action,
either in person or through the mediation of another. (Art.
1491, NCC)
SECTION 9. PROCEEDINGS FOR SALE OR
ENCUMBRANCE OF TRUST ESTATE
The Rules on Sale and Encumbrance of Trust Estate shall
conform as nearly as may be to the provisions on Sale
and Encumbrance by Guardians.
Preliminary Considerations
Note: The provisions of the Rules of Court on Adoption
have been amended by the Domestic Adoption Act of
1998 and the Inter-country Adoption Act of 1995. Sec. 6 of
Rule 99 was already amended by Administrative Circular
No. 03-04-04 while Sec. 7 of Rule 99 was amended by
Administrative Circular No. 02-1-19-SC.
Effective August 22, 2002, there is a new Rule on
Adoption (Section 33, Administrative Matter No. 02-6-02-
SC).
Nature and concept of adoption: Adoption is a juridical
act, a proceeding in rem, which creates between two
persons a relationship similar to that which results from
legitimate paternity and filiation (Herrera, p. 317).
Only an adoption made in pursuance with the procedures
laid down under A.M. No. 02-6-02-SC Rules on Domestic
and Inter-Country Adoption is valid in this jurisdiction.
Adoption is not an adversarial proceeding. There is no
particular defendant since the proceeding involves the
status of a person it being an action in rem (Herrera, p.
324).
Purpose of adoption: The promotion of the welfare of the
child and the enhancement of his opportunities for a
useful and happy life, and every intendment is sustained
to promote that objective (Daoang v, Court of Appeals,
G.R. No. L-34568, March 28, 1988).
Adoption is strictly personal between the adopter and the
adopted (Teotico v. Del Val, G.R. No. L-18753, March 26,
1956).
ADOPTI ON
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Adoption is a privilege, not innate or fundamental, but
rather a right created by statute. It is a privilege which is
governed by the states determination of what is for the
best welfare of the child (Lahum v. Sibulo, G.R. No.
143989, July 14, 2003).
Financial capacity: While petitioner claims that she has
the financial support and backing of her children and
siblings, the ability to support the adoptees is personal to
the adopter, as adoption only creates a legal relation
between the former and the latter (Landingin v. Republic
of the Philippines, G.R. No. 164948, 27 June 2006).
Note: When a foreigner who is married to Filipino citizen
seeks to adopt jointly with his/her spouse as relative within
the fourth civil degree of consanguinity or affinity of the
Filipino spouse, the Domestic Adoption Act shall apply.
Construction of adoption statutes: All the sections are
designed to protect the best interests of the adoptee
(Herrera, p. 346).
Adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount
consideration and are designed to provide homes,
parental care and education for unfortunate, needy or
orphaned children and give them the protection of society
and family in the person of the adopter as well as to allow
childless couples or persons to experience the joys of
parenthood and give them legally a child in the person of
the adopted for the manifestation of their natural parental
instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and
compassionate objectives of the law (Malkinsons v.
Agrava, G.R. No. L-36309, November 26, 1973).
Subsequent laws
1. P.D. No. 603, otherwise known as Child and Youth
Welfare Code, which expressly repealed all the Civil
Code provisions on Adoption, as amended by Executive
Order No. 91;
2. R.A. No. 8043 on Inter Country Adoption;
3. Family Code of the Philippines which repealed the
substantive provisions of P.D. No. 603 and E.O. No. 91;
4. Family Courts Act of 1997 establising Family Courts
vested with exclusive and original jurisdiction over
adoption cases;
5. R.A. No. 8552 otherwise known as Domestic Adoption
Act; and
6. Implementing rules promulgated by the Supreme Court:
a. A.M. No. 02-1-19-SC Re: Proposed Rule on
Commitment of Children Effective April 15, 2002;
b. A.M. No. 02-6-02-SC Rule on Domestic and Inter-
Country Adoption Effective August 22, 2002; and
c. Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors Effective
May 15, 2003.
(Secs. 1-25, A.M. No. 02-6-02)
Procedure for Domestic Adoption under AM-02-6-02-
SC
Who may adopt (Sec.4)
A. Any Filipino Citizen
1. Of legal age;
2. In possession of full civil capacity and legal rights;
3. Of good moral character;
4. Has not been convicted of any crime involving moral
turpitude;
5. Emotionally and psychologically capable of caring for
children;
6. At least 16 years older than the adoptee.
Except: when the adopter is the adoptees biological
parent or the spouse of the adoptees parent; and
7. In a position to support and care for his/her children in
keeping with the means of the family.
B. Any alien possessing the same qualifications as
above, Provided:
1. That his country has diplomatic relations with the
Philippines;
RULES ON DOMESTI C ADOPTI ON
Petition for Domestic
Adoption
Order of Hearing by the
court
Child and Home Study
Reports by the Social
Worker
Hearing on the Petition for
Adoption
Supervised Trial Custody
Adoption Decree issued
by the court
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2. That he has been living in the Philippines for at least
3 continuous years prior to the filing of the application
for adoption;
3. Maintains residence until the adoption decree is
entered;
4. Certified by his diplomatic or consular office or any
appropriate government agency to have legal
capacity to adopt by his country; and
5. That his government allows the adoptee to enter his
country as his adopted child.
The requirements on residency and certification of the
aliens qualification to adopt in his country may be
waived for the following:
a. A former Filipino citizen who seeks to adopt a relative
within the 4th degree of consanguinity or affinity; or
b. One who seeks to adopt the legitimate child of his
Filipino spouse; or
c. One who is married to a Filipino citizen and seeks to
adopt jointly with his spouse a relative within the 4th
degree of consanguinity or affinity of the Filipino
spouse.
C. The guardian with respect to the ward after the
termination of the guardianship and clearance of his
financial accountabilities.
Who may be adopted (Sec. 5)
1. Any person below 18 years of age who has been
judicially declared available for adoption or voluntarily
committed to DSWD;
2. The legitimate child of one spouse, by the other spouse;
3. An illegitimate child, by a qualified adopter to raise the
status of the former to that of legitimacy;
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 since minority;
5. A child whose adoption has been previously rescinded;
6. A child whose biological or adoptive parents have died,
but no proceedings shall be initiated within 6 months
from the time of death of said parents;
7. A child not otherwise disqualified by law or these rules.
A child legally available for adoption
It refers to a child who has been voluntarily or involuntarily
committed to the DSWD or to a duly licensed and
accredited child-placing or child caring agency, freed of
the parental authority of his biological parents, or in case
or rescission of adoption, his guardian or adopter/s (Sec.
3).
Two ways to commit a child
1. Administrative/Voluntary: In this case, the parent or
guardian of the child voluntarily committed him to the
DSWD or any duly licensed child placement or child
caring agency. The child must be surrendered in
writing. Such written instrument must be notarized and
signed in the presence of an authorized representative
of the department after counseling has been made to
encourage the parents to keep the child (Sec. 5, AM 02-
1-19-SC).
2. Judicial/Involuntary: Follow the procedure in
Proposed Rule on Commitment of Children (AM 02-1-
19-SC) under special laws.
Joint adoption of spouses
General rule: Husband and wife shall jointly adopt (Art.
185, Family Code).
Exceptions:
1. If one spouse seeks to adopt the legitimate child of the
other;
2. If one spouse seeks to adopt his own illegitimate
son/daughter, provided that the other spouse has
signified his consent thereto;
3. If the spouses are legally separated from each other
(Sec. 4, A.M. 02-6-02-SC).
This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the
child to be adopted is elevated to the level if illegitimate
child, it is but natural to require both the spouses to adopt
jointly (Republic v. Toledano, G.R. No. 9447, June 8,
1994).
Venue (Sec.6)
Family Court where the prospective adoptive parents
reside.
Contents of the petition (Sec.7)
A. If the adopter is a Filipino citizen, the petition shall
allege the following:
1. The jurisdictional facts;
2. That the petitioner is of legal age, in possession of full
civil capacity and legal rights; is of good moral
character; has not been convicted of any crime
involving moral turpitude; is emotionally and
psychologically capable of caring for children; is at
least 16 years older than the adoptee, unless the
adopter is the biological parent of the adoptee or is
the spouse of the adoptees parent; and is in a
position to support and care for his children in
keeping with the means of the family and has
undergone pre-adoption services as required by
Section 4 of R.A. No. 8552.
B. If the adopter is an alien, the petition shall allege the
following:
1. The jurisdictional facts;
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2. Sub-paragraph A.2 above;
3. That his country has diplomatic relations with the
Republic of the Philippines;
4. That he has been certified by his diplomatic or
consular office or any appropriate government
agency to have the legal capacity to adopt in his
country and his government allows the adoptee to
enter his country as his adopted child and reside
there permanently as an adopted child; and
5. That he has been living in the Philippines for at least
three (3) continuous years prior to the filing of the
petition and he maintains such residence until the
adoption decree is entered.
The requirements of certification of the aliens
qualification to adopt in his country and of residency
may be waived if the alien:
a. Is a former Filipino citizen who seeks to adopt a
relative within the fourth degree of consanguinity or
affinity; or
b. Seeks to adopt the legitimate child of his Filipino
spouse; or
c. Is married to a Filipino citizen and seeks to adopt
jointly with his spouse a relative within the fourth
degree of consanguinity or affinity of the Filipino
spouse.
C. If the adopter is the legal guardian of the adoptee:
The petition shall allege that guardianship had been
terminated and the guardian had cleared his financial
accountabilities.
D. If the adopter is married, the spouse shall be a co-
petitioner for joint adoption except if:
1. One spouse seeks to adopt the legitimate child of the
other; or
2. One spouse seeks to adopt his own illegitimate child
and the other spouse signified written consent
thereto; or
3. The spouses are legally separated from each other.
E. If the adoptee is a foundling:
The petition shall allege the entries which should
appear in his birth certificate, such as name of child,
date of birth, place of birth, if known; sex, name and
citizenship of adoptive mother and father, and the date
and place of their marriage.
F. If the petition prays for a change of name:
It shall also state the cause or reason for the change of
name.
All petitions shall allege:
1. The first name, surname or names, age and residence
of the adoptee as shown by his record of birth,
baptismal or foundling certificate and school records;
2. That the adoptee is not disqualified by law to be
adopted;
3. The probable value and character of the estate of the
adoptee;
4. The first name, surname or names by which the
adoptee is to be known and registered in the Civil
Registry.
The petition shall be verified with a certificate of non-
forum shopping and specifically state at the heading of the
initiatory pleading whether the petition contains an
application for a change of name, rectification of simulated
birth, voluntary or involuntary commitment of children, or
declaration of child as abandoned, dependent or
neglected.
Rectification of simulated birth
It shall allege that:
1. Petitioner is applying for rectification of a simulated
birth;
2. The simulation of birth was made prior to the date of
effectivity of R.A. No. 8552, and the application for
rectification of the birth registration and the petition for
adoption were filed within five years from said date;
3. The petitioner made the simulation of birth for the best
interests of the adoptee; and
4. The adoptee has been consistently considered and
treated by petitioner as his own child (Sec.8).
Adoption of a foundling, an abandoned, dependent or
neglected child
The petition shall allege:
1. The facts showing that the child is a foundling,
abandoned, dependent or neglected;
2. The names of the parents, if known, and their
residence. If the child has no known or living parents,
then the name and residence of the guardian, if any;
3. The name of the duly licensed child-placement agency
or individual under whose care the child is in custody;
and
4. That the Department, child-placement or child-caring
agency is authorized to give its consent (Sec. 9).
Abandonment
In its ordinary sense, it means to forsake entirely, to
renounce utterly (Herrera, p. 351).
In reference to abandonment of a child by his parent, the
act of abandonment imports any conduct of the parent
which evinces a settled purpose to forego all parental
duties and relinquish all parental claims to the child. It
means neglect or refusal to perform the natural and legal
obligations of care and support, which parents owe their
children (Cang v. Court of Appeals, G.R. No. 105308,
September 25, 1998).
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Change of name: The present Rule on Domestic
Adoption allows the petition to include an application for
change of name (Sec. 10).
The title or caption must contain;
1. The registered name of the child;
2. Aliases or other names by which the child has been
known; and
3. The full name by which the child is to be known.
Annexes to the petition
A. Birth, baptismal or foundling certificate, as the case may
be, and school records showing the name, age and
residence of the adoptee;
B. Affidavit of consent of the following:
1. The adoptee, if 10 years of age or over;
2. The biological parents of the child, if known, or the
legal guardian, or the child-placement agency, child-
caring agency, or the proper government
instrumentality which has legal custody of the child;
3. The legitimate and adopted children of the adopter
and of the adoptee, if any, who are 10 years of age or
over;
4. The illegitimate children of the adopter living with him
who are 10 years of age or over; and
5. The spouse, if any, of the adopter or adoptee
(Sec.11).
Parental consent
Parental consent required by law in adoption refers to
parents who have not abandoned their child.
Accordingly, one whom such child was given by his
mother, who does not wish to be identified, is
considered the guardian of the child and can give valid
consent to the childs adoption, as said child is
considered as abandoned (Duncan v. CFI Rizal, G.R.
No. L-30576, February 10, 1976).
Nevertheless, the requirement of written consent can be
dispensed with if the parent has abandoned the child or
that such parent is insane or hopelessly intemperate,
provided that sufficient facts are alleged in the petition
in order to warrant exemption (Cang v. Court of
Appeals, supra).
C. Child study report on the adoptee and his biological
parents;
D. If the petitioner is an alien, certification by his diplomatic
or consular office or any appropriate government
agency that he has the legal capacity to adopt in his
country and that his government allows the adoptee to
enter his country as his own adopted child unless
exempted under Section 4(2);
E. Home study report on the adopters. If the adopter is an
alien or residing abroad but qualified to adopt, the home
study report by a foreign adoption agency duly
accredited by the Inter-Country Adoption Board; and
F. Decree of annulment, nullity or legal separation of the
adopter as well as that of the biological parents of the
adoptee, if any.
Procedure
A. Order of hearing
1. It must be published at least once a week for 3
successive weeks;
2. At the discretion of the court, copies of the order of
hearing shall be furnished to the office of the Solicitor
General. Through the provincial or city prosecutor,
the DSWD and the biological parents of the adoptee,
if known;
3. If a change in the name of the adoptee is prayed for
in the petition, notice to the Solicitor General shall be
mandatory;
4. If the petition and attachments are sufficient in form
and substance, the court shall issue an order
(Sec.12).
Contents of order
1. Adoptees registered name in the birth certificate, and
the names by which the adoptee has been known (to
be stated in the caption);
2. Petitions purpose;
3. Complete name which the adoptee will use if the
petition is granted;
4. Hearings date and place of hearing (within 6 months
from the date of the orders issuance)
5. Directive to the social worker to prepare and submit
child and home study reports before the hearing, if
such reports were not attached to the petition due to
unavailability at the time of the filing; and
6. Directive to the social worker to conduct counseling
sessions with the biological parents and to submit a
report before the hearing (Sec. 12).
The necessary jurisdictional requirements should be
indicated in the petition for adoption. Thus, the name of
the person to be adopted is that appearing in the civil
registry and the court does not acquire jurisdiction if a
different name is carried in the notice of publication
(Cruz v. Republic of the Philippines, G.R. No. L-20927,
July 26, 1966).
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Role of the Solicitor General: When the petition
includes a prayer for change of name, notice to the
Solicitor General is mandatory to protect the interests of
the State. On other matters, the courts are given
discretion to decide whether such notice should be
given (Herrera, p. 347).
B. Child & Home Study Reports The social worker
verifies with the Civil Registry the real identity and the
name of adoptee and the fact that he is legally available
for adoption. If the adoptees birth was not registered,
the social worker shall register the adoptee and secure
a certificate of foundling or late registration (Sec.13).
The social worker may make recommendations to the
court if he finds some grounds to deny the petition.
The social worker shall establish:
1. The child is legally available for adoption;
2. The documents in support thereof are valid and
authentic;
3. The adopter has sincere intentions towards the
adoptee;
4. The adoption shall inure to the best interests of the
child.
In case of alien adopter, the home study report must
show:
1. Adopters legal capacity to adopt;
2. His government allows the adoptee to enter his
country as his adopted child in the absence of the
certification required under Sec. 7(b), R.A. No. 8552.
C. Hearing Hearing is to be held within 6 months from
the date of issuance of the order (Sec.14).
Except: In case of application for change of name
which hearing must not be within 4 months after last
publication nor within 30 days prior to election.
The petitioner and the adoptee must personally appear
and the former must testify in court.
D. Supervised Trial Custody (STC) Before issuance of
decree of adoption the court shall give the adopter trial
custody of the adoptee for at least 6 months (Sec.15).
