UP SpecPro Reviewer 2008 PDF

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SPECIAL PROCEEDINGS REMEDIAL LAW

I. PRELIMINARY MATTERS

DEFINITION

SPECIAL PROCEEDINGS A remedy by
which a party seeks to establish a status, right
or a particular fact. [Rule 1, Sec. 3(c)]

APPLICABLE RULES

If special rules are provided, they shall apply.
But in the absence of such special provisions,
the rules applicable in special proceedings shall
be applied. [Rule 72, Sec. 2]
There are special proceedings which are not
part of the ROC (e.g. Writs of amparo and
habeas data), as special proceedings are in
general cases wherein one seeks to establish
the status/right of a party or a particular fact.
The State has an overriding interest in each
special proceeding, and the matter is not a
controversy between private parties purely.
[Bautista]
The distinction between final and interlocutory
orders in civil actions for purposes of
determining the issue of applicability, is not
strictly applicable to orders in special
proceedings. Rule 109 specifies the orders from
which appeals may be taken. [Regalado]
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings.
[Matute v. CA (1969)]

ORDINARY ACTIONS VIS--VIS SPECIAL
PROCEEDINGS

Ordinary action Special proceeding
To protect/enforce a right
or prevent/redress a
wrong
To establish a right/status
or fact
Involves 2 or more
parties
May involve only 1 party
Governed by ordinary
rules, supplemented by
special rules
Governed by special
rules, supplemented by
ordinary rules
Initiated by a pleading,
and parties respond
through an answer
Initiated by a petition,
and parties respond
through an opposition

VENUES AND JURISDICTIONS FOR
DIFFERENT SPECIAL PROCEEDINGS

Venue Jurisdiction
Estate settlement
Province of decedent's
residence at the time of
death
MTC - If estate's gross
value does not exceed
P300K (P400K in Metro
Manila)
If non-resident decedent
- Province where he had
estate
RTC - If estate's gross
value exceed MTC's
jurisdiction
Escheat
If decedent dies
intestate and without
heirs - Province where
decedent last resided or
where estate is
XXXXX
If reversion - Province
where land lies
wholly/partially
XXXXX
Guardianship
Where ward resides or
where his property is
located (if non-resident)
Family Court - If minor
ward
RTC - If other than minor
ward
Trusteeship
Where the will was
allowed or where the
property affected by the
trust is located
RTC
Adoption
If domestic - Where
adopter resides
Family Court
If inter-country - Where
adoptee resides (if filed
with Family Court)
Family Court or Inter-
Country Adoption Board
If rescission of adoption
- Where adoptee resides
Family Court
Habeas corpus
Where detainee is
detained (if filed in RTC)
SC (on any day and at any
time, enforceable
anywhere in the
Philippines)
XXXXX Sandiganbayan (only in aid
of its appellate
jurisdiction)
XXXXX CA (in instances
authorized by law,
enforceable anywhere in
the Philippines)
XXXXXX RTC (on any day and at
any time, enforceable only
within its judicial district)
Writ of amparo
Where the threat or
act/comission or any of
its elements occurred, at
any day and time) (if
filed in RTC)
SC, CA, Sandiganbayan,
RTC
Writ of habeas data
Petitioner's residence or
where the place the
informaion is
gathered/collected/store
d, at the petitioner's
option
RTC
SC, CA, Sandiganbayan -
If the action concerns
public data files of
government offices
Change of name
If judicial - Where the
person applying for the
change of his name
resides
RTC
If administrative - Local civil registry or
Philippine consulate
a) Local civil registry
where the record sought
to be changed is kept
XXXXX
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)
XXXXX
c) Philippine consulates
(only for Philippine
citizens who reside in
foreign countries)
xXXXX
Cancellation/correction of entries in the civil
registry
If judicial - Where the
concerned civil registry is
located
RTC

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If administrative - Local civil registry or
Philippine consulate
a) Local civil registry
where the record sought
to be changed is kept
XXXXX
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)
XXXXX
c) Philippine consulates
(only for Philippine
citizens who reside in
foreign countries)
XXXXX
Declaration of absence and appointment of their
representative
Where absentee resided
before his disappearance
RTC

II. SETTLEMENT OF ESTATE OF
DECEASED PERSONS

A. VENUE AND JURISDICTION

Special proceedings for settlement of estate
may be testate (where the deceased left a will)
or intestate (if there is no will).
Probate of a will is mandatory and takes
precedence over intestate proceedings.
If in the course of intestate proceedings, it is
found that the decedent left a will, proceedings
for the probate of the latter should replace the
intestate proceedings.

WHERE ESTATE IS SETTLED

1) If decedent is a resident of the Philippines
(whether citizen or alien) Court of the place
where the decedent resided at the time of
death.
2) If decedent is a non-resident of the Philippines
Court of the place where the decedent had
his estate.
a) RTC if estate is greater than P300K (P400K
in Metro Manila)
b) MTC if estate is less than P300K (P400K in
Metro Manila)

Note: Upon dissolution of marriage by the
death of either the husband or the wife, the
partnership affairs must be liquidated in the
in/testate proceedings of the deceased spouse.
If both have died, liquidation may be made in
the in/testate proceedings of either. [Rule 73,
Sec. 2]
If separate proceedings have been
instituted for each estate, both proceedings
may be consolidated if they were filed in
the same court [Bernardo v. CA].
RESIDENCE Personal/actual/physical
habitation, his actual residence or place of
abode [Fule v. CA], and not his permanent
legal residence of domicile [Pilipinas Shell v.
Dumlao].
Wrong venue is a waivable procedural defect,
and such waiver may occur by laches where a
party had been served notice of the filing of the
probate petition for a year and allowed the
proceedings to continue for such time before
filing a motion to dismiss. [Uriarte v. CFI]
Extent of courts jurisdiction: Limited
jurisdiction. It may only determine and rule
upon the following issues:
1) Administration of the estate;
2) Liquidation of the estate;
3) Distribution of the estate.
4) Other issues that may be adjudicated on:
a) Who are the heirs of the decedent.
[Reyes v. Ysip]
b) Recognition of a natural child. [Gaas v.
Fortich]
c) Validity of disinheritance effected by
the testator. [Hilado v. Ponce de Leon]
d) Status of a woman who claims to be
the decedents lawful wife. [Torres v.
Javier]
e) Validity of a waiver of hereditary rights.
[Borromeo-Herrera v. Borromeo]
f) Status of each heir.

g) Whether property in inventory is
conjugal or exclusive property of
deceased spouse.
h) All other matters incidental/collateral to
the settlement and distribution of the
estate.
Exception: [Coca v. Borromeo]
Where a particular matter should
be resolved by the RTC in the
exercise of its general jurisdiction
or its limited probate jurisdiction is
not a jurisdictional issue but a mere
question of procedure and can be
waived.