Ratio: In order for the parties to adjust psychologically
and emotionally with each other and to establish a
bonding relationship.
Note: Court may reduce or exempt parties from
Supervised Trial Custody, if it finds that the same shall
be for the best interest of the adoptee.
The trial custody shall be monitored by the social
worker who submitted and prepared the case studies.
General rule: Alien adopter must complete the 6 months
Supervised Trial Custody.
Exception: Same as exemptions from requirements of
residency and certification:
1. A former Filipino citizen who seeks to adopt a relative
within the 4
th
degree;
2. One who seeks to adopt the legitimate child of his
Filipino spouse;
3. One who is married to a Filipino citizen and seeks to
adopt jointly with his spouse the latters relative within
the 4
th
degree.
Temporary Parental Authority: It is provisionally vested
in the adopting parents during the period of trial custody,
before the issuance of a decree of adoption, precisely
because the adopting parents are given actual custody of
the child during such trial period (Herrera, p. 356).
However, where the trial custody had not begun or had
already been completed at the time of quasi-delict
committed by a child to be adopted, the adopting parents
cannot assume any liability therefor. The natural parents
should be joined as indispensable parties to the suit for
damages (Tamargo v. Court of Appeals, G.R. No. 8044,
June 3, 1992).
If the child to be adopted is below 7 years of age and is
placed with the prospective adopter through a DSWD pre-
adoption placement authority, the court shall order that
the prospective adopter shall enjoy all the benefits to
which the biological parent is entitled from the date the
adoptee is placed with him.
The social worker shall submit to the court a report on the
result of the trial custody within 2 weeks after its
termination.
E. Decree of adoption If the court is convinced from the
trial custody report and the evidence presented, that the
adoption shall redound to the best interest of the child,
an adoption decree shall be issued (Sec.16).
The decree of adoption shall take effect as of the date
of filing of the original petition.
Contents of the adoption decree
1. The name by which the child is to be known;
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2. Order to the Clerk of Court to issue to the adopter a
certificate of finality upon expiration of the 155-day
reglementary period within which to appeal;
3. Order to the adopter to submit a certified true copy of
the decree of adoption and the certificate of finality to
the Civil Registrar where the child was originally
registered within 30 days from receipt of the
certificate of finality;
4. In case of change of name, the decree shall be
submitted to the Civil Registrar where the court
issuing the same is situated;
5. Order the Civil Registrar:
a. To annotate on the adoptees original birth
certificate the decree of adoption within 30 days
from receipt of certificate of finality;
b. To issue new birth certificate which shall not bear
any notation that it is new or amended certificate
which shall allow: registry number, date of
registration, name of child, sex, date of birth, place
of birth, name and citizenship of adoptive parents
and the date and place of their marriage, if
applicable;
c. To seal the original birth certificate in the civil
registry records which can be opened only upon
the order of the court which issued the decree of
adoption;
d. To submit to the court issuing the decree of
adoption proof of compliance with all the foregoing
within 30 days from date of receipt of the decree.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall be issued. The
original birth certificate shall be stamped cancelled
and shall be sealed in the Civil Registry records.
Book of adoptions: All matters relative to adoption and
all incidents arising after the issuance of the decree shall
be recorded in the book of adoption kept by the clerk of
court of the Family Court (Sec. 17).
Confidentiality of proceedings and records
General Rule: After compliance with jurisdictional
requirements, all adoption hearings shall be confidential
and shall not be open to the public. All related records
shall be kept strictly confidential (Sec. 18).
Exception: For security reasons or for the best interest of
the child, the Court may, upon meritorious grounds allow
the release of the information with restrictions, if
necessary (Herrera, p. 348).
Effects of adoption
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and the
adoptee shall be severed, except when biological
parent is spouse of adopter;
3. Adoptee shall be considered legitimate child of adopter
for all intents and purposes;
4. Adopters shall have reciprocal rights of succession
without distinction from legitimate filiation.
The decree of adoption shall have a retroactive effect from
the time of the petition.
It is a settled rule that adoption statutes, being human
and salutary, should be liberally construed to carry out the
beneficent purposes of adoption. x x x. Hence, since there
is no law prohibiting an illegitimate child adopted by her
natural father, x x x, to use, as middle name her mothers
surname, we find no reason why she should not be
allowed to do so (In Re: Adoption of Stephanie Nathy
Garcia, G.R. No. 148311, March 31, 2005).
Who may rescind the adoption? The adopter cannot
rescind the adoption, only the adoptee may rescind within
5 years from reaching the age of majority or after recovery
from incompetency. Such a petition for rescission shall be
filed in the Family Court where the adoptee resides. In
case of a minor, he shall be assisted by a social work from
DSWD or by the minors guardian, if he is over 18 years of
age but is incapacitated.
The adopter may not rescind the adoption; however, he
may disinherit the adopted child (Art. 919, Civil Code).
Grounds for rescission (Sec. 19)
1. Repeated physical and verbal maltreatment despite
having undergone counseling;
2. Attempt on the adoptees life;
3. Sexual assault or violence;
4. Abandonment or failure to comply with parental
obligations.
Order to answer: The court shall order the adverse party
to file an answer within 15 days from the receipt thereof
(Sec. 22).
Judgment: If the court finds that the petitions allegations
are true, it shall order the rescission of adoption (Sec. 23).
The court shall order that:
1. The biological parents parental authority, or the
DSWDs legal custody, shall be restored if the adoptee
is still a minor or incapacitated;
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2. The reciprocal rights and obligations of the adopter and
the adoptee shall be extinguished;
3. The successional rights shall revert to its status prior to
adoption, as of the date of judgment of judicial
rescission. Vested rights acquired prior to judicial
rescission shall be respected;
4. The adoptee shall use the name stated in his original
birth/foundling certificate;
5. The Civil Registrar where the adoption decree was
registered shall cancel the new birth certificate of the
adoptee and reinstate his original birth/foundling
certificate.
Service of judgment A certified true copy of the
judgment and a certificate of finality shall be served by the
petitioner upon the Civil Registrar within 30 days from
receipt of the certificate of finality. The Civil Registrar shall
enter the rescission decree in the register and submit
proof of compliance to the court within 30 days from
receipt of the decree (Sec. 24).
Objectives
1. To consider inter-country adoption as an alternative
means of child care, if the child cannot be placed in a
foster/adoptive family or cannot be cared for in the
Philippines;
2. To ensure that the child enjoys the same protection
accorded to children in domestic adoption;
3. To ensure that the placement does not result in
improper financial gain for those involved (Sec. 27).
Where to file petition
1. 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;
2. It may be filed directly with the Inter-Country Adoption
Board (Sec. 28).
Who may adopt:
1. Any alien or Filipino citizen permanently residing abroad
who is at least twenty-seven (27) years of age;
2. Other requirements are the same as with R.A. No.
8552.
Who may be adopted: Only a child legally available for
domestic adoption may be the subject of inter-country
adoption (Sec.29).
A child under the Inter-Country Adoption Act is defined as
any person below fifteen (15) years of age.
The Board shall ensure that all possibilities for adoption of
the child under the Family Code have been exhausted
and that inter-country adoption is in the best interest of the
child (Section 7, R.A. No. 8043).
Contents of petition
Petitioner must allege:
1. His age and the age of the child to be adopted, showing
that he is 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, unless the petitioner
is the parent by nature of the child to be adopted or the
spouse of such parent, in which case the age difference
does not apply;
2. If married, the name of the spouse who must be joined
as co-petitioner except when the adoptee is a legitimate
child of his spouse;
3. That he has the capacity to act and assume all rights
and responsibilities of parental authority under his
national laws, and has undergone the appropriate
counseling from an accredited counselor in his country;
4. That he has not been convicted of a crime involving
moral turpitude;
5. That he is eligible to adopt under his national law;
6. That he can provide the proper care and support and
instill the necessary moral values and example to all his
children, including the child to be adopted;
7. That he agrees to uphold the basic rights of the child,
as embodied under Philippine laws and the U.N.
Convention on the Rights of the Child, and to abide by
the rules and regulations issued to implement the
provisions of R.A. No. 8043;
8. That he comes from a country with which the
Philippines has diplomatic relations and whose
government maintains a similarly authorized and
accredited agency and that adoption of a Filipino child
is allowed under his national laws; and
9. That he possesses all the qualifications and none of the
disqualifications provided in this Rule, in R.A. No. 8043
and in all other applicable Philippine laws (Sec. 30).
Annexes : The following must be in writing and officially
translated in English:
1. Birth certificate of petitioner;
2. Marriage contract, if married, and, if applicable, the
divorce decree, or judgment dissolving the marriage;
3. Sworn statement of consent of petitioners biological
or adopted children above ten (10) years of age;
INTER-COUNTRY ADOPTI ON
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4. Physical, medical and psychological evaluation of
the petitioner certified by a duly licensed physician and
psychologist;
5. Income tax returns or any authentic document
showing the current financial capability of the petitioner;
6. Police clearance of petitioner issued within six (6)
months before the filing of the petitioner;
7. Character reference from the local church/minister, the
petitioners employer and a member of the immediate
community who have known the petitioner for at least
five (5) years;
8. Full body postcard-size pictures of the petitioner and
his immediate family taken at least six (6) months
before the filing of the petition (Sec.31).
Note: Items (5) to (7) are not applicable in a domestic
adoption.
Functions of the RTC: The Regional Trial Court, after
finding the petition (in case of foreigners who file a petition
for adoption in the Philippines under the Domestic
Adoption Act of 1998 otherwise known as RA 8552) to be
sufficient in form and substance and a proper case for
inter-country adoption, shall immediately transmit the
petition to the Board for appropriate action (Sec. 30 of
Amended Implementing Rules And Regulations On Inter-
Country Adoption or R.A. No. 8043).
An adoption created under the law of a foreign country is
entitled to registration in the corresponding civil register of
the Philippines. The effects of such adoption shall be
governed by the law of the Philippines (Marcaida v.
Aglubat, G.R. No. L-24006, November 25, 1967).
Best interest of the minor standard
Best interest of the minor standard refers 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 (Sec. 14 A.M. No.
03-04-04-SC 2003-04-22).
Domestic Adoption Inter-Country Adoption
Judicial Adoption Extrajudicial Adoption
R.A. No. 8552 (Domestic
Adoption Act) amended
Arts. 183-193 of the Family
Code and is the governing
law for Filipino citizens
adopting other Filipinos
(whether relatives or
R.A. No. 8043 (Inter-
Country Adoption Act)
governs the adoption of
Filipinos by foreigners, and
is implemented by the Inter-
Country Adoption Board.
Domestic Adoption Inter-Country Adoption
strangers) with some
exceptions.
Procedure governed by
A.M. No. 02-06-02-SC.
Rescission of adoption is
no longer allowed under
R.A. No. 8552.
Procedure governed by
Amended Implementing
Rules and Regulations on
Inter Country Adoption Act
approved January 8, 2004.
Definition of a Child
Child is a person below
18 years of age.
A person below 15 years of
age unless sooner
emancipated by law.
Who may Adopt
a. Any Filipino citizen;
b. Any alien possessing
the same qualifications
for Filipino nationals;
c. Guardian with respect to
the ward
An alien or a Filipino citizen
permanently residing
abroad may file an
application for inter-country
adoption of a Filipino child.
Qualifications
Filipino Citizen
1. Legal age;
2. In possession of full civil
capacity and legal rights;
3. Good moral character;
4. Has not been convicted
of any crime involving
moral turpitude;
5. Emotionally and
psychologically capable
of caring for children;
and
6. At least 16 years older
than the adoptee
(waived when the
adopter is the biological
parent of the adoptee, or
is the spouse of the
adoptees parent)
Alien
1. Same as the
qualifications for Filipino
citizens;
2. His/her country has
diplomatic relations with
the Philippines;
3. He/she has been living
in the Philippines for at
least 3 continuous years
prior to the filing of the
1. At least 27 years of age
and at least 16 years
older than the adoptee at
the time of the application
for adoption unless the
adopter is the parent by
nature of the child to be
adopted or the spouse of
such parent;
2. If married, his/her spouse
must jointly file for the
adoption;
3. Has the capacity to act
and assume all rights and
responsibilities of parental
authority under his
national laws, and has
undergone the
appropriate counseling
from an accredited
counselor in his/her
country;
4. Has not been convicted of
a crime involving moral
turpitude
5. Eligible to adopt under
his/her national law;
6. In a position to provide
the proper care and
support and to give the
necessary moral values
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Domestic Adoption Inter-Country Adoption
application for adoption
and maintains such
residence until the
adoption decree is
entered;
4. He/she has been
certified by his/her
diplomatic or consular
office or any appropriate
government agency that
he/she has the legal
capacity to adopt in
his/her country; and
5. His/her government
allows the adoptee to
enter his/her country as
his/her adopted
son/daughter
Residency and certification
of the aliens qualification
to adopt may be waived on
any of the following:
1. A former Filipino citizen
who seeks to adopt a
relative within the 4
th
civil
degree of consanguinity
or affinity;
2. One who seeks to adopt
the legitimate
son/daughter of his/her
Filipino spouse;
3. If one spouse seeks to
adopt his/her own
illegitimate
son/daughter: Provided,
however, that the other
spouse has signified
his/her consent thereto;
or
4. If the spouse are legally
separated from each
other
In case husband and wife
jointly adopt, or one
spouse adopts the
illegitimate son/daughter of
the other, joint parental
authority shall be
exercised by the spouses.
Guardian
and example to all his
children, including the
child to be adopted;
7. Agrees to uphold the
basic rights of the child as
embodied under
Philippine laws, the UN
Convention on the Rights
of the Child, and to abide
by the rules and
regulations issued to
implement the provisions
of this Act;
8. Comes from a country
with whom the Philippines
has diplomatic relations
and whose government
maintains a similarly
authorized and accredited
agency and that adoption
is allowed under his/her
national laws;
9. Possesses all the
qualifications and none of
the disqualifications
provided herein and in
other applicable
Philippine laws.
Domestic Adoption Inter-Country Adoption
Only after the termination
of the guardianship and
clearance of his/her
financial accountabilities
Who may be adopted
1. Any person below 18
years of age who has
been administratively or
judicially declared
available for adoption;
2. Legitimate son/daughter
of one spouse by the
other spouse
3. Illegitimate child by a
qualified adopter to
improve his/her status to
that of legitimacy;
4. A person of legal age if,
prior to the adoption,
said person has been
consistently considered
and treated by the
adopter(s) as his/her
own child since minority;
5. A child whose adoption
has been previously
rescinded; or
6. A child whose biological
or adoptive parent(s)
has died: Provided that
no proceedings shall be
initiated within 6 months
from the time of death of
said parent(s).
Only a legally free child may
be the subject of inter-
country adoption.
Where to file application
Family Court of the place
where the adopter resides
After filing: The petition
shall not be set for hearing
without a case study report
by a licensed social
worker.
RTC (Family Court) having
the jurisdiction over the
child, or with the Inter-
Country Adoption Board,
through an intermediate
agency, whether
governmental or an
authorized and accredited
agency, in the country of the
prospective adoptive
parents.
After filing: (a) if filed in the
Family Court, it shall
determine the sufficiency of
petition in respect to form
and substance, if sufficient,
the petition is transmitted to
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Domestic Adoption Inter-Country Adoption
Inter-Country Adoption
Board; (b) if petition is filed
with Inter-Country Adoption
Board, it shall conduct the
matching of the applicant
with an adoptive child; (c)
after matchmaking, the child
is personally fetched by the
applicant for the trial
custody which takes place
in the foreign country where
the adopter resides.
What Petition for Adoption may include
1. Prayer for change of
name;
2. Ratification of simulated
birth;
3. Declaration that the child
is a foundling,
abandoned, dependent
or neglected child.
Only petition for adoption
Annexes
Income tax returns, police
clearance, character
reference, family picture,
birth certificate of the
adopter are not required to
be annexed in the petition
Income tax returns, police
clearance, character
reference, family picture,
birth certificate of the
adopter are required to be
annexed in the petition
Publication
Petition must be published
at least once a week for 3
successive weeks in a
newspaper of general
circulation in the province
or city where the court is
situated
No publication requirement
Supervised Trial Custody
Supervised trial custody
period in the Philippines for
at least 6 months (Court
may reduce period or
exempt parties from trial
custody).
Supervised trial custody in
the country of adopter for
at least 6 months and is
mandatory before a decree
of adoption is issued
(expenses are borne by the
adopter).
If unsuccessful, the Board
shall look for another
prospective applicant.
Repatriation of the child is to
be resorted only as a last
resort; If successful, the
Board shall transmit a
Domestic Adoption Inter-Country Adoption
written consent for the
adoption to be executed by
the DSWD, and the
applicant then files a petition
for adoption in his/her
country.
Decree of Adoption
Issued by the Family Court
having jurisdiction over the
case.
Issued by a foreign court
Penalties
Any government official,
employee or functionary
who shall be found guilty of
violating any of the
provisions of this adoption
laws shall automatically
suffer suspension until the
resolution of the case
Same
Under the domestic adoption act of 1998, the adopter can
no longer rescind the adoption. He can merely disinherit
the adoptee in accordance with the provisions of the Civil
Code (Art. 919, Civil Code).
Rescission relates only as to the date of the judgment.
Hence, vested rights prior to rescission should be
respected (Sec. 20, Art. VI, R.A. No. 8552).
Applicability: The grounds for revocation of an adoption
refer only to an adoption validly decreed, not to an
adoption void from the beginning because tainted with
fraud (Ragudo v. Pasno, G.R. No. L-16642, April 18,
1962).
Who files:
1. Adoptee
a. Over 18 years of age; or
b. If still a minor with assistance of DSWD.
2. Guardian or counsel, if over 18 but incapacitated
(Sec.19).
Grounds for rescission (PASA)
1. Repeated physical violence and verbal maltreatment by
the adopter despite having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment or failure to comply with parental
obligations (Sec.19).
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Court order fixing the date and place for
hearing and ordering the Sheriff to produce
the alleged insane person in the hearing
Petition for commitment filed in RTC
Judgment granting/denying the Petition

Service of Notice of the Court Order to
the alleged insane person and to the
person who has custody of him/her
Hearing on the Petition
Venue: Family Court of the city or province where the
adoptee resides (Sec.20).
Note: Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from the adoption. A
subsequent petition for revocation of adoption is neither a
continuation of nor an incident in the proceedings for
adoption but an entirely new proceeding. It would appear
that this petition may be filed in a court other than the
court which issued the adoption (De la Cruz v. De la Cruz,
L-19391, 29 September 1964).
Period within which to file verified petition (Sec.21):
Within 5 YEARS from reaching the age of majority or after
recovery from incompetency.
Adverse party shall file his answer within 15 days from
receipt of order of court requiring him to answer (Sec. 22).
The court does not have jurisdiction to annul after the
period fixed by the Rule, a decree of adoption. For
reasons of public order, judicial litigations must have an
end; hence, decisions must not be changed after the
expiration of the period, it being beyond the jurisdiction or
control of courts (Dayrit v. Piccio, G.R. No. L-7858,
October 26, 1955).
Effects of Judgment of Rescission (PReVS-NC)
1. Parental authority of biological parent or legal custody
of DSWD will be restored;
2. Reciprocal rights of adoptee and adopter will be
extinguished;
3. Vested rights acquired prior to judicial rescission shall
be respected;
4. Successional rights shall revert to its status prior to
adoption, as of the date of judgment of judicial
rescission;
5. Adoptee shall use the name stated in his original birth
or foundling certificate;
6. Civil registrar will reinstate his original birth or foundling
certificate.
Agreement between the adopter and adopted: A
subsequent agreement between them nor between
adopter and natural parents cannot by itself effectuate the
revocation of adoption (Herrera, p. 442).
Collateral attack on the validity of adoption: The
settled rule is that a finding that the requisite jurisdictional
fact exists, whether erroneous or not, cannot be
questioned in a collateral proceeding, for a presumption
arises in such cases where the validity of the judgment is
thus attacked that the necessary jurisdictional facts were
proven (Herrera, p. 442).
Procedure for the Hospitalization of Insane Persons
Application of the rule: The rule is applicable only when
the hospitalization of the insane person is for the public
welfare or for the welfare of said person, who in the
judgment of the Director of Health, is insane, provided that
the one who has charge of him is opposed to such
confinement (Herrera. P. 462).
Hospitalization of the
Insane (Rule 101)
Guardianship
(Rules 92-97)
For the protection of
protecting the community at
large and in the nature of
police regulations (Herrera,
p. 463).
For the purpose of
protecting the person and
the estate of the insane
(Herrera, p. 463).
SECTION 1. VENUE. PETITION FOR COMMITMENT
Venue: RTC of province where the person alleged to be
insane is found.
Who files: Director of Health with the assistance of city or
provincial prosecutor.
RULE 101
PROCEEDI NGS FOR
HOSPI TALI ZATI ON OF INSANE
PERSONS
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Insanity
A condition of the mind which is so impaired in function or
so deranged as to induce a deviation from normal conduct
on the person so afflicted.
Requisites:
1. Director of Health is of the opinion that the commitment
of the person alleged to be insane is for public welfare
or for the welfare of said person;
2. Such person or the one having charge of him is
opposed to his being taken to a hospital or asylum.
SECTION 2. ORDER FOR HEARING
1. The court shall fix a date and place for hearing where
all concerned may appear to contest the petition;
2. Copies of the notice of hearing shall be served upon:
a. The person alleged to be insane; and
b. The one having charge of him, or on such of his
relatives residing in the province/city as the judge
may deem proper.
3. The court shall order the sheriff to produce the alleged
insane person (if possible) on the date of hearing;
4. Upon satisfactory proof that the commitment is
necessary and that his relatives are unable to take
proper custody and care of him, the court shall order his
commitment in a hospital/asylum;
5. The court shall make proper provisions for the custody
of the wards property until a guardian is properly
appointed.
Right of the insane person to notice and hearing:
Ordinarily, the person whose liberty is sought to be
restrained is entitled by law to proper notice to such
proceeding and by force of statute other persons may be
entitled to notice. While it has been held that want of
notice does not render the proceedings invalid and that
the commitment is not subject to collateral attack, it has
also been held that want of notice renders the proceeding
void or at least, is good ground for vacating the order of
commitment (Herrera, p. 464).
SECTION 3. HEARING AND JUDGMENT
Burden of proof: In all actions and proceedings, the
burden of proving insanity is on the plaintiff who alleges it;
but where it is set up as an affirmative defense, the
burden of proving rests on the defendant.
Estate of the insane person: Pending an appeal from
the judgment declaring a person to be insane, the trial
court has jurisdiction to order a third party to appear and
show cause why the property of the insane should not be
delivered to the guardian. It is the duty of the court to
protect the property of the insane pending the appeal
(Mercader v. Wislizenus, G.R. No. L-11739, August 25,
1916).
SECTION 4. DISCHARGE OF INSANE
Director of Health may file this petition in the RTC which
ordered the commitment, when he is of the opinion that
the person is permanently or temporarily cured or may be
released without danger.
The Health Secretary cannot order release without the
approval of the RTC. On the other hand, the RTC cannot
order release without recommendation from the Health
Secretary (Chin Ah Foo v. Concepcion, G.R. No. L-33281,
March 31, 1930).
SECTION 5. ASSISTANCE OF FISCAL IN THE
PROCEEDING
Certiorari, Prohibition
and Mandamus
Habeas Corpus
Special Civil Action (Rule
65)
Special Proceeding
It reaches the record but
not the body; concerned
with errors committed by a
court.
It reaches the body but not
the record; inquiry on the
legality of the detention.
Direct attack. Collateral attack.
Failure of respondent to file
comment will not be
punished by contempt and
will not even be declared in
default.
Failure to file return
constitutes contempt
(indirect).
Court and prevailing party
are named as respondents.
Respondent is the detainer.
Kinds of Writ of Habeas Corpus
1. Preliminary citation If the person is detained under
governmental authority and the illegality of his detention
is not patent from the petition for the writ, the court
issues the citation to the government officer having
custody to show cause why the writ of habeas corpus
should not issue.
2. Peremptory writ If the cause of the detention
appears to be patently illegal. Noncompliance with this
is punishable.
RULE 102
HABEAS CORPUS
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Procedure for the Issuance of the Writ of Habeas
Corpus under Rule 102
SECTION 1. TO WHAT HABEAS CORPUS EXTENDS
1. Cases of illegal confinement or detention by which a
person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is
withheld from the person entitled thereto.
Note: Actual physical restraint is not required; any
restraint which will prejudice freedom of action is sufficient
(Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
Writ of Habeas Corpus
A writ directed to the person detaining another and
commanding him to produce the body of the prisoner at a
certain time and place, with the day and the cause of his
caption and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall
consider in that behalf (Ilusorio v. Bildner, G.R. No.
139789, May 12, 2000).
The function of the special proceeding of habeas corpus
is to inquire into the legality of ones detention. In all
petitions for habeas corpus, the court must inquire into
every phase and aspect of petitioners detention from
the moment petitioner was taken into custody up to the
moment the court passes upon the merits of the petition
and only after such a scrutiny can the court satisfy itself
that the due process clause of our Constitution has been
satisfied (Bernarte v. Court of Appeals, G.R. No. 107741.
October 18, 1996).
When availed of (As a consequence of a judicial
proceeding):
1. There has been a deprivation of a constitutional right
resulting in the restraint of a person;
2. The court had no jurisdiction to impose the sentence;
3. An excessive penalty has been imposed, as such
sentence is void as to such excess;
4. Where the law is amended, as when the penalty is
lowered. Obtain freedom after serving minimum
sentence when the penalty under an old law has been
reduced by an amendatory law (Cruz v. Director of
Prisons, G.R. No. L-6497, November 3, 1910);
5. Denial of right to a speedy trial (since it is jurisdictional);
6. Where the results of post-conviction DNA testing are
favorable to the convict.
7. Enable the parents to regain custody of a minor child,
even if the latter be in the custody of a third person of
her own free will (Salvaa v. Gaela, G.R. No. L-341155,
February 21, 1931);
8. In determining the constitutionality of a statute (People
of the Philippines v. Vera, G.R. No. L-45685, November
16,1937);
9. When testing the legality of an aliens confinement and
proposed expulsion from the Philippines (Lao Tang Bun
v. Fabre, G.R. No. L-1673, October 22, 1948);
10. In permitting an alien to land in the Philippines (Lim
Cheng v. Insular Collector of Customs, G.R. No.
16406, September 13, 1920);
11. In determining the legality of an extradition (United
States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425,
December 6, 1886).
Nature of the petition: Petition for habeas corpus, which
is an inquisition by the government, at the suggestion and
instance of an individual, most probably, but still in the
name and capacity of the sovereign is like a proceeding in
rem. It is also instituted for the purpose of fixing the status
of a person and that there can be no judgment entered
against anybody since there is no real plaintiff and
defendant (Alimpoos v. Court of Appeals, G.R. No. L-
27331, July 30, 1981).
1. It is not in the nature of a writ of error; nor intended as
substitute for the trial courts function. The writ cannot
be used to investigate and consider questions of error
that might be raised relating to procedure or on the
merits.
2. It cannot take the place of appeal, certiorari or writ of
error.
3. The inquiry in a habeas corpus proceeding is
addressed to the question of whether the proceedings
and the assailed order are, for any reason, null and
void.
Petition alleging the illegal confinement or
detention.
Issuance of the writ by the court having jurisdiction.
Service of the writ by leaving the original with the
person to whom it is directed and preserving a
copy on which to make return of service.
Hearing by the court.
Recommitment, bail or discharge of the detained
person.
Execution of the writ by delivering the body of the
person detained to the court and return of service.
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4. The writ is not ordinarily granted where the law provides
for other remedies in the regular course, and in the
absence of exceptional circumstances.
5. Habeas corpus should not be granted in advance of
trial.
6. Habeas corpus is a summary remedy.
7. The writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who
holds him in what is alleged to be the unlawful authority.
Hence, the only parties before the court are the
petitioner (prisoner) and the person holding the
petitioner in custody, and the only question to be
resolved is whether the custodian has authority to
deprive the petitioner of his liberty. The writ may be
denied if the petitioner fails to show facts that he is
entitled thereto ex merito justicias.
8. A writ of habeas corpus, which is regarded as a
palladium of liberty is a prerogative writ which does
not issue as a matter of right but in the sound discretion
of the court. It is, however, a writ of right on proper
formalities being made by proof. Resort to the writ is not
to inquire into the criminal act of which a complaint is
made but unto the right of liberty, notwithstanding the
act, and the immediate purpose to be served is relief
from the illegal restraint.
Purpose: The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal (Moncupa v.
Enrile, G.R. No. 63345, January 30, 1986).
The ultimate purpose of the writ of habeas corpus is to
relieve a person from unlawful restraint (Castriciones v.
Chief of Staff of Armed forces of the Philippines, G.R. No.
65731, September 28, 1989).
The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom. And any further rights of the
parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty
(Villavicencio v. Lukban, G.R. No. L-14639, March 25,
1919).
Grounds for suspension of the privilege of the writ of
habeas corpus under the Constitution
1. Invasion, when public safety requires it;
2. Rebellion, when public safety requires it (Article VII,
Section 18 of the 1987 Constitution)
In cases of illegal confinement or detention
General rule: The release, whether permanent or
temporary, of a detained person renders the petition for
habeas corpus moot and academic.
Exception: When there are restraints attached to his
release which precludes freedom of action, in which case
the court can still inquire into the nature of his involuntary
restraint (Villavicencio v. Lukban, G.R. No. L-
14639, March 25, 1919).
In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
166682, November 27, 2009), the Court held that the
mere production of child in the habeas corpus case does
not warrant outright dismissal. A trial to determine who
had rightful custody over the child should be conducted by
the court.
Voluntary Restraint
General Rule: Writ not available if restraint is voluntary
(Kelly v. Director of Prisons, G.R. No. L-20478, March 14,
1923).
Exception: Writ will lie to enable the parents (or person
having substituted parental authority) to recover custody
of a minor child although she is in custody of a 3
rd
person
on her own volition (Tijing v. Court of Appeals, G.R. No.
125901, March 8, 2001).
Note: Voluntariness is viewed from the point of view of the
person entitled to custody.
When petition for habeas corpus not proper:
1. For asserting or vindicating denial of right to bail;
2. For correcting errors in appreciation of
facts/appreciation of law.
Whether the petition for the writ of habeas corpus
may be properly filed together with the petition for
certiorari and mandamus: The writs of habeas corpus
and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of the
higher courts.
Hence, a writ of habeas corpus may be used with the writ
of certiorari for the purpose of review (Galvez v. Court of
Appeals, G.R. No. 114046, October 24, 1994).
SECTION 2. WHO MAY GRANT THE WRIT
The RTC, CA, and SC have concurrent jurisdiction to
issue writs of habeas corpus. The MTC, by virtue of
special jurisdiction under B.P. Blg. 129, can issue the writ
in case there is no available RTC judge. Hierarchy of
courts is not observed.
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The writ issued by the RTC is enforceable within its
territorial jurisdiction. While the writ issued by CA or Sc is
enforceable anywhere in the Philippines.
The Sandiganbayan may issue writs of habeas corpus
only if it is in aid of its appellate jurisdiction.
This provision is another exception to the rule that
processes of the Regional Trial Court are enforceable
throughout the Philippines (Regalado, p. 176).
Family Courts have exclusive jurisdiction to issue writs
of habeas corpus involving custody of minors.
The use of habeas corpus, not a petition for mandamus,
to test the legality of an aliens detention and proposed
deportation from the Philippines is a settled practice
because aside from being thorough and complete, it
affords prompt relief from unlawful imprisonment
(Bisschop v. Galang, G.R. No. L-18365, May 31, 1963).
A petition for habeas corpus cannot be granted if the
accused has only served the minimum of his sentence as
he must serve his sentence up to its maximum term
(Office of the Court Administrator v. Judge Perello, A.M.
No. RTJ-05-1953, 24 December 2008).
Scope of effectivity
Collegiate Court RTC
Enforceable throughout the
Philippines.
Enforceable only within
their respective judicial
region.
Returnable to any court. Returnable only to itself.
Jurisdiction in cases of habeas corpus with respect to
custody of minors: Although the Family Court where the
petitioner resides or where the minor may be found has
exclusive and original jurisdiction to hear petitions for
habeas corpus with respect to custody of minors, the
Supreme Court and the Court of Appeals can take
cognizance of such petition in order that it can be
enforceable within the Philippines.
However, the return can be heard in the FC/RTC (if there
is no FC in the judicial region) and there is no need to file
a separate petition for custody because the issue can be
ventilated in the petition for the writ.