DETERMINATION OF OWNERSHIP

General rule: Not allowed.
Exceptions:
1) Provisionally, ownership may be
determined for the purpose of including
property in inventory, without prejudice
to its final determination in a separate
action.
2) If all the parties are heirs and they
submit the issue of ownership to
probate court, provided that the rights
of 3rd parties are not prejudiced.
3) If the question is one of collation or
advancement.
4) If the parties consent to the
assumption of jurisdiction by the
probate court.

EXCLUSIONARY RULE [Rule 73, Sec. 1]

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 (e.g. if they
entered into an extrajudicial partition
settlement). [Sandoval v. Santiago]
Note: In Rodriguez v. Borja, the SC said
that the delivery of the will is sufficient for
jurisdiction to be acquired, even if no
petition is filed.
Exception: Estoppel by laches.

REMEDY IF THE VENUE IS IMPROPERLY
LAID

General rule: Ordinary appeal, and not
certiorari or mandamus.
Exception: If want of jurisdiction appears
on the record of the case. [Rule 73, Sec. 1;
Eusebio v. Eusebio]

ISSUANCE OF WRIT OF EXECUTION

General rule: Probate court cannot issue writ
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.
Exception: [Vda. de Valera v. Ofilada]
1) To satisfy the contributive shares of the
devisees/legatees/heirs when the latter
had entered prior possession over the
estate. [Rule 88, Sec. 6]
2) To enforce payment of the expenses of
partition. [Rule 90, Sec. 3]
3) To satisfy the costs when a person is
cited for examination in probate
proceedings. [Rule 142, Sec. 13]

B. PRESUMPTION OF DEATH

General rule: A person is dead for the purpose
of settling his estate if he has been missing for
10 years. [Art. 390, CC]
However, if the absentee disappeared after
the age of 75 years, an absence of 5 years
is sufficient for the opening of succession.
However, the following persons would be
considered absent even for the purpose of
opening succession after just 4 years: [Art.
391, CC]
1) A person on board a vessel lost during
a sea voyage, or an aeroplane which is
missing.
2) A person in the armed forces who has
taken part in war.
3) A person who has been in danger of
death under other circumstances.
If the absentee turns out to be alive, shall be
entitled to the balance of his estate after
payment of all his debts. The balance may be
recovered by motion in the same proceeding.
[Rule 73, Sec. 4]

C. WAYS OF SETTLING THE
ESTATE

General rule: Estate settlement should be
judicially administered through an
administrator/executor.
Exceptions:
1) Extrajudicial settlement by agreement
between/among heirs. [Rule 74, Sec.
1]
2) Summary settlement of estates of small
value. [Rule 74, Sec. 2]

1. EXTRAJUDICIAL
SETTLEMENT BY
AGREEMENT
BETWEEN/AMONG HEIRS

PROCEDURE IN EXTRAJUDICIAL
SETTLEMENT BY AGREEMENT BETWEEN/
AMONG HEIRS

REQUISITES REQUISITES REQUISITES REQUISITES

A. Substantive
1) The decedent left:
a) No will.
b) No debts.
It is sufficient if any debts that the
decedent incurred has been paid at
the time of the extra-judicial
settlement. [Guico v. Bautista]
There is also the disputable
presumption that the decedent left
no debts if no creditor files a
petition for letters of administration
within 2 years after the death of
the decedent.
2) The heirs are all of age
If there are minors, they should be
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 adjudication in
the case of a sole heir
Private instrument is valid. The
requirement of a public instrument in
Rule 74, Sec. 1 is not constitutive of
the validity but is merely evidentiary in
nature. (Hernandez v. Andal)
However, reformation of the instrument
may be compelled. [Regalado]
2) Filed with proper registry of deeds.
3) Publication of notice of the fact of
extrajudicial settlement at least once a
week for 3 consecutive weeks.
An extrajudicial settlement, despite the
publication thereof in a newspaper,
shall not be binding on any person who
has not participated therein or who had
no notice thereof. [Rule 74, Sec. 1]
4) Bond filed equivalent to the value of the
personal property.
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 substituted by a bond.
The bond is the value of the personal
property certified by the parties under
oath and conditioned upon payment of
just claims filed under Rule 74, Sec. 4.

2. SUMMARY SETTLEMENT OF
ESTATES OF SMALL VALUE

PROCEDURE IN SUMMARY SETTLEMENT
OF ESTATES OF SMALL VALUE

REQUISITES

1) Gross value of the estate must not exceed
P10K.
2) Application must contain allegation of gross
value of estate.
3) Date of 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.
Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks
in a newspaper of general circulation
Death of the decedent
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
Filing of bond equivalent to the value of personal
property
Hearing to be held not less than 1 month nor
more than 3 months from the date of the last
publication of notice
An application for summary settlement with an
allegation that the gross value of the estate does
not exceed P10K
Publication of notice of the fact of extrajudicial
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

Court to proceed summarily, without appointing
an executor/administrator, and to make orders
as may be necessary such as:
Grant allowance of the will, if any
Determine persons entitled to estate
Pay debts of estate which are due
Filing of bond fixed by the court
Partition of estate

4) Notice shall be served upon such interested
persons as the court may direct.
A summary settlement is not binding upon
heirs/creditors who were not parties therein
or had no knowledge thereof. [Sampilo v.
CA]
5) Bond in an amount fixed by the court (not
value of personal property) conditioned upon
payment of just claims under Rule 74, Sec. 4.

REMEDIES OF AGGRIEVED PARTIES
AGAINST EXTRAJUDICIAL SETTLEMENT /
SUMMARY SETTLEMENT

1. CLAIM AGAINST THE BOND OR REAL
ESTATE OR BOTH [Rule 74, Sec. 4]

Remedies:
1) If there is an undue deprivation of lawful
participation in the estate
2) The existence of debts against the estate or
undue deprivation of lawful participation
payable in money
This remedy can be availed of only within 2
years after the settlement and distribution of
the estate.
Such bond and such real estate shall remain
charged with a liability to creditors/heirs, or
other persons for the full period of 2 years after
such distribution, notwithstanding any transfers
of real estate that may have been made.
Period for claim of minor or incapacitated
person: Within 1 year after the minority or
incapacity is removed.