SECTION 3. REQUISITES FOR APPLICATION
THEREFOR
Who may apply:
1. Party for whose relief it is intended; or
2. Some person on his behalf.
Verified petition must set forth:
1. That the person in whose behalf the application is made
is imprisoned or restrained of his liberty;
2. The name of the person detaining another;
3. The place where he is imprisoned or restrained of his
liberty;
4. The cause of his detention;
5. The verified petition must be signed.
Note: The formalities required for petitions for habeas
corpus must be construed liberally. Strict compliance with
the technical requirements for a habeas corpus petition
may be dispensed with where the allegations in the
application are sufficient to make out a case for habeas
corpus (Fletcher v. Director of Bureau of Corrections,
UDK-14071, July 17, 2009).
The petition for the writ is required to be verified but the
defect in form will not be fatal. In fact, the Supreme Court
has held that it is the duty of a court to issue the writ if
there is evidence that a person is unjustly restrained of his
liberty within jurisdiction even if there is no application
(Villavicencio v. Lukban, supra).
It is necessary, however, that the person in whose behalf
the petition is filed is under actual and effective restraint or
deprivation of liberty (Gonzales v. Viola, G.R. No. L-
43195, August 23, 1935).
SECTION 4. WHEN WRIT NOT ALLOWED OR
DISCHARGED AUTHORIZED
(JUCIT)
1. If jurisdiction appears after the writ is allowed;
2. If the person is in the custody of an officer under
process issued by a court or by virtue of a judgment or
order of a court of record which has jurisdiction to issue
the process, render the judgment or make the order;
3. If the person is charged with or convicted of an offense
in the Philippines;
4. If the person is suffering imprisonment under lawful
judgment.
5. Three (3)-day detention of a suspect for three (3) days
without charge (Sec. 18, Ra No. 9372 Human Security
Act of 2007 to take effect on July 14, 2007).
Supervening events may bar release: Even if the arrest
of a person is illegal, supervening events may bar release
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or discharge from custody. What is to be inquired into is
the legality of his detention as of, at the earliest, the filing
of the application for the writ of habeas corpus, for even if
the detention is at its inception illegal, it may, by reason of
some supervening events such as the instances
mentioned in Sec. 4, be no longer illegal at the time of the
filing of the application (Velasco v. Court of Appeals, G.R.
No. 118644, July 7, 1995).
Note: Posting of bail is not a waiver. Under the Revised
Rules on Criminal Procedure, as application for bail is not
necessarily a bar to challenge the validity of the arrest
(Sec. 26, Rule 114).
SECTION 5. WHEN WRIT MUST BE GRANTED AND
ISSUED
Procedure for grant of writ: (VACS RH)
1. Verified petition signed by the party for whose relief it is
intended; or by some other person in his behalf;
2. Allowance of writ;
3. Command officer to produce;
4. Service of writ by sheriff or other officer;
5. Return; and
6. Hearing on return.
General Rule: If it appears that the writ should issue, the
clerk of court issues the writ under the courts seal (Sec.
5, Rule 102).
Exception: In emergency cases, the judge may issue the
writ under his own hand and deputize any person to serve
it.
The law even makes it the duty of the court to grant the
writ of habeas corpus, if there is evidence that a person is
unjustly restrained within the courts jurisdiction, though no
application for the writ was made (Villavicencio v. Lukban,
G.R. No. L-14639, March 25,1919).
SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT
TO REQUIRE
A. In case of imprisonment or restraint by an officer:
1. The writ shall be directed to him;
2. The officer shall produce the body of the person
before the court.
3. State the cause of detention and prove his authority.
B. In case of imprisonment or restraint by a person not an
officer:
1. The writ shall be directed to an officer;
2. The officer shall take and produce the body of the
person before the court;
3. The officer shall summon the person detaining
another to appear before the court to show the cause
of the imprisonment or restraint.
SECTION 7. HOW PRISONER DESIGNATED AND
WRIT SERVED
How service is made:
1. By leaving the original of the writ with the person to
whom it is directed or to any person having custody if
the former cannot be found or has not the person in his
custody; and
2. By preserving a copy on which to make return of
service.
The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person of the
respondent by mere service of writ.
SECTION 8. HOW WRIT EXECUTED AND RETURNED
General rule: Officer to whom writ is directed shall
convey the detained person on the day specified in the
writ:
1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same court.
Exception: If the person to be produced has sickness or
infirmity such that he cannot be brought before the court
without danger.
Officer shall:
1. Convey the person so imprisoned before the judge,
unless from sickness or infirmity, such person cannot,
without danger be brought before the court.
2. Make the return of the writ together with the day and the
cause of caption or restraint.
SECTION 9. DEFECT OF FORM
No writ can be disobeyed for defect of form if it
sufficiently states:
1. The person in whose custody or under whose restraint
the party imprisoned or restraint is held; and
2. The court or judge before whom he is to be brought.
SECTION 10. CONTENTS OF RETURN
1. Whether he has or has not the party in his custody
or power, or under restraint;
2. If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause
thereof, set forth at large, with a copy of the writ, order,
execution, or other process, if any, upon which the party
is held;
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3. If the party is in his custody or power or is restrained by
him, and is not produced, particularly the nature and
gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought
before the court or judge;
4. If he has had the party in his custody or power, or under
restraint, and has transferred such custody or
restraint to another, particularly to whom, at what time,
for what cause, and by what authority such transfer was
made.
SECTION 11. RETURN TO BE SIGNED AND SWORN
TO
SECTION 12. HEARING OF RETURN.
ADJOURNMENTS
1. His remedy, upon the return of the writ, the court must
immediately hear the case.
2. The hearing MAY be adjourned by the court for good
causes, provided that conditions upon the safekeeping
of the detained person is laid.
3. If the detained person cannot be produced before the
court, the officer of person detaining must satisfy the
court of the gravity of the alleged sickness or infirmity.
4. During the hearing, the court shall disregard matters of
form and technicalities of the authority or order of
commitment.
The failure of petitioners to file a reply to the return of the
writ warrants the dismissal of the petition because unless
controverted, the allegations on the return are deemed to
be true or admitted (Florendo v. Javier, G.R. No. L-36101,
June 29, 1979).
SECTION 13. WHEN THE RETURN EVIDENCE, AND
WHEN ONLY A PLEA
If detention is by public authority, the return is
considered prima facie evidence of the validity of the
restraint and the petitioner has the burden of proof to
show that the restraint is illegal. As per Rule 131 on legal
presumption that the duty of a public officer is regularly
performed.
If detention is by reason of private authority, the return is
considered only a plea of the facts asserted therein and
the person responsible for the detention has the burden of
proof to establish that the detention is legal and justified.
SECTION 14. WHEN PERSON LAWFULLY
IMPRISONED RECOMMITTED, AND WHEN LET TO
BAIL
Habeas corpus would not lie after the Warrant of
Commitment was issued by the court on the basis of the
Information filed against the accused (Ilagan v. Enrile,
G.R. No. 70748, October 21, 1985).
Once a person detained is duly charged in court, he may
no longer question his detention through a petition for
issuance of a writ of habeas corpus. Would be to quash
the information and/or the warrant of arrest duly issued.
The term court includes quasi-judicial bodies of
governmental agencies authorized to order the persons
confinement, like the Deportation Board of the Bureau of
Immigration (Go v. Ramos, G.R. No. 167569, 4
September 2009).
If the offense is punishable by death, the person lawfully
detained shall not be released, discharged or bailed. If the
offense is not punishable by death, he MAY be
recommitted to imprisonment of admitted to bail in the
discretion of the court or judge (Sec. 14, Rule 102).
SECTION 15. WHEN PRISONER DISCHARGED IF NO
APPEAL
If one is unlawfully imprisoned, the court shall order his
discharge but it shall not be effective until a copy of the
order has been served on the officer or person detaining
the prisoner. If the person detaining him does not appeal,
the prisoner shall be released.
Period of appeal: Within 48 hours from notice of the
judgment or final order appealed from (Sec. 3, Rule 41).
Form of appeal is by notice of appeal.
The release contemplated under the writ of habeas corpus
is one which is free from any involuntary restraint. When
the person so released continues to be denied of one or
more of his constitutional freedoms, where there is
present denial of due process, or where the restraints are
not merely involuntary but appear to be unnecessary, the
person concerned or those acting in his behalf may still
avail themselves again of the privilege of the writ.
(Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
SECTION 16. PENALTY FOR REFUSING TO ISSUE
WRIT, OR FOR DISOBEYING THE SAME
A penalty of PhP1,000 and may be punished for
contempt.
Punishable acts or omissions
1. The Clerk of Court refuses to issue the writ after
allowance by the court and demand;
2. The person directed in the writ:
a. Neglects or refuses to obey or make the return;
b. Makes a false return;
c. Refuses to deliver a true copy of the warrant/order of
commitment, within 6 hours after demand (Sec. 16).
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3. Imprisoning a person set at liberty by the writ, for the
same offense (Sec. 17).
4. Removing a prisoner from one custody to another (Sec.
18).
SECTION 17. PERSON DISCHARGED NOT TO BE
AGAIN IMPRISONED
General Rule: A person who is set at liberty upon a writ of
habeas corpus shall not be again imprisoned for the same
offense.
Exception: He is imprisoned by virtue of lawful order or
process of court having jurisdiction of the offense or
cause.
Whether the State can reserve the power to re-arrest a
person for an offense after a court of competent
jurisdiction has absolved him of the offense:
Ruling: Such a reservation is repugnant to the principle
that the government is one of laws and not of men. Under
this principle, the moment a person is acquitted of a
criminal charge he can no longer be detained or re-
arrested for the same offense (Toyoto v. Ramos, G.R. No.
L-69270 October 15, 1985).
SECTION 18. WHEN PRISONER MAY BE REMOVED
FROM ONE CUSTODY TO ANOTHER
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to jail;
3. By order of proper court or judge directing that he be
removed from one place to another within the
Philippines for trial;
4. In case of fire, epidemic, insurrection or other necessity
or public calamity.
SECTION 19. RECORD OF WRIT, FEES AND COSTS




(A.M. No. 03-04-04-SC)
Who may file the petition: A verified petition for the
rightful custody of a minor may be filed by any person
claiming such right (Sec.2).
Where to file petition: Family Court of the province or
city where the petitioner resides or where the minor may
be found (Sec.3).
The petition may however be filed with the regular court in
the absence of the presiding judge of the Family Court,
provided however that the regular court shall refer the
case to the Family Court as soon as its presiding judge
returns to duty.
The petition may also be filed with the SC, CA, or with any
of its members and, if so granted the writ shall be
enforceable anywhere in the Philippines. The writ may be
made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the
minor may be found for hearing and decision on the
merits.
Contents of verified petition (P-NOS)
1. The personal circumstances of the petitioner and
respondent;
2. The name, age and present whereabouts of the minor
and his or her relationship to the petitioner and
respondent;
3. The material operative facts constituting deprivation of
custody;
4. Such other matters which are relevant to the custody of
minor (Sec.4).
In Sombong v. Court of Appeals, et al. (G.R. No. 111876,
January 31, 1996), the Court laid down the following
requisites in petitions for habeas corpus involving minors:
1. That the petitioner has the right of custody over the
minor;
2. That the rightful custody of the minor is being withheld
from the petitioner by the respondent; and
3. That it is to the best interest of the minor concerned to
be in the custody of petitioner and not that of the
respondent.
Motion to dismiss is not allowed except on the ground of
lack of jurisdiction over the subject matter or the parties
(Sec.6).
Respondent must file a verified answer within 5 days from
the service of summons and copy of the petition (Sec.7).
Pre-trial is mandatory (Sec.9).
Effects of failure to appear at the pre-trial
1. If the petitioner fails to appear personally at the pre-trial,
the case shall be dismissed, unless his counsel or a
duly authorized representative appears in court and
proves a valid excuse for the non-appearance of the
petitioner;
2. If the respondent has filed his answer but fails to appear
at the pre-trial, the petitioner shall be allowed to present
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his evidence ex-parte. The court shall then render
judgment on the basis of the pleadings and the
evidence thus presented (Sec. 11).
Failure to file the pre-trial brief or to comply with its
required content shall have the same effect as failure to
appear at the pre-trial (Sec. 10).
Provisional order awarding custody: As far as
practicable, the following order of preference shall be
observed in the award of custody: (BEG BAO)
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the minor over
seven years of age and of sufficient discernment unless
the parent chosen is unfit;
3. The grandparent or if there are several grandparents,
the grandparent chosen by the minor over seven years
of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified;
4. The eldest brother or sister over twenty one (21) years
of age unless he or she is unfit or disqualified;
5. The actual custodian of the minor over twenty one (21)
years of age, unless the former is unfit or disqualified;
or
6. Any other person or institution the court may deem
suitable to provide proper care and guidance for the
minor (Sec.13).
Temporary visitation rights: The court shall provide in
its order awarding provisional custody appropriate
visitation rights to the non - custodial parent or parents
unless the court finds said parent or parents unfit or
disqualified (Sec.15).
Hold Departure Order: The minor child subject of the
petition shall not be brought out of the country without
prior order from the court while the petition is pending.
The Court, motu proprio or upon application under oath,
may issue an ex parte hold departure order (Sec.16).
Note: The court may also issue a Protection Order
(Sec.17).
Appeal : Notice of appeal within 15 days from notice of
denial of motion for reconsideration or new trial (Sec.19).
Note: No appeal shall be allowed unless a motion for
reconsideration or new trial has been filed.
Petition for Writ of Habeas Corpus
Shall be enforceable within its judicial region to which the
Family Court belongs (Sec. 20).
(A.M. No. 07-9-12-SC, September 25, 2007)
Writ of Amparo
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 covers extralegal killings and enforced disappearances
or threats thereof (applicable in pending cases due to the
remedial nature of the writ).
Extralegal Killings
Killings committed without due process of law (e.g.
salvage, summary and arbitrary executions).
Enforced Disappearances
Arrest, detention or abduction of a person by a
government officer or organized groups or private
individuals acting with direct or indirect acquiescence of
the government; refusal of the state to disclose the fate or
whereabouts of the person concerned or refusal to
acknowledge the deprivation of liberty which places such
persons outside the protection of law.
1. Writ of Amparo (to protect) originated in Mexico;
2. Amparo Libertad for the protection of personal
freedom equivalent to Habeas Corpus writ;
3. Amparo Contra Leyes for judicial review of
constitutionality of statutes;
4. Amparo Casacion for judicial review of
constitutionality and legality of judicial decisions;
5. Amparo Administrativo for judicial review of
administrative actions; and
6. Amparo Agrario protection of peasants rights
derived from agrarian reform process (Secretary of
National Defense v. Manalo, G.R. No. 180906, October
7, 2008).
Limited to life, liberty and security because there are
other enforced remedies.
Broad enough to encompass both actual and threatened
violation of human rights.
Who may file (order of preference): 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;
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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.
Filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar petitions.
Likewise, the filing of the petition by an authorized party
on behalf of the aggrieved party suspends the right of all
others, observing the order established herein (Sec. 2).
Ratio: To prevent the indiscriminate and groundless filing
of petitions for amparo which may even prejudice the right
to life, liberty or security of the aggrieved party.
Where to file:
1. Regional Trial Court where the threat, act or omission
was committed or any of its elements occurred;
2. With the Sandiganbayan, Court of Appeals, the
Supreme Court or any justice of such courts.
This writ shall be enforceable anywhere in the Philippines.
Note: Basically similar to the Rule on petitions for the writ
of habeas corpus. It is, however, different because it
includes the Sandiganbayan for the reason that public
officials and employees will be respondents in amparo
petitions.
Contents of the verified petition
1. Personal circumstances of the petitioner and of
respondent responsible for the threat, act or omission;
2. Violated or threatened right to life, liberty or security of
the party aggrieved. Stating in detail the circumstances;
3. Specify the names, personal circumstances of the
investigating authority or individuals, as well as the
manner and conduct of investigation;
4. Actions and recourses taken by the petitioner to
determine the whereabouts of aggrieved party and
identity of the person responsible for the threat, act or
omission;
5. The relief prayed for;
6. A general prayer for other just and equitable reliefs may
be included (Sec. 5).
Where returnable; enforceable
1. When issued by the RTC or an judge thereof, the writ is
returnable before such court or judge;
2. When issued by the Sandiganbayan, Court of Appeals
or any of their justices, it may be returnable to such
court or any justice thereof, or to any RTC where the
threat, act or omission was committed or any of its
elements occurred;
3. When issued by the Supreme Court or any of its
justices, it may be returnable to such Court or any
justice thereof, or before the Sandiganbayan or the
Court of Appeals or any of their justices, or to any RTC
in the place where the threat, act or omission was
committed or any of its elements took place (Sec.3).
Note: Due to the extraordinary nature of the writ, which
protects the mother of all rights the right to life the
petition may be filed on any day, including Saturdays,
Sundays and holidays; and at any time, from morning until
evening.
No docket fees
Ratio: The enforcement of these sacrosanct rights should
not be frustrated by lack of finances.
Issuance of the Writ: Upon the filing of the petition, the
court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to issue. The writ
shall be served immediately.
The writ should set the date and time for a summary
hearing of the petition which shall not be later than seven
(7) days from the date of its issuance (Sec. 13).
Punishment for refusal to issue writ: Contempt without
prejudice to other disciplinary actions (Sec. 16).
Return
The Return serves as the responsive pleading to the
petition. Unlike an Answer, the Return has other purposes
aside from identifying the issues in the case. Respondents
are also required to detail the actions they had taken to
determine the fate or whereabouts of the aggrieved party
(De Lima v. Gatdula, G.R. No. 204528, February 19,
2013).
Contents of return
1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty
and security of the aggrieved party, through any act or
omission;
2. The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
threat, act or omission;
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and
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4. If the respondent is a public official or employee, the
return shall further state the actions that have been or
will still be taken:
a. To verify the identity of the aggrieved party;
b. To recover and preserve evidence related to the
death or disappearance of the person identified in the
petition which may aid in the prosecution of the
person or persons responsible.
c. To identify witnesses and obtain statements from
them concerning the death or disappearance;
d. To determine the cause, manner, location and time of
death or disappearance as well as any pattern or
practice that may have brought about the death or
disappearance;
e. To identify and apprehend the person or persons
involved in the death or disappearance; and
f. To bring the suspected offenders before a competent
court.
The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the
case.
Respondent shall file a verified written return together with
supporting affidavits within 72 hours after service of the
writ. The period to file a return cannot be extended except
on highly meritorious grounds (Sec. 9).
No general denial the policy is to require revelation of all
evidence relevant to the petition.
Avoids the ineffectiveness of the writ of habeas corpus,
where often the respondent makes a simple denial in the
return that he or she has custody over the missing person,
and the petition is dismissed.
Omnibus waiver rule
The respondent must plead all his defenses in the return.
Failure to do so shall operate as a waiver of such
defenses not therein pleaded (Sec. 10).
Prohibited pleadings and motions
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against
any interlocutory order (Sec. 11).
The filing of motion for new trial and petition for relief from
judgment are allowed because denial of these remedies
may jeopardize the rights of the aggrieved party.
(Annotation to the Writ of Amparo).
Effect of failure to file return: The court, justice or judge
shall hear the petition ex parte.
Procedure for hearing: The hearing shall be summary,
but the judge may call a preliminary conference to simplify
the issues and determine the possibility of obtaining
stipulations and admissions from the parties.
The hearing shall be held on a daily basis until completed
and is given the same priority as that of petitions for writ of
habeas corpus.
Interim reliefs available to petitioner (TIP)
1. Temporary protection order The court, justice or
judge, upon motion or motu proprio, may order that the
petitioner or the aggrieved party and any member of the
immediate family be protected in a government agency
or by an accredited person or private institution capable
of keeping and securing their safety. If the petitioner is
an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be
extended to the officers involved.
2. Inspection order - The court, justice or judge, upon
verified motion and after due hearing, may order any
person in possession or control of a designated land or
other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon.
3. Production order - The court, justice or judge, upon
verified motion and after due hearing, may order any
person in possession, custody or control of any
designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the return,
to produce and permit their inspection, copying or
photographing by or on behalf of the movant.
Interim reliefs available to the respondent: Upon
verified motion of the respondent and after due hearing,
the court, justice or judge may issue an inspection order
or production order. A motion for inspection order shall
be supported by affidavits or testimonies of witnesses
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having personal knowledge of the defenses of the
respondent.
Burden of proof and standard of diligence required:
Parties shall establish their claims by substantial
evidence.
If respondent is a private individual or entity, must prove
that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of
duty. If a public official or employee, extraordinary
diligence is required.
Presumption of regularity in the performance of official
duty cannot be invoked which is in accord with current
jurisprudence on custodial interrogation and search
warrant cases.
There is no need to show that petitioner has exhausted
prior administrative remedies.
Judgment: The court shall render judgment within ten
(10) days from the time the petition is submitted for
decision.
No enforcement of 5 days like in Habeas Data (Sec. 18).
Appeal: Within 5 days to appeal to the SC under Rule 45
and may raise questions of fact or law or both (Sec. 19).
Ratio: Amparo proceedings involve determination of facts
considering its subjectextralegal killings and enforced
disappearances.
Judgment subject to appeal via Rule 45
If the allegations are proven with substantial evidence, the
court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate. The judgment should
contain measures, which the judge views as essential for
the continued protection of the petitioner in the Amparo
case. These measures must be detailed enough so that
the judge may be able to verify and monitor the actions
taken by the respondents. Is it this judgment that could be
subject to appeal to the Supreme Court via Rule 45 (De
Lima v. Gatdula, G.R. No. 204528, February 19, 2013).
The privilege of the Writ of Amparo should be
distinguished from the actual order called the Writ of
Amparo. The prvilege includes availment of the entire
procedure outlined in AM No. 07-9-12-SC (De Lima v.
Gatdula, G.R. No. 204528, February 19, 2013).
Archiving and revival of cases: The court shall not
dismiss the petition, but shall archive it, if upon its
determination it cannot proceed for a valid cause such as
the failure of petitioner or witnesses to appear due to
threats on their lives (Liberalized rule on dismissal).
The petition shall be dismissed with prejudice upon failure
to prosecute the case after the lapse of two (2) years from
notice to the petitioner of the order archiving the case
(Sec. 20).
Institution of separate actions: Filing of a petition for the
writ of amparo shall not preclude the filing of separate
criminal, civil or administrative actions (Sec. 21).
Effect of filing of a criminal action: When a criminal
action has been commenced, no separate petition for the
writ shall be filed. The reliefs under the writ shall be
available by motion in the criminal case. The procedure
under the Rule on the Writ of Amparo shall govern the
disposition of reliefs available under the writ Sec. 22).
Consolidation: When a criminal action is filed
subsequent to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter
shall be consolidated with the criminal action. After
consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the
petition (Sec. 23).
Doctrine of command responsibility in amparo
proceedings: It would be inappropriate to apply to these
proceedings the doctrine of command responsibility, as a
form of criminal complicity through omission, for the
criminal liability is beyond the reach of amparo.
It does not determine guilt nor pinpoint criminal culpability
for the disappearance, threats thereof or extrajudicial
killings; it determines responsibility, or at least
accountability, for the enforced disappearance, threats
thereof or extrajudicial killings for purposes of imposing
the appropriate remedies to address the disappearance or
extrajudicial killings.
If command responsibility were to be invoked and applied
to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is
accountable for, and has the duty to address, the
disappearance or harassments complained of, so as to
enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights
covered by the writ of amparo (Rubrico, et al. v.
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Macapagal-Arroyo, et al., G.R. No. 183871, February 18,
2010).
Note: The writ of amparo, in its present form, is confined
only to these two instances of extralegal killings and
enforced disappearances (Rev. Fr. Reyes v. Court of
Appeals, et al., G.R. No. 182161, December 3, 2009).
It is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown
and proved by substantial evidence that the
disappearance was carried out by, or with the
authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a
prolonged period of time. Simply put, the petitioner in an
amparo case has the burden of proving by substantial
evidence the indispensable element of government
participation (Navia v. Pardico, G.R. No. 184467, June 19,
2012).
It is not a writ to protect concerns that are purely property
or commercial (Tapuz, et al. v. Judge Del Rosario, G.R.
No. 182484, June 17, 2008).
(A.M. No. 08-1-16-SC, January 22, 2008)
(Effectivity: February 2, 2008)
Writ of Habeas Data
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 (Sec. 1).
The writ in general is designed to safeguard individual
freedom from abuse in the information age by means of
an individual complaint presented in a constitutional court.
Specifically, it protects the image, privacy, honor,
information, self determination, and freedom of
information of a person (The Philippine Supreme Courts
Bulletin, Benchmark Online November 2007).
Habeas datavis--vis amparo: Habeas data essentially
allows families of victims of enforced disappearance to
petition the courts to compel government and security
officials to allow access to documents about the missing
person. While amparo denies state officials the defense of
denial with which they normally evade petitions for habeas
corpus that families of missing persons file, and compels
them instead to exert efforts to find these missing persons
or face sanctions (Festin, p.213).
Note: The writ of habeas data cannot be invoked in labor
disputes where there is no unlawful violation of the right to
life, liberty, or security (Meralco v. Lim, G.R. No. 184769,
October 5, 2010).
Habeas data cannot be invoked when respondents in the
petition for issuance of the writ are not gathering,
collecting, or storing data or information (Castillo v. Cruz,
G.R. No. 182165, November 25, 2009).
Who may file: Any aggrieved party may file a petition for
the writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition may be
filed by:
1. Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
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 (Sec. 2).
Note: Unlike in amparo, human rights organizations or
institutions are no longer allowed to file the petition.
Where to file:
1. 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.
2. Supreme Court or the Court of Appeals or the
Sandiganbayan when the action concerns public data
files of government offices (Sec. 3).
Where returnable:
When issued by:
1. The RTC or any judge thereof returnable before such
court or judge
2. CA or the Sandiganbayan or any of its justices before
such court or any justice thereof, or to any Regional
Trial Court of the place where the petitioner or
respondent resides, or that which has jurisdiction over
the place where the data or information is gathered,
collected or stored.
3. SC or any of its justices before such Court or any
justice thereof, or before the Court of Appeals or the
Sandiganbayan or any of its justices, or to any Regional
Trial Court of the place where the petitioner or
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respondent resides, or that which has jurisdiction over
the place where the data or information is gathered,
collected or stored (Sec. 4).
Note: The writ of habeas data shall be enforceable
anywhere in the Philippines.
Docket Fees: No docket and other lawful fees shall be
required from an indigent petitioner (Sec. 5).
Note: A petition for a writ of habeas data must be
verified.
Contents of the petition (P-MALRO)
1. Personal circumstances of the petitioner and
respondent;
2. The manner the right of privacy is violated or
threatened;
3. Actions and recourses taken by petitioner to secure the
date or information;
4. Location of the files, registers or database, the
government office, person in charge, in possession and
control of the data, if known;
5. Reliefs prayed for; and
6. Other relevant reliefs as are just & equitable (Sec. 6).
Issuance of the writ: Upon the filing of the petition, the
court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to issue.
Clerk of court (COC) shall issue the writ under the seal of
the court and cause it to be served within three (3) days
from the issuance; or, in case of urgent necessity, the
justice or judge may issue the writ under his or her own
hand, and may deputize any officer or person serve it
(COCs refusal to issue the writ: Contempt without
prejudice to other disciplinary actions) (Secs. 7 & 11).
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than ten
(10) working days from the date of its issuance (Sec. 16).
Return: Respondent shall file a verified written return
together with supporting affidavits within five (5) working
days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons
(General Denial of the allegations in the petition is not
allowed) (Sec. 17).
Contents of return:
1. The lawful defenses such as national security, state
secrets, privileged communication, confidentiality of the
source of information of media and others,
2. In case of respondent in charge, possession or control
of the data or information subject of the petition:
a. A disclosure of the data or information about the
petitioner, the nature of such data or information, and
the purpose for its collection.
b. The steps of actions taken by the respondent to
ensure the security and confidentiality of the data or
information,
c. The currency and accuracy of the data or information
held.
3. Other allegations relevant to the resolution of the
proceeding (Sec. 10).
Effect of failure to file a return: The court shall proceed
to hear the petition ex parte, granting the petitioner such
relief as the petition may warrant unless the court in its
discretion requires the petitioner to submit evidence (Sec.
14).
Note: Making a false return, or refusing to make a return;
or any person who otherwise disobeys or resists a lawful
process or order of the court shall be punished by
contempt (Sec. 11).
Defenses available to respondent
1. National security;
2. State secrets;
3. Privileged communications;
4. Confidentiality of the source of information of media and
others (Sec. 12).
Note: Hearing in chambers may be conducted where the
respondent invokes the abovementioned defenses (Sec.
12).
Prohibited pleadings and motions
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against
any interlocutory order. (Sec. 13)
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Hearing
Summary but the judge may call a preliminary conference
to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties.
When a court may hear the petition in chambers
Where the respondent invokes the defense that:
1. The release of the data or information in question shall
compromise national security or state secrets; or
2. The data or information cannot be divulged to the public
due to its nature or privileged character.
Judgment: Court to render 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 shall enjoin 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 shall be denied.
Upon its finality, judgment enforced within five (5) working
days.
Grant of the writ vs. Grant of the privilege of the writ:
The grant of the writ refers to the decision of the court to
give due course to the petition, require respondents to file
their return and set the petition for hearing. The grant of
the privilege of the writ means that the petition is found
meritorious, the prayers therein are granted and the
petitioner is granted the relief sought.
Return of service: The officer who executed the
judgment shall, within 3 days from its enforcement, make
a verified return to the court.
Contents of the return of service
1. Full statement of the proceedings under the writ; and
2. Complete inventory of the database or information, or
documents or articles inspected, updated, rectified, or
deleted, with copies served on the petitioner and the
respondent.
3. Statement by the officer how the judgment was
enforced and complied with by the respondent; and
4. All the objections of the parties regarding the manner
and regularity of the service of the writ (Sec. 17).
Hearing on officers return: The court shall set the date
with due notice to the parties
Appeal: Within five (5) days to appeal to the SC under
Rule 45 and may raise questions of fact or law or both.
Institution of separate actions: Filing of a petition for the
writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions (Sec. 20).
Consolidation:
1. When a criminal action is filed subsequent to the filing
of a petition for the writ, the latter shall be consolidated
with the criminal action.
2. When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of habeas data,
the petition shall be consolidated with the criminal
action.
After consolidation, the procedure under this Rule shall
continue to govern the disposition of the reliefs in the
petition.
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The relief
under the writ shall be available to an aggrieved party
by motion in the criminal case.
The procedure under this Rule shall govern the disposition
of the reliefs available under the writ of habeas data (Sec.
21).
See Comparative Chart of Habeas Corpus, Writ of
Amparo and Habeas Data on Page 270

Procedure for Change of Name under Rule 103
RULE 103
CHANGE OF NAME
Court order fixing the date and place of hearing
Petition for Change of Name
Hearing on the Petition
Publication of the court order fixing the date and place
of hearing, at least once a week for 3 successive weeks
in a newspaper of general circulation
Judgment granting / denying the change of name.
Copy of the judgment shall be served upon the civil
registrar, who shall annotate the same
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Applicability of Rule 103
An alien can petition for a change of name but he must be
domiciled in the Philippines (Ong Huan Tin v. Republic of
the Philippines, G.R. No. L-20997, April 27, 1967).
The name that can be changed is the name that appears
in the civil register, and not in the baptismal certificate or
that by which the person is known in the community (Ng
Yao Siong v. Republic of the Philippines, G.R. No. L-
20306, March 31, 1966).
Legal separation is not a ground for the female spouse for
a change of name under Rule 103 (Laperal v. Republic of
the Philippines, G.R. No. L-18008, October 30, 1962).
A change of name granted by the court affects only a
petitioner. A separate petition for change of name must be
filed for his/her spouse and children (Secan Kok v.
Republic of the Philippines, G.R. No. L-27621, August 30,
1973).
Sex reassignment is not a valid ground to change ones
first name (applies to both Rule 103 and R.A. No. 9048)
(Silverio v. Republic of the Philippines, G.R. No. 174689,
October 22, 2007).
SECTION 1. VENUE
The RTC of the province where the petitioner has been
residing for 3 years prior to the filing of the petition.
A change of name is a proceeding in rem. Jurisdiction to
hear and determine the petition for change of name is
acquired after due publication of the order containing
certain data (Secan Kok v. Republic of the Philippines,
supra).
The State has an interest in the names borne by
individuals and entries for purposes of identification, and
that a change of name is a privilege and not a right, so
that before a person can be authorized to change his
name given him either in his certificate of birth or civil
registry, he must show proper or reasonable cause, or any
compelling reason which may justify such change (In Re:
Julian Lin Carulasan Wang v. Cebu City Civil Registrar,
G.R. No. 159966, March 30, 2005).
SECTION 2. CONTENTS OF PETITION
1. That petitioner is a bona fide resident of the province
where petition is filed for at least three years prior to the
date of filing;
2. Cause for change of name;
3. Name asked for;
4. All names by which petitioner is known (Secan Kok v.
Republic of the Philippines, supra).
The petition shall be signed and verified by the person
desiring his name changed or some other person in his
behalf.
Requirement of verification is a formal, and not a
jurisdictional requisite. It is not a ground for dismissing
petition.