2. PETITION FOR RELIEF [Rule 38]

Grounds for petition for relief: FAME fraud,
accident, mistake, excusable negligence.
Period: 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.

3. REOPENING BY INTERVENTION WITHIN
REGLEMENTARY PERIOD

Who is allowed to intervene with leave of court:
A person who either:
1) Has a legal interest in the matter in
litigation;
2) Has such legal interest in the success of
either of the parties, or an interest against
both;
3) Is so situated as to be adversely affected
by a distribution/disposition of property in
the custody of the court or of an officer
thereof.
Period: Anytime before rendition of judgment
by the TC. As long as within reglementary
period of 2 years.

4. NEW ACTION TO ANNUL SETTLEMENT
WITHIN REGLEMENTARY PERIOD

Reglementary period: The 2 years, and not the
prescription period.

5. RESCISSION IN CASE OF PRETERITION OF
COMPULSORY HEIR IN PARTITION TAINTED
WITH BAD FAITH [Art. 1104, CC]

6. ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL SETTLMENT ON THE
GROUND OF FRAUD WHICH SHOULD BE
FILED WITHIN 4 YEARS FROM THE
DISCOVERY OF FRAUD [Gerona v. De
Guzman]

EXTRAJUDICIAL SETTLEMENT VS.
SUMMARY SETTLEMENT

Extra-judicial
settlement
Summary settlement
No court intervention Requires summary
judicial adjudication
Estate's value is
immaterial
Gross estate value must
not exceed P10K
There must be no
outstanding debts at the
time of settlement
Available even if there
are debts (since the
court will make
provisions for payment)
Resorted to at the
instance and by
agreement of all the
heirs
May be instituted by any
interested party, even
by a creditor of the
estate, without the
consent of all the heirs
Amount of bond is equal
to the value of the
personal property
Amount of bond is to be
determined by the court

3. JUDICIAL SETTLEMENT
THROUGH AN
ADMINISTRATOR/ EXECUTOR

PROCEDURE IN JUDICIAL SETTLEMENT
THROUGH AN ADMINISTRATOR/
EXECUTOR

Petition for probate of the will, if any
Issuance of Letters Testamentary/Administration
Filing of Claims
Payment of claims: sale/mortgage/encumbrance
of estate properties
Distribution of remainder, if any
(but can be made before payment if a bond is
filed by the heirs)
Court order fixing the time and place for probate
The court shall cause notice of such time and
place to be published 3 weeks successively in a
newspaper of general circulation. 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

Special proceedings for estate settlement may
be testate (where the deceased left a will) or
intestate (if there is no will).
There must be judicial settlement through an
administrator/executor if it does not fall under
the 2 exceptions, regardless of the existence or
non-existence of a will.
The allowance of the will shall be conclusive as
to its due execution. [Rule 75, Sec. 1]

a. VENUE AND
JURISDICTION

RTC if estate is greater than P300K (P400K in
Metro Manila).
MTC if estate is less than P300K (P400K in
Metro Manila).

AS TO THE INTRINSIC VALIDITY OF A WILL
General rule: No. The probate courts
authority is limited to:
1) Extrinsic validity of the will.
2) Due execution thereof.
3) Testators testamentary capacity.
4) Compliance with the requisites or
solemnities prescribed by law.
Exception:
PRINCIPLE OF PRACTICAL
CONSIDERATION Waste of
time/effort/expense plus added anxiety
are the practical considerations that
induce us to a belief that we might as
well meet head-on the issues of the
validity of the provisions of the will.
[Nuguid v. Nuguid]
If there is a defect that is apparent on
the face of the will. [Nepomuceno v.
CA]

b. ALLOWANCE/
DISALLOWANCE OF THE
WILL

PERSONS WHO MAY FILE PETITION [Rule 76, Sec.
1]
1) Executor;
2) Devisee/legatee named in the will;
3) Person interested in the estate;
4) Testator himself during his lifetime;
5) Any creditor as a preparatory step for filing of
his claim therein.

CONTENTS IN THE PETITION FOR PROBATE [Rule
76, Sec. 2]
1) Jurisdictional facts: Death of the testator and
his residence at the time of death or the place
where the estate was left by the decedent who
is a non-resident.
2) Names/ages/residences of the heirs, legatees,
and devisees.
3) Probable value and character of the estate
property.
4) Name of the person for whom the letters are
prayed.
5) Name of the person having custody of the will if
it has not been delivered to the court.
But no defect shall render void the
allowance of the will, or the issuance of
letters testamentary or of administration
with the will annexed.

PROCEDURE AFTER WILL IS DELIVERED TO, OR
WHEN A PETITION FOR ALLOWANCE OF A WILL IS
FILED IN, THE COURT:
1) The court shall fix a time and place for proving
the will.
Rationale: So that all concerned may
appear to contest the allowance thereof, if
such is the case.
2) The court shall cause notice of such time and
place to be published 3 weeks successively in a
newspaper of general circulation. This rule on
newspaper publication does not apply if the
probate of the will has been filed by the
testator himself.
3) The court shall give notice of the designated
time and place to:
a) Designated/known heirs, legatees and
devisees.
b) Executor and co-executor (if not the
petitioner).
The probate court acquires jurisdiction over
the interested persons and the res only
after the publication and notices are sent.
Also, if the testator himself is the one
asking for the allowance of the will, the
notice shall be sent only to his compulsory
heirs.

MODES OF NOTIFICATION [Rule 76, Sec. 4]
1) If by mail 20 days before hearing.
2) If through personal notice 10 days before
hearing.

DISALLOWANCE OF WILL [Rule 76, Sec. 9]
1) If the formalities required by law have not been
complied with
2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time
of its execution
3) If it was executed through force or 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
5) If the signature of the testator was procured by
fraud
6) If the testator acted by mistake or did not
intend that the instrument he signed should be
his will at the time of affixing his signature
thereto

c. DUTY OF CUSTODIAN/
EXECUTOR OF WILL

DUTY OF THE CUSTODIAN OF THE WILL [Rule 75,
Sec. 2]
To deliver the will within 20 days after he
knows of the death of the testator to the court
having jurisdiction or to the executor named in
the will.

DUTY OF THE EXECUTOR NAMED IN THE WILL
[Rule 75, Sec. 3]
1) It is his duty to present the will within 20 days
after (a) he knows of the death of the testator
or (b) after he knows that he is named the
executor to the court having jurisdiction, unless
the will has reached the court in any other
manner.
2) Signify to the court in writing his acceptance of
the trust or his refusal to accept it.