Under Rule 103, the word person is a generic term
which is not limited to Filipino citizens, but embraces all
natural persons. The rule does not even require that the
citizenship of the petitioner be stated in the petition (Yu v.
Republic of the Philippines, G.R. No. L-20874, May 25,
1966).
All of the applicants aliases must be stated in the
petitions title. Otherwise, it would be a fatal defect (Go
Chiu Beng v. Republic of the Philippines, G.R. No. L-
29574, August 18, 1972).
Jurisdictional requirements
1. The verified petition should be published for three
successive weeks in some newspaper of general
circulation in the province;
2. Both the title or caption of the petition and its body shall
recite:
a. Name/names or aliases of the applicant;
b. Cause for which the change of name is sought;
c. New name asked for (Secan Kok v. Republic of the
Philippines, supra.).
Petition should be filed by applicant upon reaching the
age of majority (Regalado, p. 191).
Ratio: A change of name is a matter of public interest
(Secan Kok v. Republic of the Philippines, supra).
SECTION 3. ORDER FOR HEARING
Hearing shall not be within 30 days prior to an election nor
within 4 months after the last publication of notice of
hearing.
The court shall promulgate an order:
1. Recital of the purpose of the petition;
2. Fix the date and place of hearing; and
3. Direct that a copy of the order be published before the
hearing for once a week for three consecutive weeks in
a newspaper of general circulation.
Effect of discrepancy in the petition and published
order: The defect in the petition and the order, as to the
spelling of the name of the petitioner, is substantial,
because it did not correctly identify the party to said
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proceedings (Tan v. Republic of the Philippines, G.R. No.
L-16384, April 26, 1962).
Grounds for change of name (R-CHEN)
1. Name is ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
2. Consequence of a change of status; e.g. legitimated
child;
3. Habitual and continuous use and has been known since
childhood by a Filipino name, unaware of her alien
parentage;
4. A sincere desire to adopt a Filipino name to erase signs
of former alienage, all in good faith and without
prejudicing anybody; or
5. Necessity to avoid confusion;
Title of petition must contain the following:
1. Official name (birth certificate) be very particular with
the spelling because it may avoid or annul the
proceedings; it is jurisdictional;
2. All aliases; and
3. Name asked for.
Note: All the names or aliases must appear in the title
or caption of the petition, because the reader usually
merely glances at the title of the petition and may only
proceed to read the entire petition if the title is of interest
to him(Secan Kok v. Republic of the Philippines, supra).
The non-inclusion of all the names or aliases of the
applicant in the caption of the order or in the title of the
petition defeats the very purpose of the required
publication (Republic of the Philippines v. Zosa, G.R. No.
L-48762, September 12, 1988).
SECTION 4. HEARING
Who may oppose the petition
1. Any interested person;
2. The Republic of the Philippines through the Solicitor
General or the proper provincial or city prosecutor.
SECTION 5. JUDGMENT
A change of name granted by the court affects only the
petitioner. A separate petition for change of name must be
filed for his wife or children (Secan Kok v. Republic of the
Philippines, supra).
A decree of adoption grants the adoptee the right to use
the adopters surname, if change of first name is so
desired, it must be prayed and alleged in the petition for
adoption (Sec. 16, A.M. No. 02-6-02-SC).
SECTION 6. SERVICE OF JUDGMENT
Civil Registrar of the city or municipality where the court is
situated shall be furnished with a copy of the judgment.
Consequence of a grant to change name: A mere
change of name would not cause a change in ones
existing family relations, nor create new family rights and
duties where none exists before. Neither would it affect a
persons legal capacity, civil status or citizenship. What
would be altered is the word or group of words by which
he is identified and distinguished from the rest of his fellow
men (Ang Chay v. Republic of the Philippines, G.R. No. L-
28507, July 31, 1970).
Note: When the marriage ties or vinculum no longer exists
as in the case of death of a husband or divorce as
authorized by the Muslim Code, the widow or divorcee
need not seek judicial confirmation of the change in her
civil status in order to revert to her maiden name as the
use of her former husbands name is optional and not
obligatory for her. Neither is she required to secure judicial
authority to use the surname of her husband after the
marriage as no law requires it (Yasin v. Sharia District
Court, G.R. No. 94986, 23 February 1995).
Note: Dissolution of corporations should now be filed
with the Securities and Exchange Commission and is
covered by Title XIV, Sections 117 to 122 of the
Corporation Code of the Philippines.
A.M. No. 00-11-03-SC, promulgated on November 21,
2000, designated some RTC branches nationwide (also
known as Corporate courts) to try and decide SEC cases
enumerated under Sec. 5 of P.D. 902-A.
Note: The matter of the filiations of illegitimate children
and the proof thereof is governed by Articles 172 and 173,
in relation to Article 175, of the Family Code.
Voluntary recognition
An admission of the fact of paternity or maternity by the
presumed parent, expressed in the form prescribed by the
RULE 104
VOLUNTARY DI SSOLUTI ON OF
CORPORATI ONS
RULE 105
JUDI CI AL APPROVAL OF
VOLUNTARY RECOGNI TI ON OF
MI NOR NATURAL CHI LDREN
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Civil Code. Its essence lies in the avowal of the parent
that the child is his; the formality is added to make the
admission incontestable, in view of the consequences
(Gapusan Chua v. Court of Appeals, G.R. No. L-46746,
March 15,1990).
Art. 172. The filiation of legitimate children is established
by any of the following:
1. The record of birth appearing in the civil register or a
final judgment; or
2. An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
1. The open and continuous possession of the status of a
legitimate child; or
2. Any other means allowed by the Rules of Court and
special laws (265a, 266a, 267a).
In effect, judicial approval of voluntary recognition is
required only when filiation is proved by:
1. Open and continuous possession of status of a
legitimate child; or
2. Any other means allowed by the Rules of Court and
other special laws (Gono-Javier v. Court of Appeals,
G.R. No. 111994, December 29, 1994).
Art. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during minority
or in a state of insanity. In these cases, the heirs shall
have a period of five years within which to institute the
action.
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is based
on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged
parent.
Note: The rule has already been repealed by the Family
Code, which took effect on August 3, 1988.
There is no need to constitute the family home judicially or
extrajudicially. If the family actually resides in the
premises, it is, automatically considered as a family home
as contemplated by law (Modequillo v. Breva, G.R. No.
86355 May 31, 1990).
Family home
Constituted on a house and lot from the time it is occupied
as a family residence.
The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the
land on which it is situated (Art. 152, NCC).
The family home is deemed constituted on a house and
lot from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to
the extent of the value allowed by law (Art. 153, NCC).
The beneficiaries of a family home are:
1. The husband and wife, or an unmarried person who is
the head of a family; and
2. Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support
(Art. 154, NCC).
The family home shall be exempt from execution, forced
sale or attachment except:
1. For nonpayment of taxes;
2. For debts incurred prior to the constitution of the family
home;
3. For debts secured by mortgages on the premises
before or after such constitution; and
4. For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building (Art. 155, NCC).
RULE 106
CONSTI TUTI ON OF FAMI LY HOME
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Petition for Appointment of Representative
Application for Declaration of absence and
appointment of Trustee or Administrator
Termination of Administration/ Trusteeship
Absentee Incompetent
One who disappears from
his domicile and his
whereabouts being
unknown and without
having left an agent to
administer his property or
the power of agent has
expired.
Includes persons suffering
the penalty of civil
interdiction or who are
hospitalized lepers,
prodigals, deaf and dumb
who are unable to read and
write, those who are of
unsound mind, and persons
who are unable to take care
of themselves and manage
their property by reason of
age, disease, weak mind
and other similar causes.
Order of hearing must be
published once a week for
3 consecutive weeks in a
newspaper of general
circulation in the province
or city where absentee
resides and declaration of
absence will only take
effect 6 months after its
publication in a newspaper
of general circulation
designated by court and in
the Official Gazette.
Notice of petition for
guardianship for non-
resident may be published
when court deems it
proper.
Procedures in the Rule on Absentees
Where to file: RTC where the absentee resided before
his disappearance
Appointment of representative: When a person
disappears, whereabouts are unknown, leaves no agent
or upon expiration of power of agent, during the first two
(2) years.
Declaration of absence and appointment of
administrator: When a person disappears and still
without any news since the receipt of the last news about
him, after two (2) years if without administrator or after five
(5) years if with administrator.
SECTION 1. APPOINTMENT OF REPRESENTATIVE
This rule is based on Articles 381 and 382 of the Civil
Code.
When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an
agent to administer his property, the judge, at the instance
of an interested party, a relative, or a friend, may appoint
a person to represent him in all that may be necessary
(Art. 381, NCC).
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired. (Art. 381, NCC)
The appointment referred to in the preceding article
having been made, the judge shall take the necessary
measures to safeguard the rights and interests of the
absentee and shall specify the powers, obligations and
remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning
guardians (Art. 322).
SECTION 2. DECLARATION OF ABSENCE; WHO MAY
PETITION
This rule is based on Articles 384 and 385 of the Civil
Code.
Art. 384. Two years having elapsed without any news
about the absentee or since the receipt of the last news,
and five years in case the absentee has left a person in
charge of the administration of his property, his absence
may be declared (Art. 384, NCC).
Who may file a petition for appointment of
administrator or trustee:
1. The spouse present;
2. The heirs instituted in a will, who may present an
authentic copy of the same;
3. The relatives who would succeed by the law of
intestacy;
4. Those who have over the property of the absentee
some right subordinated to the condition of his death
(Art. 385, NCC).
Purpose of petition: To appoint an administrator over the
properties of the absentee. Hence, if the absentee left no
properties, such petition is unnecessary.
RULE 107
ABSENTEES
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Ones disqualification as an heir of the absentee does not
inhibit him or her from petitioning for a declaration of
absence or to be appointed as an administrator of the
absentees estate (Noquera v. Villamor, G.R. No. 84250,
July 20, 1992).
It is not necessary that a declaration of absence be made
in a proceeding separate from and prior to a petition for
administration (Reyes v. Alejandro, G.R. No. L-32026,
January 16, 1986).
SECTION 3. CONTENTS OF PETITION
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs instituted
in the will, copy of which shall be presented, and of the
relatives who would succeed by the law of intestacy;
3. The names and residences of creditors and others who
may have any adverse interest over the property of the
absentee;
4. The probable value, location and character of the
property belonging to the absentee.
Period of Absence Consequence
0-2 years
Petition for Appointment of
Representative (unless the
absentee left an agent to
administer his property)
2 years to 7 years
(5 years to 7 years
in case the
absentee left an
agent)
Petition for declaration of absence
and appointment of administrator
or trustee may be filed.
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
Considered dead for all intents and
purposes except for purposes of
succession (if disappeared under
extraordinary circumstances,
considered dead for all purposes,
even succession);
For purposes of Marriage: 4 years
continuous absence shall be
sufficient for present spouse to
remarry, 2 years only under
extraordinary circumstance
SECTION 4. TIME OF HEARING; NOTICE AND
PUBLICATION THEREOF
Copies of the notice of the time and place fixed for the
hearing shall be served upon the known heirs, legatees,
devisees, creditors and other interested persons, at least
ten (10) days before the day of the hearing.
It shall be published once a week for three (3) consecutive
weeks prior to the time designated for the hearing, in a
newspaper of general circulation in the province or city
where the absentee resides, as the court shall deem best.
SECTION 5. OPPOSITION
Oppositor must:
1. State in writing his grounds therefor;
2. Serve a copy thereof to petitioner and other interested
parties on or before the hearing.
SECTION 6. PROOF AT HEARING; ORDER
Art. 386. The judicial declaration of absence shall not take
effect until six months after its publication in a newspaper
of general circulation.
SECTION 7. WHO MAY BE APPOINTED
Appointment of representative/trustee:
1. Spouse present (preferred); or
2. Any competent person.
SECTION 8. TERMINATION OF ADMINISTRATION
Grounds for termination of the administration
1. Absentee appears personally or through an agent;
2. Absentees death is proven and heirs appear;
3. Third person appears showing that he acquired title
over the property of the absentee (Art. 389, NCC).
General rule: No independent action for Declaration of
Presumption of Death.
Exception: The need for declaration of presumptive
death for purposes of remarriage (Art. 41, Family Code).
Note: The Family Code provides that for the purpose of
contracting a second marriage, the present spouse must
file a summary proceeding for the declaration of the
presumptive death of the absentee, without prejudice to
the latters reappearance.
Provisions of the revised rules on evidence on
presumption of death: That after an absence of seven
years, it being unknown whether or not the absentee still
lives, he is considered dead for all purposes, except for
those of succession.
The absentee shall not be considered dead for the
purpose of opening his succession till after an absence of
ten years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order
that his succession may be opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:
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1. A person on board a vessel lost during a sea voyage, or
an aircraft which is missing, who has not been heard of
for four years since the loss of the vessel or aircraft;
2. A member of the armed forces who has taken part in
armed hostilities, and has been missing for four years;
3. A person who has been in danger of death under other
circumstances and whose existence has not been
known for four years;
4. If a married person has been absent for four
consecutive years, the spouse present may contract a
subsequent marriage if he or she has a well-founded
belief that the absent spouse is already dead. In case of
disappearance, where there is danger of death under
the circumstances hereinabove provided an absence of
only two years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must
institute a summary proceeding as provided in the
Family Code and in the rules for a declaration of
presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse (Sec. 3
[w], Rule 131)..


Procedure for cancellation or correction of entries
under Rule 108
SECTION 1. WHO MAY FILE PETITION
Any person interested in any act, event, order or decree
concerning the civil status of persons recorded in the civil
registry.
Where filed: RTC of the province where the
corresponding civil registrar is located.
Proceedings under Rule 108 may be summary or
adversarial:
1. Summary when the correction sought to be made is a
mere clerical error (now governed by R.A. No. 9048).
2. Adversarial - where the rectification affects civil status,
citizenship or nationality of a party or any other
substantial change.
Requisites of adversarial proceedings
1. Petition is filed before the court having jurisdiction over
the impleaded civil registrar and all interested parties;
(Sec.3)
2. The order of the hearing must be published once a
week for three consecutive weeks;
3. Notice thereof must be given to the Civil Registrar and
all parties affected thereby;
4. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or
correction is sought may, within 15 days from notice of
the petition or from the last date of publication of such
notice, file his opposition thereto;
5. Full blown trial.
Proceedings for the correction of entries should not be
considered as establishing ones status in a manner
conclusively beyond dispute. The status corrected would
not have a superior quality for evidentiary purposes. There
is no increase or diminution of substantive right (Chiao
Ben Lim v. Zosa, G.R. No. L- 40252, December 29, 1986).
SECTION 2. ENTRIES SUBJECT TO CANCELLATION
OR CORRECTION
(BMD LAVLAA- NEC JVC)
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;
RULE 108
CANCELATI ON OR CORRECTI ON
OF ENTRI ES I N THE CI VI L
REGI STRY
Petition for Cancellation or Correction of any
entry relating to an act, event order or decree
concerning the civil status
Court order fixing the date and place for Hearing
Publication of the court order at least once a week for
3 successive weeks in a newspaper of general
circulation, with reasonable notice given to persons
named in the petition
Filing of opposition by the civil registrar and any person
having/claiming interest under the entry whose
cancellation/correction is sought, within 15 days from
notice of the petition or from the last date of publication
of the notice
Hearing on the petition
Judgment granting/denying the petition. Copy of
the judgment shall be served upon the civil
registrar, who shall annotate the same
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13. Judicial determination of filiation;
14. Voluntary emancipation of a minor;
15. Change of name.
Even substantial errors in a civil registry may be corrected
and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate
adversary proceedings (Republic of the Philippines v.
Valencia, G.R. No. L-32181, March 5, 1986).
Adversarial proceeding
One that has opposing parties; contested as distinguished
from an ex parte application, one of which the party
seeking relief has given legal warning to the other party,
and afforded the latter an opportunity to contest it
(Republic v. Valencia, supra).
Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
proceeding to effect substantial correction and changes in
entries of the civil register (Lee v. Court of Appeals, G.R.
No. L-118387, Oct. 11, 2001).
Whether a petition under Rule 108 can be granted by
reason of sex change or sec reassignment: No.
Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it
cannot be argued that the terms sex as used then is
something alterable through surgery or something that
allows a post-operative male-to-female transsexual to be
included in the category of female (Silverio v. Republic of
the Philippines, G.R. No. 174689, October 22, 2007).