FAILURE TO FULFILL ABOVE DUTIES

Without a satisfactory excuse, they shall be
fined a sum not exceeding P2K. [Rule 75, Sec.
4]
If he retains the will and does not deliver it to
the court, he may be committed to prison and
kept there until he delivers the will. [Rule 75,
Sec. 5]

d. PROOF OF WILL

In the hearing for the probate of a will, the
compliance of publication and notice must first
be shown before introduction of testimony in
support of the will. [Rule 76, Sec. 5]

EVIDENCE REQUIRED IN SUPPORT OF THE
WILL

1) Uncontested wills: [Rule 76, Sec. 5]
a) Notarial wills Testimony of at least 1 of
the subscribing witnesses may be allowed,
if such witness testifies that the will was
executed as is required by law.
If all subscribing witnesses reside
outside the province Deposition is
allowed.
If the subscribing witnesses are dead,
insane, or if 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.
b) Holographic wills The testimony of 1
witness who knows the handwriting and
signature of the testator may be admitted.
In the absence thereof, the testimony of an
expert witness may be admitted. If the
testator himself petitioned for the
allowance of his holographic will, his
affirmation is sufficient evidence of the
genuineness and due execution of the will.
2) Contested wills: [Rule 76, Sec. 11]
a) Notarial wills All subscribing witnesses
and the notary public before whom the will
was acknowledged must be produced and
examined.
However, 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 if any or all of them
either:
(1) Testify against the due execution of
the will;
(2) Do not remember having attested
to it;
(3) Are otherwise of doubtful
credibility.
b) Holographic will 3 witnesses who know
the handwriting of the testator must be
produced. In the absence thereof, the
testimony of an expert witness may be
resorted to.

FACTS THAT SHOULD BE PROVED TO ALLOW A
LOST OR DESTROYED WILL [Rule 76, Sec. 6]
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/accidentally destroyed in the
lifetime of the testator without his knowledge;
and
3) The provisions of the will are clearly established
by at least 2 credible witnesses.

When a lost will is proved, the provisions
thereof must be distinctly stated and certified
by the judge, under the seal of the court, and
the certificate must be filed and recorded as
other wills are filed and recorded.

PROBATE OF LOST/DESTROYED HOLOGRAPHIC
WILL
General rule: Not allowed.
Exception: A lost/destroyed holographic
will could be proved by photostatic or xerox
copies thereof. [Rodelas v. Aranza]

PROOF OF HOLOGRAPHIC WILL IF TESTATOR
PETITIONS FOR PROBATE [Rule 76, Sec. 12]
The fact that he affirms that the holographic
will and the signature are in his own
handwriting shall be sufficient evidence of the
genuineness and due execution thereof.
If contested, the burden of disproving the
genuineness and due execution thereof shall be
on the contestant. The testator may present
such additional proof as may be necessary to
rebut the evidence for the contestant.

e. e. e. e. CONTEST TO WILL CONTEST TO WILL CONTEST TO WILL CONTEST TO WILL

Procedure: The person contesting the will must
state his opposition in writing and serve a copy
thereof on the petitioner and other parties
interested in the estate. [Rule 76, Sec. 10]

f. ALLOWANCE OF WILL
PROVED OUTSIDE THE
PHILIPPINES

A will allowed/probated in a foreign country
must be reprobated in the Philippines.
Administration of an estate extends only to the
assets of the decedent found within the state or
country where it was granted. The
administrator appointed in one state has no
power over property in another state or
country. [Leon & Ghezzi v. Manufacturer Life
Insurance]
Petition to be filed in the RTC. The RTC where
such petition is filed shall fix a time and place
for the hearing and cause notice thereof to be
given as in case of an original will presented for
allowance. [Rule 77, Sec. 1 and 2]

PROOF IN THE REPROBATE OF THE FOREIGN WILL
[Suntay v. Suntay]
1) The testator had his domicile in the foreign
country;
2) The will has been admitted to probate in such
country;
3) The fact that the foreign tribunal is a probate
court;
4) The law on probate procedure of the said
foreign country and proof of compliance
therewith;
5) The legal requirements in said foreign country
for the valid execution of the will.

EFFECTS OF REPROBATE [Rule 77, Sec. 3 and 4]
1) The will shall have the same effect as if
originally proved and allowed in the Philippines.
2) Letters testamentary or administration with a
will annexed shall extend to all estates of the
Philippines.
3) Such estate, after the payment of just debts
and expenses of administration, shall be
disposed of according to the will, so far as such
will may operate upon it, and the residue, if
any, shall be disposed of as provided by law in
cases of estates in the Philippines belonging to
persons who are inhabitants of another
country.

g. LETTERS TESTAMENTARY/
ADMINISTRATION

QUALIFICATIONS

PERSONS WHO MAY BE
EXECUTORS/ADMINISTRATORS
1) EXECUTOR The person named in the will to
administer the decedents estate and carry out
the provisions thereof.
2) ADMINISTRATOR (regular or special) The
person appointed by the court to administer the
estate where the decedent died intestate.
An administrator may also be 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.
3) A corporation/association authorized to conduct
the business of a trust company in the
Philippines may be appointed as an executor,
administrator, guardian of an estate, or
trustee, in like manner as an individual; but it
shall not be appointed guardian of the person
of a ward. [Art. 1060, CC]
4) The marriage of a single woman also shall not
affect her authority to serve under a previous
appointment. [Rule 78, Sec. 3]

PERSONS WHO ARE INCOMPETENT TO SERVE AS
EXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1
and 2]
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.
b) Improvidence.
c) Want of understanding/integrity.
d) Conviction of an offense involving moral
turpitude.
4) The executor of an executor cannot administer
the estate of the first testator.

Executor Administrator
Nominated by the
testator and appointed
by the court
Appointed by the court if
the testator did not
appoint, of if the
appointee is
incapacitated or refused
Duty to present the will
to court
No such duty
Testator may provide
that executor may serve
without bond (but the
court may direct him to
give bond to pay debts)
Administrator must
always give a bond
Compensation may be
provided for by the
testator in the will;
otherwise, Rule 85, Sec.
7 shall apply
Compensation is to be
governed by Rule 85,
Sec. 7

SEVERAL CO-EXECUTORS NAMED IN THE WILL BUT
NOT ALL CAN ACT
If all of the named co-executors cannot act
because of incompetency, refusal to accept the
trust, or failure to give bond, on the part of one
or more of them, letters testamentary may
issue to such of them as are competent, accept
and give bond, and they may perform the
duties and discharge the trust required by the
will. [Rule 78, Sec. 5]

ORDER OF PREFERENCE IN GRANTING LETTERS OF
ADMINISTRATION
1) Surviving spouse or next of kin.
NEXT OF KIN Those persons who are
entitled under the statute of distribution to
the decedents property.
2) Any one or more of the principal creditors.
3) Stranger.

Rationale: The underlying assumption is that
those who will reap the benefits of a
wise/speedy/economical administration of the
estate or those who will most suffer the
consequences of
waste/improvidence/mismanagement, have the
higher interest and most influential motive to
administer the estate correctly.
Letters of administration may be granted to
any person or any other applicant even if there
are other competent persons with a better right
to the administration, if such persons fail to
appear when notified and claim the letters to
themselves. [Rule 79, Sec. 6]
If a petition for letters of administration is filed,
such court shall fix a time and place for hearing
the petition and shall cause notice thereof to be
given to the known heirs and creditors of the
decedent, and other persons believed to have
an interest in the estate. [Rule 79, Sec. 3]

OPPOSITION TO ISSUANCE

OPPOSITION OF THE ISSUANCE OF LETTERS
TESTAMENTARY [Rule 79, Sec. 1]
Any interested person in the will.
He should state the grounds in writing why he
is opposing and he may attach a petition for
letters of administration.

CONTENTS OF A PETITION [Rule 79, Sec. 2]
1) Jurisdictional facts.
2) Names/ages/residences of heirs and creditors.
3) Probable value and character of the estate.
4) Name of the person for whom the letters are
prayed for.

But no defect in the petition shall render void
the issuance of letters of administration

GROUNDS FOR OPPOSING [Rule 79, Sec. 4]
1) in Letters Testamentary:
Incompetence.
2) in Letters of Administration:
Incompetence.
Preferential right under Rule 78, Sec. 6.

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SPECIAL ADMINISTRATORS

Court EEs should not be appointed special
administrators as their objectivity and
impartiality may be compromised by
extraneous considerations.[Medina v. CA]
The order of preference in the appointment of
regular administrators does not apply to the
appointment of a special administrator, but
such order of preference may be followed by
the judge in the exercise of sound discretion.
[Matias v. Gonzales]
Similarly, the grounds for the removal of the
regular administrator do not apply strictly to
the special administrator as he may be
removed by the court on other grounds in its
discretion. [Junquera v. Borromeo]
The order appointing a special administrator is
an interlocutory and is not appealable. [Garcia
v. Flores]

WHEN APPOINTED
1) Delay in granting of letters including appeal in
the probate of the will. [Rule 80, Sec. 1]
2) Executor is a claimant of the estate he
represents. [Rule 86, Sec. 8]
In this case, the administrator shall have
the same powers as that of a general
administrator.

Regular administrator Special administrator
Appointment may be the
subject of appeal
Appointment is an
interlocutory order and
may not be the subject of
an appeal
One of the obligations is
to pay the estate's debts
He cannot pay the estate's
debts
Appointed if decedent
died intestate or did not
appoint an
administrator, or if the
appointee refused or is
not qualified
Appointed if there is delay
in granting letters
testamentary or letters of
administration, or if the
executor is a claimant of
the estate he represents

DUTIES AND GENERAL POWERS OF
ADMINISTRATORS AND SPECIAL
ADMINISTRATORS

DUTIES/POWERS OF THE GENERAL
ADMINISTRATOR
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 make improvements on the properties under
administration with the necessary court
approval except for necessary repairs.
4) To maintain in tenantable repair the houses
and other structures and fences and to deliver
the same in such repair to the heirs or devisees
when directed to do so by the court.
5) To possess and manage the estate when
necessary for (1) the payment of debts, and
(2) for the payment of expenses of
administration.
6) Make a true inventory and appraisal of all
real/personal property of decedent within 3
months after his appointment (except clothes
of family, marriage bed, and other articles for
subsistence of family).
7) To render true an just account of his
administration within 1 year of appointment.
8) To perform all orders by the court.
9) Discharge all debts/legacies/charges as shall be
decreed by the court.
10) Give allowance to legitimate surviving spouse
or children of the decedent if the court decrees
such (grandchildren are not entitled).

DUTIES/POWERS OF THE SPECIAL
ADMINISTRATOR
1) Possession and charge of the goods, chattels,
rights, credits and estate of the deceased.
2) Preserve the same.
3) Commence and maintain suit for the estate.
4) Sell only: (1) perishable property; and (2)
property ordered by the court.
5) Pay debts only as may be ordered by the court.
6) Make a true inventory and appraisal of all
real/personal property of decedent within 3
months after his appointment (except clothes
of family, marriage bed, and other articles for
subsistence of family).
7) To render true an just account of his
administration within 1 year of appointment.
8) To perform all orders by the court.
9) Give allowance to legitimate surviving spouse
or children of the decedent if the court decrees
such (grandchildren are not entitled).
10) Deliver property he received to person
appointed as executor or administrator or to
such other person as may be authorized by the
court.

RESTRICTIONS ON THE POWER OF AN
ADMINISTRATOR/EXECUTOR
1) Cannot acquire by purchase, even at public or
judicial auction, either in person or mediation
of another, the property under administration.
2) Cannot borrow money without authority of the
court.
3) Cannot peculate with funds under
administration.
4) Cannot lease the property under administration
for more than 1 year.
5) Cannot continue the business of the deceased
unless authorized by the court.
6) Cannot profit by the increase/decrease in the
value of the property under administration.

POWERS OF A NEW EXECUTOR/ADMINISTRATOR
(AFTER THE FIRST RESIGNS, IS REMOVED, OR
REVOKED)
1) Collect and settle the estate not administered.
2) Prosecute/defend actions commenced by or
against the former executor/administrator.
3) Recover execution on judgments in the name
of former executor/administrator.