Congenital Adrenal Hyperplasia (CAH)
This condition causes the early or inappropriate
appearance of male characteristics. x x x. CAH is one of
many conditions that involves intersex anatomy. During
the twentieth century, medicine adopted the term
intersexuality to apply to human beings who cannot be
classified as either male or female. The term is now of
widespread use. According to Wikipedia, intersexuality is
the state of a living thing of a gonochoristic species whose
sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively
male nor female. An organism with intersex may have
biological characteristics of both male and female sexes
(Republic of the Philippines v. Jennifer Cagandahan, G.R.
No. 166676, September 12, 2008).
Principles laid down by the SC in Republic of the
Philippines v. Cagandahan:
1. Where the person is biologically or naturally intersex,
the determining factor in his gender classification would
be what the individual, having reached the age of
majority, with good reason thinks of his/her sex; sexual
development in cases of intersex persons makes the
gender classification at birth inconclusive it is at
maturity that the gender of such persons is fixed.
2. To the person with CAH belongs the human right to the
pursuit of happiness and of health, and to him should
belong the primordial choice of what courses of action
to take along the path of his sexual development and
maturation.
3. There is merit in the change of name of a person with
CAH where the same is the consequence of the
recognition of his preferred gender.
SECTION 3. PARTIES
1. Civil registrar;
2. All persons who have or claim any interest which would
be affected thereby.
SECTION 4. NOTICE AND PUBLICATION
Order of hearing shall be published once a week for 3
consecutive weeks in a newspaper of general circulation
in the province and all persons named in the petition shall
be notified.
SECTION 5. OPPOSITION
The following are entitled to oppose the petition:
1. The Civil Registrar; and
2. Any person having or claiming any interest under the
entry whose cancellation or correction is sought.
Within 15 days from notice of the petition or from date of
last publication.
SECTION 6. EXPEDITING PROCEEDINGS
The court may also grant preliminary injunction for the
preservation of the rights of the parties pending such
proceedings.
SECTION 7. ORDER
The Civil Registrar shall be given a copy of the judgment
and annotate the same on his record.
Republic Act No. 9048 or the Clerical Error Act which
was passed by Congress on February 8, 2001 amended
Articles 376 and 412 of the New Civil Code. Republic Act
No. 10172 or An Act Further Authorizing the City or
Municipal Civil Registrar or the Consul General to Correct
Clerical or Typographical Errors in the Day and Month in
the Date of Birth or Sex of a Person Appearing in the Civil
Register Without Need of a Judicial Order amended
Sections 1, 2, 5 and 8 of Republic Act No. 9048.
REPUBLI C ACT NO. 9048
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Cases Covered:
1. Clerical or typographical errors and change of first
name or nickname
2. Clerical or typographical errors and change of the day
and month in the date of birth
3. Clerical or typographical errors and change of sex of a
person where it is patently clear there was clerical or
typographical error or mistake in the entry (Sec. 1, R.A.
No. 9048, as amended by R.A. No. 10172).
General Rule: No entry in a civil register shall be changed
or corrected without a judicial order.
Exception: Clerical or typographical errors and change of
first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar
or consul general in accordance with the provisions of this
Act and its implementing rules and regulations.
Clerical or typographical error
A mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil
register that is harmless and innocuous, such as a
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: Provided,
however, That no correction must involve the change of
nationality, age or status of the petitioner (Sec. 2 [3] R.A.
No. 9048, as amended by Sec. 2 R.A. No. 10172).
Note: It may be very well said that Republic Act No. 9048
is Congress' response to the confusion wrought by the
failure to delineate as to what exactly is that so-
called summary procedure for changes or corrections of a
harmless or innocuous nature as distinguished from
that appropriate adversary proceeding for changes or
corrections of a substantial kind. The obvious effect is to
remove from the ambit of Rule 108 the correction or
changing of clerical or typographical errors in entries of
the civil register. Hence, what are left for the scope of
operation of Rule 108 are substantial changes and
corrections in entries of the civil register (Lee v. Court of
Appeals, G.R. No. 118387, October 11, 2001).
Petition for change of name (Rule 103) and petition for
cancellation or correction of entries (Rule 108) are
distinct proceedings. Hence, a party cannot change his
name and correct an entry in a single petition without
satisfying the jurisdictional requirements (Herrera, p.564).
The cancellation or correction of entries in the Civil
Registry is a proceeding in rem. Strict compliance with all
jurisdictional requirements, particularly on publication, is
essential in order to vest the court with jurisdiction
(Regalado, p. 193).
Definition of terms:
1. First name refers to a name or nickname given to a
person which may consist of one or more names in
addition to the middle and last names.
2. Migrant petitioner refers to a petitioner whose
present residence or domicile is different from the place
where the civil registry record to be corrected was
registered.
3. Record-keeping civil registrar refers to the
City/Municipal Civil Registrar in whose archive is kept
the record, which contains the error to be corrected or
the first name to be changed. This term shall be used
only in cases involving migrant petitioner.
4. Petition-receiving civil registrar refers to the
City/Municipal Civil Registrar of the city or municipality
where the petitioner resides or is domiciled and who
receives the petition on behalf of the Record-keeping
Civil Registrar in the case of a migrant petitioner.
Grounds:
1. The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by the first name or nickname in
the community; or
3. The change will avoid confusion (Sec. 4).
Who may file: Any person of legal age, having direct and
personal interest in the correction of a clerical or
typographical error in an entry and/or change of first name
or nickname in the civil register (Sec. 3).
Person with direct and personal interest:
1. He is the owner of the record; or
2. The owners spouse, children, parents, brothers, sisters,
grandparents, guardian; or
3. Any other person duly authorized by law or by the
owner of the document sought to be corrected.
Provided, that when a person is a minor or physically or
mentally incapacitated: petition may be filed on his behalf
by his spouse, or any of his children, parents, brothers,
sisters, grandparents, guardians, or persons duly
authorized by law (Sec. 3).
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Where to file:
1. Local civil registry office or Clerk of the Sharia Court
where the record being sought to be corrected or
changed is kept;
2. If petitioner has already migrated to another place in the
country: petition-receiving civil registrar of the place
where the interested party is presently residing or
domiciled (Rule 4, Implementing Rules & Regulations);
3. Citizens of the Philippines who are presently residing or
domiciled in foreign countries: nearest Philippine
Consulates (Sec. 3).
Contents of the petition: The petition shall be in the form
of an affidavit, subscribed and sworn to before any person
authorized by the law to administer oaths and shall set
forth:
1. The facts necessary to establish the merits of the
petition;
2. That the petitioner is competent to testify to the matters
stated;
3. The erroneous entry which are sought to be corrected;
4. All names by which petitioner is known (Secan Kok v.
Republic of the Philippines, supra).
Annexes to the petition
1. A certified true copy of the certificate or of the page of
the registry book containing the entries sought to be
corrected or changed;
2. At least 2 public or private documents showing the
correct entries upon which correction or change shall be
based;
3. Other documents which the petitioner or the city or
municipal civil registrar or the consul general may
consider relevant and necessary for the approval of the
petition;
4. For correction of erroneous entry of date of birth or the
sex of a person: earliest school record or earliest school
documents such as, but not limited to, medical records,
baptismal certificate and other documents issued by
religious authorities;
5. For change of gender corrected: certification issued by
an accredited government physician attesting to the fact
that the petitioner has not undergone sex change or sex
transplant.
6. Certification from appropriate law enforcement agencies
that the petitioner has no pending case or no criminal
record (Sec. 5 as amended by Sec. 3, R.A. No. 10172).
Publication requirement: The petition must be published
at least once a week for 2 consecutive weeks in a
newspaper of general circulation.
Copies of the petition shall be given to: the city or
municipal civil registrar, or the consul general; the Office
of the Civil Registrar General; and the petitioner (Sec. 5).
Duties of the city/municipal civil registrar or the
Consul General:
1. Examine the petition and its supporting documents;
2. Post the petition in a conspicuous place provided for
that purpose for 10 consecutive days after he finds the
petition and its supporting documents sufficient in form
and substance;
3. Act on the petition and render a decision not later than
5 working days after the completion of the posting
and/or publication requirement;
4. Transmit a copy of his decision together with the
records of the proceedings to the Office of the Civil
Registrar General within 5 working days from the date
of the decision (Sec. 6).
Duties and powers of the civil registrar general
1. Within 10 working days from receipt of the decision
granting the petition, the Civil Registrar General shall
exercise the power to impugn such decision by way of
an objection based on the following grounds:
a. The error is not clerical or typographical;
b. The correction of entries is substantial or
controversial as it affects the civil status of a person;
and
c. The basis used in changing the first or nick name of a
person does not fall under those provided by law.
2. The Civil Registrar General shall immediately notify the
city/municipal civil registrar or the consul general of the
action taken on the decision.
3. He has appellate powers over the decision of the local
civil registrars or consul general (Sec. 7).
If the Civil Registrar General fails to exercise his power to
impugn within the prescribed period, the decision of the
city/municipal civil registrar or the consul general shall
become final and executor (Sec. 7).
Effect of approving the petition for change of name:
The change shall be reflected in the birth certificate by
way of marginal annotation. In case there are other civil
registry records of the same person which are affected by
such change, the decision of approving the change of first
name in the birth certificate, upon becoming final and
executory, shall be sufficient to be used as basis in
changing the first name of the same person in his other
affected records without need for filing a similar petition. In
such a case, the successful petitioner shall file a request
in writing with the concerned LCR or Consul to make such
marginal annotation (Rule 12, Implementing Rules &
Regulations 9048, July 24, 2001).
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Availment of the privilege: The correction of clerical or
typographical error shall be availed of only once with
respect to a particular entry or entries in the same civil
registry record. In case of change of first name or
nickname in the birth certificate, the privilege shall be
availed of only once, subject to the provisions of Rule 12
of the Implementing Rules & Regulations (Rule 7, IRR
9048).
Payment of Fees: The city or municipal civil registrar or
the consul general shall be authorized to collect
reasonable fees as a condition for accepting the petition.
An indigent petitioner shall be exempt from the payment of
said fee. (Sec. 8 as amended by Sec. 4, R.A. No. 10172)
Procedure: Republic Act No. 9048












Note: In case of a migrant petitioner, the petition shall be
posted first at the office of the petition-receiving civil
registrar for 10 consecutive days before sending it to the
record-keeping civil registrar. Upon receipt, the RKCR
shall post again the petition in his office for another 10
consecutive days (Rule 9, IRR 9048).
In the case where a persons civil registry record or
records were registered in the Philippines or in any of the
Philippine Consulates, but the persons presently resides
or is domiciled in a foreign country, posting and/or
publication, as the case may be, shall be done in the
place where the petition is filed and in the place where the
record sought to be corrected is kept (Rule 9, IRR 9048).
Grounds for impugning the decision granting the
petition
1. Error is not clerical or typographical;
2. Correction of an entry or entries in the civil register is
substantial or controversial as it affects the civil status
of a person; or
3. The basis used in changing the first name or nickname
does not fall under any of the grounds.
See Comparative Chart: Rule 103, Rule 108, R.A. No.
9048 on Page 252.
The period of appeals in Special Proceedings shall be 30
days and a record on appeal is required. (Herrera, p. 578)
SECTION 1. ORDERS OR JUDGMENTS FROM WHICH
APPEALS MAY BE TAKEN
An interested person may appeal in special proceedings
from such order or judgment rendered which: (ADASCO)
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 the 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
RULE 109
APPEALS I N SPECI AL
PROCEEDI NGS
If change of
first name/
nickname:
1.Two weeks
publication
2.Certification
that there is no
pending case
or criminal
record
Grants
Affidavit with supporting documents (3 copies)
Filed with the City or Municipal civil
registrar (Local Civil Registrar
[LCR]) or Consul General
10-day posting by the LCR or
Consul General
LCR or Consul General: 5 days to
ACT on the application
Denies
If not impugned,
the decision
becomes final and
executory.
Transmit decision & records to Civil
Registrar General within 5 working days
LCR or Consul General shall notify
petitioner
Within 10 days, the
Civil Registrar
General may
impugn the
decision by way of
objection
Motion for Reconsideration with
Civil Registrar General
Notify the LCR or Consul General
with the adverse decision
File appropriate
petition with the
proper court
Appeal to Civil
Registrar
General
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appealing, except that no appeal shall be allowed from
the appointment of a 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 be an order granting or denying a motion for a
new trial or for reconsideration.
Note: Rule 109 enumerates the cases wherein multiple
appeals are allowed and a record on appeal is required for
an appeal to be perfected. The petition for the declaration
of presumptive death of an absent spouse not being
included in the enumeration, petitioners mere notice of
appeal suffices. The reason is that said petition is a
summary proceeding under the Family Code, and not a
special proceeding under the Rules of Court (Republic of
the Philippines v. Court of Appeals, G.R. No. 163604, May
6, 2005).
Who may appeal? An interested person whose interest
must be material and direct, not merely indirect or
contingent (Teotico v. De Vat, G.R. No. L-18753, March
26, 1965).
Orders that are not appealable
1. Order directing administrator to take action to recover
amount due to the estate;
2. Order made in administration proceedings relating to
inclusion or exclusion of items of property in the
inventory of executor or administrator;
3. Order appointing special administrator.
SECTION 2. ADVANCE DISTRIBUTION IN SPECIAL
PROCEEDINGS
Rule on advance distribution: Notwithstanding a
pending controversy or appeal in proceedings to settle the
estate of a decedent, the court:
1. In its discretion; and
2. Upon such terms as it may deem just and proper;
3. Permit that such part of the estate as may not be
affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with the
condition in Rule 90.
4. The distributees must post a bond as provided under
Section 1, Rule 90 (Pea and Nolasco Law Office v.
LCN Construction Corp., G.R. No. 174873, August 26,
2008).
Appeal In Ordinary Civil
Action
Appeal In Special
Proceedings
15 days. 30 days.
Notice of Appeal and
docket fees.
Record on Appeal and
docket fees.
No extension. Maybe extended on
meritorious grounds.
Note: The appeal shall affect every order, decree, or
judgment appealed from, and not merely the interest
which the appellants may have therein (Panis v. Yangco,
G.R. No. L-29460, December 22, 1928).
Multiple appeals
A. Settlement of the Estate
1. Order admitting the will to probate;
2. Appointment of executor or administrator;
3. Appeal from the order concerning a contested claim;
4. Order determining the heirs.
5. Appeal by surety of an executor or administrator,
admitted as party to an accounting made by such
executor or administrator, in an order of the court
approving or disapproving such accounting
(Saguinsin v. Lindayag, G.R. No. L-17759, December
17, 1962 );
6. Appeal by heir from money claim (Fluemer v. Hix,
G.R. No. L-32636, March 17, 1930);
7. Order for license to sell (Santos v. Roman Catholic
Bishop of Nueva Caceres, G.R. No. L-21289, April
5,1924);
8. Order against bond (Moran); and
9. Order to contract obligation (De Borja v. Encarnacion,
G.R. No. L-4179, May 30, 1951).
B. Guardianship
1. Order annulling appointment of guardian (Alemany v.
Sweeney, G.R. No. 1403, March 19, 1904); and
2. Order removing a guardian (Olarte v. Enriquez, G.R.
No. L-16098, October 31, 1960).
Certiorari and mandamus are not substitutes for
appeal
Having lost the remedy to appeal due to the parties own
neglect, they cannot seek redress by certiorari and
mandamus, it not appearing that the lower court acted
without jurisdiction (Profeta v. Guitierrez David, G.R. No.
L-47736, April 18, 1941).
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Special Proceeding Venue Jurisdiction
Settlement of the Estate Residence of the decedent or if the
decedent is a non-resident, place
where he had an estate
MTC if the gross value of the
estate does not exceed
PhP300,000, or does not exceed
PhP400,000 in Metro Manila
RTC if the gross value of the
estate exceeds the above amounts
a. Person dies intestate leaving no
heir Residence of the decedent
or if non-resident, in the place
where he had an estate.
RTC
b. Reversion Where the land lies
in whole or in part
RTC
Escheat
c. Unclaimed Balances Act
Where the dormant deposits are
located
RTC
Appointment of Guardians
Where the minor or incompetent
resides
Family Court (in case of Minors)
RTC (Regular courtsin case of
Incompetents)
Appointment of Trustees
Where the will was allowed or
where the property or portion
thereof affected by the trust is
situated
RTC/MTC
Domestic Adoption Where the adopter resides Family Court
Inter-Country Adoption
Where the adoptee resides if filed
with the Family Court
Family Court or the Inter-Country
Adoption Board
Rescission of Adoption Where the adoptee resides Family Court
Habeas Corpus
Where the detainee is detained (if
the petition is filed with the RTC)
SC, CA, RTC, MTC in the province
or city in case there is no RTC
judge;
Sandiganbayan only in aid of its
appellate jurisdiction.
Custody of Minors
Province or city where petitioner
resides or minor may be found.
Family Court
Habeas Data
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
petitioner
RTC;
Sandiganbayan, CA or SC when
the action concerns public data
files or government offices
Amparo Proceedings
Where the threat act or omission
was committed or any of its
elements occurred
RTC;
Sandiganbayan, CA, or SC or any
justice thereof
Habeas Corpus in relation to
minor
Where the petitioner resides or
where the minor may be found.
Family Court, CA and SC.
Change of Name Where petitioner resides RTC
VENUE AND JURI SDI CTI ON I N SPECI AL PROCEEDI NGS
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Special Proceeding Venue Jurisdiction
Appointment of Representative
of Absentee/Declaration of
Absence
Where the absentee resided
before his disappearance
RTC
Cancellation/Correction of
Entries in the Civil Registries Where the corresponding Civil
Registry is located
RTC
Petition for Declaration of Nullity,
Annulment, Legal Separation
Where petitioner or respondent
has been residing for at least 6
months prior to the date of filing, in
case of non resident respondent,
where he may be found at the
election of the petitioner.
Family Court
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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
Involves the right to liberty of and
rightful custody by the aggrieved party
Involves the right to life, liberty and
security of the aggrieved party and
covers extralegal killings and enforced
disappearances
Involves the right to privacy in life,
liberty or security of the aggrieved
party and covers extralegal killings
and enforced disappearances
There is an actual violation of
aggrieved partys right.
There is an actual or threatened
violation of aggrieved partys right.
There is an actual or threatened
violation of aggrieved partys right.
Respondent: may or may not be an
officer.
Respondent is a public official or
employee or a private individual or
entity.
Respondent is a public official or
employee or a private individual or
entity engaged in the gathering,
collecting or storing of data or
information regarding the person,
family name and correspondence of
the aggrieved party.
Who may file the petition:
Filed by the party for whose relief it is
intended or by some person on his
behalf.
Who may file the petition:
Filed by the aggrieved party or by any
qualified person or entity in the
following order:
a) any member of the immediate
family of the aggrieved party, i.e.
spouse, children and parents;
b) any ascendant, descendant or
collateral relative of the aggrieved
party within the fourth civil degree of
consanguinity or affinity;
c) any concerned citizen, organization,
association or institution (right to file is
successive).
The filing of the aggrieved party
himself suspends the right to file
petition by other persons.
Upon filing of the petition by an
authorized person suspends the right
to file by others down the order.
Who may file the petition:
Filed by the aggrieved party; but in
cases of extralegal killings and
enforced disappearances, may be filed
by:
a) any member of the immediate
family of the aggrieved party, i.e.
spouse, children and parents;
b) any ascendant, descendant or
collateral relative of the aggrieved
party within the fourth civil degree of
consanguinity or affinity.
Filed before:
1. RTC or any judge thereof,
enforceable within its territorial
jurisdiction;
2. CA or any member thereof in
instances authorized by law; and
3. SC or any member thereof.
Contents of the signed verified
petitions:
1. The fact that the person in whose
behalf the petition is filed is
Filed before:
1. RTC of the place where the threat
act or omission was committed or
any of its elements occurred;
2. Sandiganbayan or any justice
thereof;
3. CA or any justice thereof; and
4. SC or any justice thereof.
Contents of the signed and verified
petition:
1. Petitioners circumstances.
2. Respondents circumstances
Filed before:
1. RTC 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
petitioner
2. SC, CA or Sandiganbayan
when the action concerns public
data files or government offices.
Contents of the signed and verified
COMPARATI VE CHART: HABEAS CORPUS, WRI T OF AMPARO AND HABEAS
DATA
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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
imprisoned or restrained of his liberty;
2.The detaining officer or private
individual, if unknown or uncertain,
such officer or person maybe
described by an assumed
appellation;
3.The place where the person
deprived of his liberty is imprisoned
or detained; and
4.A copy of the commitment or cause
of detention of such person, if it can
be procured without impairing the
efficiency of the remedy, or the fact
that the imprisonment or detention
is without any legal authority.
3. The right violated or threatened to
be violated details of the violation or
threat.
4. Investigations conducted
5. Actions and recourses taken by the
petitioner in ascertaining the
whereabouts of the aggrieved party.
6. Relief prayed for which may include
a general prayer for other just and
equitable reliefs.
petition:
1. Petitioners circumstances.
2. Respondents circumstances.
3. Location of the file or database and
the person or entity having custody,
possession or control.
4. Actions and recourses taken by the
petitioner to secure the data or
information.
5. Update, rectification, suppression or
destruction of the file or database or
the enjoinment of the threat.
6. General prayer to other just and
equitable reliefs.
If granted by SC or CA or any
member of such courts, it is
enforceable anywhere in the
Philippines; if granted by the RTC or a
judge thereof, it is enforceable only
within his judicial district.
The writ shall be enforceable
anywhere in the Philippines
regardless of who issued the same.
The writ shall be enforceable
anywhere in the Philippines regardless
of who issued the same.
If granted by the SC or CA or any
member of such courts, it may be
made returnable before the court or
any member thereof or before an RTC
or any judge thereof.
If granted by the RTC or a judge
thereof, it is returnable before himself.
If issued by the RTC or any judge
thereof, it is returnable before such
court or judge.
If issued by the Sandiganbayan or
the CA or any of their justices, it
may be returnable before such court
or any justice thereof, or to any RTC
of the place where the threat, act or
omission was committed or any of its
elements occurred.
If issued by the SC or any of its
justices, it may be returnable before
such Court or any justice thereof, or
the Sandiganbayan or CA or any of
their justices, or to any RTC of the
place where the threat, act or
omission was committed or any of its
elements occurred.
The writ shall be immediately issued
upon filing of a valid petition
substantial in form and content.
The clerk of court shall issue the writ
under the seal of the court. Except in
emergency cases which may be
issued by the judge or justice.
If issued by the RTC or any judge
thereof, it shall be returnable before
such court or judge.
If issued by the CA or the
Sandiganbayan or any of its
justices, it may be returnable before
such court or any justice thereof, or to
any RTC of the place where the
petitioner or respondent resides or that
which has jurisdiction over the place
where the data or information is
gathered, collected or stored.
If issued by the SC or any of its
justices, it may be returnable before
such Court or any justice thereof, or
before the CA or the Sandiganbayan
or any of its justices, or to any RTC of
the place where the petitioner or
respondent resides or that which has
jurisdiction over the place where the
data or information is gathered,
collected or stored.
The writ shall be immediately issued
upon filing of a valid petition
substantial in form and content.
The clerk of court shall issue the writ
under the seal of the court; shall be
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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
The writ shall set the date and time for
summary hearing within 7 days from
the issuance of the writ.
served by the clerk within 3 days from
issuance. In case of emergency, the
writ maybe issued by a justice or
judge.
The writ shall set the date and time for
summary hearing within 10 days from
issuance.
Petitioner is exempted from payment
of docket and other lawful fees.
Only an indigent petitioner is not
required to pay docket and other
lawful fees.
Date and time of hearing is specified
in the writ.
Summary hearing shall be conducted
not later than 7 days from the date of
the issuance of the writ.
Summary hearing shall be conducted
not later than 10 work days from the
date of the issuance of the writ.
Served to the person to whom it is
directed; and if not found or has not
the prisoner in his custody, to the
other person having or exercising
such custody.
Served upon the respondent
personally, but if it cannot be served
personally, the rules on substituted
service shall apply.
A copy is served on the respondent
and the sheriff retains a copy on which
to make a return of service.
Served upon the respondent
personally, but if it cannot be served
personally, the rules on substituted
service shall apply.
A copy is served on the respondent
and the sheriff retains a copy on which
to make a return of service.
If the person to whom the writ is
directed neglects or refuses to obey or
make return of the same, or makes a
false return thereof, or who, upon
demand made by or on behalf of the
prisoner, refuses to deliver to the
person demanding, within 6 hours
after the demand therefore, a true
copy of the warrant or order of
commitment, he shall forfeit to the
party aggrieved the sum of Php 1,000
and may be punished for contempt.
If the respondent refuses to make a
return or makes a false return, he may
be punished with imprisonment or fine
for committing contempt without
prejudice to other disciplinary actions.
If the respondent makes a false return
or refuses to make a return, he may
be punished with imprisonment or fine
for committing contempt without
prejudice to other disciplinary actions..
The person who makes the return is
the officer by whom the prisoner is
imprisoned or the person in whose
custody the prisoner is found.
The person who files the return is the
respondent. The return must be filed
within 5 days from the service of the
writ.
The person who files the return is the
respondent. The return must be filed
within 5 days from the service of the
writ.
Contents of the Return:
1. Whether or not he has custody over
the aggrieved party;
2. The authority and the true and
whole cause of detention;
3. if the party detained cannot be
produced, he must state the sickness
or infirmity;
4. if he has transferred the custody, he
shall state whom the person was
transferred, time, cause and authority
of such transfer.
Contents of the Return:
4. Lawful defenses available to
the respondent.
5. The actions and steps taken by
the petitioner in determining the
whereabouts of the aggrieved
party and the identity of the
violator.
6. All information relevant to the
case.
7. Actions taken by the public
official:
Contents of the Return:
1. Lawful defenses available.
2. If the respondent has possession or
control of the data or information:
a. He must disclose the data or
information, its nature, and the
purpose of his collection.
b. The actions and steps taken in
order to secure the confidentiality of
the data or information.
c. The accuracy of the data or
information in his possession or
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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
a. In verifying the identity of
the aggrieved party.
b. Recovery and preservation
of the evidence for the
prosecution.
c. Determine the
circumstances surrounding
the death of
disappearance.
d. Identify and apprehend the
persons involved.
e. Bring the suspected
offender to the court.
A general denial of the allegations in
the petition shall not be allowed.
control.
3. All relevant allegations.
A general denial of the allegations in
the petition shall not be allowed.
Effects of failure to file a return:
If the respondent fails to file a return,
the court, justice or judge shall
proceed to hear the petition ex parte.
Effects of failure to file a return:
The Court, justice or judge shall
proceed to hear the petition ex parte,
granting the petitioner such relief as
the petition may warrant unless the
court in its discretion requires
petitioner to submit evidence.
There are prohibited pleadings and
motions.
There are prohibited pleadings and
motions.
Sec. 12
1. Unless for good cause shown, the
hearing is adjourned, in which
event the court shall make an
order for the safe keeping of the
person imprisoned or restrained
as the nature of the case
requires;
2. The court or judge must be
satisfied that the persons illness
is so grave that he cannot be
produced without any danger.
Sec. 14. The court, justice or judge
may grant interim reliefs, to wit:
temporary protection order, inspection
order, production order and witness
protection order.
NOT applicable.
There is no presumption that official
duty has been regularly performed.
J udgment shall be rendered within
10 days from the time the petition is
submitted for decision.
The writ and reliefs prayed for must be
granted if the allegations are proven
by substantial evidence. Otherwise, it
must be denied.
J udgment shall be rendered within
10 days from the time the petition is
submitted for decision.
The writ and reliefs prayed for must be
granted if the allegations are proven
by substantial evidence. Otherwise, it
must be denied.
Judgment shall be enforced within 5
working days.
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Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
Period of appeal is within 48 hours
from notice of the judgment or final
order appealed from. The appeal shall
be filed to the Supreme Court under
Rule 45. (Tan Chin Hui v. Rodriguez,
G.R. No. 137571, September 21,
2000).
Period of appeal shall be 5 working
days from the date of notice of the
adverse judgment. Filed with SC thru
RULE 45. Given the same priority as
that of Habeas Corpus.
Period of appeal shall be 5 working
days from the date of notice of the
judgment or final order. Filed with SC
thru RULE 45. Given the same priority
as that of Habeas Corpus.
May be consolidated with a criminal
action filed subsequent to the petition.
May be consolidated with a criminal
action filed subsequent to the petition.
Quantum of proof is clear and
convincing evidence.
Quantum of proof is substantial
evidence.
If the petition cannot proceed for a
valid cause, it shall not be dismissed
by the court, but it must be archived.
After 2 years from notice of the
archiving of the petition, it shall be
dismissed with prejudice upon failure
to prosecute.
Substantive rights cannot be
increased, diminished or modified.
Substantive rights cannot be
increased, diminished or modified.
The Rules of Court applies
suppletorily.
The Rules of Court applies
suppletorily.
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Rule 103 Rule 108 R.A. No. 9048
Substantial change of name
Cancellation or Correction of
Entries in the Civil Registry
(Substantial and adversary, if
change affects the civil status,
citizenship or nationality; Summary,
if it involves mere clerical errors.)
Clerical Error Act
Change of full name
Change or corrections in the civil
registry entries (substantial
corrections):
Births, marriages, deaths, legal
separation, judgments of
annulments of marriage, judgments
declaring void a marriage,
legitimations, adoptions,
acknowledgment of natural
children, naturalizations, election,
loss or recovery of citizenship, civil
interdiction, judicial determination
of filiation.
Change of first name and nickname and
civil registry entries (only typographical
or clerical errors)
Who may file
A person desiring to change his
name files a petition.
Any person interested in any act,
event, order or decree concerning
the civil status of persons which
has been recorded in the civil
register.
Any person having direct and personal
interest in the correction of a clerical or
typographical error in an entry and/or
change of first name or nick name files a
verified petition in a form of an affidavit.
Venue
RTC of the province in which the
petitioner resides for 3 years prior
to the filing, or, in the City of
Manila, to the Juvenile and
Domestic Relations Court
RTC of the city or province where
the corresponding civil registry is
located
1. Local civil registry office of the city or
municipality where the record being
sought to be corrected or changed is
kept;
2. Local civil registrar of the place where
the interested party is presently
residing or domiciled (transient
petitioner);
3. Philippine consulates
Contents of Petition
a) That the petitioner has been a
bona fide resident of the
province where the petition is
filed for at least 3 years prior
to the date of filing;
b) The cause for which the
change of the petitioners
name is sought;
c) The name asked for;
d) All names by which petitioner
1. Facts necessary to establish the
merits of the petition;
2. Particular erroneous entry or entries,
which are sought to be corrected
and/or the change sought to be made.
The petition shall be supported with the
following documents:
a) Certified true machine copy of the
certificate or of the page of the
COMPARATI VE CHART: RULE 103, RULE 108 AND R.A. NO. 9048
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is known. registry book containing the entry or
entries sought to be corrected or
changed;
b) At least 2 public or private documents
showing the correct entry or entries
upon which the correction or change
shall be based; and
c) Other documents which the petitioner
or the city or municipal civil registrar
or the consul general may consider
relevant and necessary for the
approval of the petition.
Grounds
a) Name is ridiculous, tainted with
dishonor or extremely difficult
to write or pronounce;
b) Consequence of change of
status;
c) Necessity to avoid confusion;
d) Having continuously used and
been known since childhood
by a Filipino name, unaware of
his/her alien parentage;
e) A sincere desire to adopt a
Filipino name to erase signs of
former alienage all in good
faith and without prejudicing
anybody.
Upon good and valid grounds, the
entries in the civil registry may be
cancelled and corrected.
a) First name or nickname is ridiculous,
tainted with dishonor or extremely
difficult to write and pronounce;
b) The new first name or nickname has
been habitually and continuously used
by the petitioner and he has been
publicly known by that first name or
nickname in the community; or
c) To avoid confusion.
Kind of Proceeding
Judicial
Summary proceeding
This can be converted to an
adversarial proceeding if there
are substantial changes and
affect the status of an individual
Administrative
What to File
Signed and verified petition
Verified petition for the
cancellation or correction of any
entry
Verified petition in the form of Affidavit
Notice, Publication and Posting
At least once a week for three
consecutive weeks in a
newspaper of general circulation
(notice of hearing)
No posting
Service of judgment shall be upon
the civil register concerned.
At least once a week for three
consecutive weeks in a
newspaper of general circulation
(notice of hearing)
No posting
Service of judgment shall be
upon the civil register concerned.
At least once a week for 2 consecutive
weeks (publish the whole affidavit)
Duty of the civil registrar or Consul to post
the petition in a conspicuous place for 10
consecutive days
Transmittal of decision to civil registrar
concerned.
Participation by the Government
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Solicitor General or the proper
provincial or city fiscal shall appear
on behalf of the Republic.
Civil Registrar is not a party to the
proceeding.
Civil Registrar is an indispensable
party.
Civil Registrar or Consul
Appeal
Court of Appeals Court of Appeals Civil Registrar General (head of NCSO)