BOND
A bond is necessary. Even if the testator
provides that the executor shall serve without a
bond, the court may still require the executor
to give a bond, but the only condition which
attaches to the bond is the payment of the
debts of the testator. [Rule 81, Sec. 2]
Additional bond may be required:
1) When there is a change in circumstances of
the executor/administrator or for other
sufficient cause. [Rule 81, Sec. 2]
2) In case of sale/mortgage/encumbrance of
the property of the estate conditioned that
the administrator/executor account for the

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proceeds of the sale or encumbrance. [Rule
89, Sec. 7(c)]
For joint executors and administrators: The
court may take separate bonds from each or a
joint bond from all. [Rule 81, Sec. 3]

ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS

ACCOUNTABILITY FOR THE ENTIRE ESTATE:
The executor/administrator is accountable for
the entire estate of the deceased. However, he
is not accountable for properties which never
came to his possession. [Rule 85, Sec. 1]
However, he would still be liable for properties
which never came to his possession if through
unfaithfulness to the trust or his own fault or
lack of necessary action, the
executor/administrator failed to recover part of
the estate which came to his knowledge.
Generally, the executor/administrator is not
liable for debts due the estate which are not
yet paid; unless it remained uncollected
because of his fault. [Rule 85, Sec. 1]
Income from realty when used by the
administrator/executor: The administrator shall
account for it as may be agreed upon by him
and the parties interested, or adjusted by the
court with their assent. If the parties do not
agree upon the sum to be allowed, the same
may be ascertained by the court whose
determination shall be final. [Rule 85, Sec. 4]
Neglects or delays to raise or pay money: The
administrator shall be liable therefore on his
bond. [Rule 85, Sec. 5]

EXPENSES OF ADMINISTRATION
Expenses necessary for the management of the
property, for protecting it against destruction
or deterioration, and possibly for the
production of fruits.

COMPENSATION TO EXECUTOR/ADMINISTRATOR
[Rule 85, Sec. 7]
That provided by the will is controlling.
However, if there is no compensation provided,
the compensation shall be either:
1) P4/day for the time actually and necessarily
employed;
2) Commission upon the value of so much of
the estate as comes into his possession and
finally disposed of by him;
3) 2% of the first P5K, 1% in excess of P5K up
to P30K, % in excess of P30K up to
P100K, and % in excess of P100K.
For 2 or more executors/administrators: The
compensation shall be apportioned among
them by the court according to the services
actually rendered by them respectively.
Charge of legal fees rendered by
executor/administrator to the estate: Not
allowed.

RENDER OF ACCOUNT
Within 1 year from receiving letters
testamentary/letters of administration. [Rule
85, Sec. 8]
The court also may examine the
executor/administrator upon oath as to any
matter relating to the account rendered by him.
[Rule 85, Sec. 9]
Before the account is allowed, notice shall be
given to interested persons in order for them
for examination. [Rule 85, Sec. 10]

REVOCATION OF ADMINISTRATION;
DEATH/RESIGNATION/REMOVAL OF
ADMINISTRATORS AND EXECUTORS

ROLE OF ADMINISTRATOR IF A WILL IS
DISCOVERED
If the letters of administration have been
granted because of the belief that the decedent
had died intestate, and then a will is discovered
and allowed by the court, the administration
shall be revoked and the administrator shall
surrender the letters of administration to the
court and render his account of administration.
It is within the courts discretion on WON the
intestate proceeding should be discontinued
and a new proceeding should be constituted.
The discovery of a will does not ipso facto
nullify the administration unless the will has
been proved and allowed. [De Parreo v
Aranzanso]
Acts of the administrator done before his
removal/resignation/revocation are valid unless
proven otherwise. [Rule 82, Sec.3]

GROUNDS FOR REMOVAL OF
EXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2]
1) Neglect to render accounts (within 1 year when
the court directs).
2) Neglect to settle estate according to the ROC.
3) Neglect to perform an order/judgment of the
court or a duty expressly provided by the ROC.
4) Absconding.
5) Insanity or incapacity or unsuitability to
discharge the trust

h. h. h. h. CLAIMS AGAINST THE CLAIMS AGAINST THE CLAIMS AGAINST THE CLAIMS AGAINST THE
ESTATE ESTATE ESTATE ESTATE

STATUTE OF NON-CLAIMS

Definition: Period fixed by the ROC for the
filing of claims against the estate for
examination and allowance. The Statute of
Non-Claims applies only to claims that do not
survive.

PERIOD FOR CLAIMS [Rule 86, Sec. 2]
General rule: Within the time fixed in the
notice which shall not be more than 12 months
nor less than 6 months after the date of the
first publication. Otherwise, the claims are
barred forever.
Even if the testator acknowledged the debt
in his will and instructed the executor to
pay such debt, the Statute of Non-Claims
must still be complied with.
Exception: 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 not exceeding 1 month from the order
allowing belated claims (the order may be
in open court or not).

The Statute of Non-Claims and the Statute
of Limitations must concur in order for a
creditor to collect.
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.

CLAIMS THAT DO NOT SURVIVE [Rule 86, Sec. 5]
1) Money claims, debts incurred by the 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 or for the last
illness of the decedent.
3) Judgment for money against decedent.

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.

NOTICE REQUIREMENT IN CLAIMING AGAINST THE
ESTATE:
1) The court, after granting letters
testamentary/letters of administration, may
immediately issue notices to creditors to file
their claims.
2) This notice must be published for 3 successive
weeks in a newspaper of general circulation
and province, and post the same in 4 public
places in the province and 2 public places in
the municipality where the decedent last
resided.
3) Within 10 days after the notice has been
published and posted in accordance with the
preceding section, the executor/administrator
shall file or cause to be filed in the court a
printed copy of the notice accompanied with an
affidavit setting forth the dates of the first and
last publication thereof and the name of the
newspaper in which the same is printed.

SOLIDARY OBLIGATION OF DECEDENT

The claim shall be filed against the decedent as
if he were the only debtor, without prejudice to
the right of the estate to recover contribution
from the other debtor. [Rule 86, Sec. 6]
If the obligation of the decedent is joint with
another debtor: The claim shall be confined to
the portion belonging to him. [Rule 86, Sec. 6]

MORTGAGE DEBT DUE FROM ESTATE

Remedies of a creditor holding a claim against
the deceased secured by a mortgage or other
collateral security: [Rule 86, Sec. 7]
1) ABANDON 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 (judicial or extrajudicial) the
same at anytime within the period of the
Statute of Limitations but he cannot be
admitted as creditor and shall receive no
share in the distribution of the other assets
of the estate.
These remedies are alternative; the availment
of one bars the availment of the other
remedies.

EXECUTORS/ ADMINISTRATORS CLAIM
AGAINST THE ESTATE

If executor/administrator has a claim: He shall
give notice to the court in writing and the court
thereafter shall appoint a special administrator.
[Rule 86, Sec. 8]

PROCESS FOR CLAIMS [Rule 86, Sec. 10]

1) Deliver the claim with the necessary vouchers
to the clerk of court.
2) Serve a copy thereof on the
executor/administrator.
3) If the claim is due, it must be supported by
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.
5) Executor must file his answer to the claim
within 15 days after service of a copy of the
claim.
Answer should contain:
Either admit or deny the claim and set
forth the substance of the matters
which are relied upon to support such
admission or denial.
If the executor/administrator has no
knowledge sufficient to enable him to
admit or deny specifically, he shall
state such want of knowledge.
The answer must also set forth claims
which the decedent has against the
claimant or else it will forever be
barred.
A claim admitted by the
executor/administrator may be opposed by
an heir/legatee/devisee. [Rule 86, Sec. 11]
The court may refer contested claims to a
commissioner. [Rule 86, Sec. 12]

APPEAL FROM JUDGMENT ON A CLAIM
AGAINST ESTATE

Judgment is appealable like in ordinary cases.
A judgment against executor/administrator
shall be that he pay the amount ascertained to
be due and shall not create any lien upon the
property of the estate, or give the judgment
creditor any priority of payment. [Rule 86, Sec.
13]
The mode of appeal is record on appeal and
must be filed within 30 days from notice of
judgment.
When the executor /administrator admits and
offers to pay part of a claim, and the claimant
refuses to accept the amount offered in
satisfaction of his claim, if he fails to obtain a
more favorable judgment, he cannot recover
costs, but must pay to the
executor/administrator costs from the time of
the offer. Where an action commenced against
the deceased for money has been discontinued
and the claim embraced therein presented as in

this rule provided, the prevailing party shall be
allowed the costs of his action up to the time of
its discontinuance. [Rule 86, Sec. 14]

i. ACTIONS BY OR AGAINST
EXECUTORS/
ADMINISTRATORS

Heirs may not sue the executor/administrator
for recovery of property left by the decedent
until there is an order of the court assigning
such lands to such heir or until the time for
paying debts has expired. [Rule 87, Sec. 3]

CLAIMS THAT SURVIVE

CLAIMS THAT SURVIVE - Actions that may
be commenced directly against the executor
and administrator. [Rule 87, Sec. 1]
1) Recovery of real/personal property (or any
interest therein) from the estate.
2) Enforcement of a lien thereon.
3) Action to recover damages arising from
tort.

CLAIMS THAT DO NOT SURVIVE [Rule 86,
Sec. 5]

1) Money claims, debts incurred by the 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 or for the last
illness of the decedent.
3) Judgment for money against decedent.

PROCEEDINGS ON MORTGAGE DUE
ESTATE

Executor/administrator can foreclose a
mortgage belonging to the decedent. [Rule 87,
Sec. 5]

PROCEEDINGS WHERE PROPERTY CONCEALED,
EMBEZZLED, OR FRAUDULENTLY CONVEYED
Concealment/embezzlement/conveyance away
any of the property of the deceased: The court
may cite such suspected person to appear
before it and examine him on oath on the
matter of such complaint. [Rule 87, Sec. 6]
If the suspected person refuses to appear or to
answer questions asked him during the
examination, the court may punish him for
contempt and may commit him to prison until
he submits to the order of the court. [Rule 87,
Sec. 6]
If even before the granting of the letters
testamentary/letters of administration, such
person shall be liable for double the value of
the property sold, embezzled, or alienated to
be recovered for the benefit of the estate. [Rule
87, Sec. 8]
If decedent who fraudulently conveys the
property to defraud creditors and there is a
deficiency of assets in the hands of the
administrator: Executor/administrator may
commence and prosecute an action for the
recovery of such property for the benefit of
credits BUT he shall not be bound to commence
the action unless either: [Rule 87, Sec. 9]
1) The creditors making the application pay
such part of the costs and expenses;
2) Give security therefore to the
executor/administrator.
Requisites before creditor may bring action
[Rule 87, Sec. 10]
1) There is a deficiency of assets in the hands
of an executor/administrator for the
payment of debts and expenses of
administration.
2) In his lifetime, the deceased 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 other
creditors.
3) The subject of the attempted conveyance
would be liable to attachment in his
lifetime.
4) The executor/administrator has shown no
desire to file the 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/administrator.
The last 3 requisites are unnecessary where the
grantee is the executor/administrator himself,
in which event, the action should be in the
name of all the creditors.

PROCEEDINGS WHERE PROPERTY
ENTRUSTED BY EXECUTOR/
ADMINISTRATION TO 3RD PERSON [Rule
87, Sec. 7]

Complaint of executor/administrator against
person entrusted with estate: The court may
require such person entrusted with the estate
to appear before it and render a full account of
all property which came into his possession.
Refusal to appear or give an accounting may be
punished with contempt.

j. PAYMENT OF DEBTS OF THE
ESTATE

IF ESTATE IS SUFFICIENT

General rule: The payment of the debts of the
estate must be taken: (a) from the portion or
property designated in the will; (b) from the
personal property; and (c) from the real
property, in that order. If there is still a
deficiency, it shall be met by contributions by
devisees, legatees, or heirs who have been in
possession.[Rule 88, Sec. 2, 3 and 6]
Exception: Instances when realty can be
charged first:
1) When the personal property is not
sufficient. [Rule 88, Sec. 3]
2) Where the sale of such personalty
would be detriment of the participants
(everyone) of the estate. [Rule 88, Sec.
3]
3) When sale of personal property may
injure the business or interests of those
interested in the estate. [Rule 89, Sec.
2]
4) When the testator has not made
sufficient provision for payment of such

debts/expenses/legacies. [Rule 89,
Sec. 2]
5) When the decedent was, in his lifetime,
under contract, binding in law, to deed
real property to beneficiary. [Rule 89,
Sec. 8]
6) When the decedent during his lifetime
held real property in trust for another
person. [Rule 89, Sec. 9]
Requisites for exception to ensue:
1) Application by executor/administrator;
2) Written notice to persons interested;
3) Hearing.
The same principles apply if the debt of the
estate is in another country.
The court may authorize an
executor/administrator to
sell/mortgage/encumber real estate acquired
by him on execution or foreclosure sale, under
the same circumstances and under the same
regulations as prescribed in this rule for the
sale/mortgage/encumbrance of other real
estate.
If testator orders the payment of a debt he
believes he owes but does not in fact owe: The
disposition shall be considered as not written. If
as regards a specified debt more than the
amount thereof is ordered paid, the excess is
not due, unless a contrary intention appears.
Order of the sale of personal property: [Rule
89,Sec. 1]
1) To pay the debts and expenses of
administration;
2) To pay legacies;
3) To cover expenses for the preservation of
the estate.

EXCEPTIONS;
SALE/MORTGAGE/ENCUMBRANCE OF
REALTY EVEN IF PERSONALTY IS
SUFFICIENT TO PAY DEBTS

WHEN REALTY IS CHARGED FIRST
1) When the personal property is not sufficient.
[Rule 88, Sec. 3]
2) Where the sale of such personalty would be
detriment of the participants (everyone) of the
3) When sale of personal property may injure the
business or interests of those interested in the
4) When the testator has not made sufficient
provision for payment of such
debts/expenses/legacies. [Rule 89, Sec. 2]
5) When the decedent was, in his lifetime, under
contract, binding in law, to deed real property
to beneficiary. [Rule 89, Sec. 8]
6) When the decedent during his lifetime held real
property in trust for another person. [Rule 89,
Sec. 9]

REGULATIONS FOR GRANTING AUTHORITY TO
SELL/MORTGAGE/ENCUMBER ESTATES [Rule 89,
Sec. 7]
1) The executor/administrator shall file a written
petition setting forth the debts due from the
deceased, the expenses of administration, the
legacies, the value of the personal estate, the
situation of the estate to be
sold/mortgaged/encumbered, and such other
facts as show that the
sale/mortgage/encumbrance is necessary or
beneficial;
2) The court shall thereupon fix a time and
place for hearing such petition, and cause
notice stating the nature of the petition, the
reason for the same, and the time and place
of hearing, to be given personally or by mail to
the persons interested, and may cause such
further notice to be given, by publication or
otherwise, as it shall deem proper;
3) If the court requires it, the
executor/administrator shall give an additional
bond, in such sum as the court directs,
conditioned that such executor/administrator
will account for the proceeds of the
sale/mortgage/encumbrance;
4) If the requirements in the preceding
subdivisions of this section have been complied
with, the court, by order stating such
compliance, may authorize the
executor/administrator to
sell/mortgage/encumber, in proper cases, such
part of the estate as is deemed necessary, and
in case of sale the court may authorize it to be
public or private, as would be most beneficial
to all parties concerned. The
executor/administrator shall be furnished with
a certified copy of such order;
5) If the estate is to be sold at auction, the mode
of giving notice of the time and place of the
sale shall be governed by the provisions
concerning notice of execution sale;
6) There shall be recorded in the registry of deeds
of the province in which the real estate
thus sold/mortgaged/encumbered is situated,
a certified copy of the order of the court,
together with the deed of the
executor/administrator for such real estate,
which shall be as valid as if the deed had been
executed by the deceased in his lifetime.

If sale/mortgage/encumbrance of the property
of the decedent prevented by an interested
person: That person can give a bond, in a sum
fixed by the court, conditioned to pay the
debts, expenses of administration, and
legacies, and such bond shall be for the
security of the creditors, as well as of the
executor/administrator, and may be prosecuted
for the benefit of either. [Rule 89, Sec. 3]
Effect if the sale, mortgage, or encumbrance of
the decedents property is done without notice:
Void. Since the heirs are the presumptive
owners, they succeed to the rights and
obligations of the deceased at the moment of
the latters death, and are the persons directly
affected by the sale/mortgage and therefore
cannot be deprived of the property, except in
the manner provided by law. [Maneclang v.
Baun]

PAYMENT OF CONTINGENT CLAIMS [Rule
88, Sec. 4]

CONTINGENT CLAIM Claim that is subject
to the happening of a future uncertain event.
If the court is satisfied that a contingent claim
duly filed is valid, it may order the
executor/administrator to retain in his hands
sufficient estate to pay such contingent claim
when the same becomes absolute, or, if the
estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors.
Requisites for the estate to be retained to meet
contingent claims:

1) Contingent claim is duly filed within the 2
year period allowed for the creditors to
present claims;
2) Court is satisfied that the claim is valid;
3) The claim has become absolute.
If contingent claim that is not presented after
becoming absolute within the 2 year period
allowed: The assets retained in the hands of
the executor/administrator, not exhausted in
the payment of claims, shall be distributed by
the order of the court to the persons entitled to
the same; but the assets so distributed may
still be applied to the payment of the claim
when established, and the creditor may
maintain an action against the distributees to
recover the debt, and such distributees and
their estates shall be liable for the debt in
proportion to the estate they have respectively
received form the property of the deceased.

CONTRIBUTIVE SHARE OF
DEVISEES/LEGATEES/HEIRS IN
POSSESSION OF PORTIONS OF ESTATE
FOR DEBTS

If heirs have taken possession of portions of
the estate before the debts have been settled,
they shall become liable to contribute for the
payment of debts and expenses, and the court
may, after hearing, settle the amount of their
several liabilities, and order how much and in
what manner each person shall contribute.
[Rule 88, Sec. 6]

PAYMENT IF ESTATE INSOLVENT OR
ASSETS INSUFFICIENT

If insufficient estate to pay all debts: The
executor/administrator shall pay the debts
according to the concurrence and preference of
credits provided by Art. 1059 and 2239-2251,
CC. [Rule 88, Sec. 7]
After following the order of preference of
credits, if all the creditors belonging to that
class cannot be paid in full, then all of them will
suffer a reduction in proportion to that creditors
claim No creditor of any one class shall receive
any payment until those of the preceding class
are paid. [Rule 88, Sec. 8]
Estate of an insolvent non-resident disposed of:
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. [Rule 88,
Sec. 9]
Claim proven outside the Philippines against an
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. The
claims of foreign creditors against insolvent
non-residents and against insolvent residents
would not be able to recover from the estate if
there is no reciprocity with that creditors
country granting the same benefit to Filipinos.
[Rule 88, Sec. 10]
However, the benefit of this and the pre-
ceding sections shall not 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 and the
other creditors, according to their
respective claims.

ORDER OF PAYMENT OF DEBTS

Before the expiration of the time limited for the
payment of debts (1 year, but may be
extended), the court shall order the payment
thereof. [Rule 88, Sec. 11]
The court may suspend the order for the
payment of debts or may order the distribution
if an appeal is taken, among the creditors
whose claims are definitely allowed, leaving in
the hands of the executor/administrator
sufficient assets to pay the claim disputed and
appealed. [Rule 88, Sec. 12]

TIME FOR PAYMENT OF DEBTS AND
LEGACIES; PERIOD FOR SUCCESSOR OF
DECEASED ADMINISTRATOR/EXECUTOR
[Rule 88, Sec. 15 and 16]

Need not exceed 1 year in the first instance;
but court may extend on application of
executor/administrator and after hearing and
notice thereof.
Extension must not exceed 6 months for single
extension. The whole period allowed to the
original executor/administrator shall not exceed
2 years.
The successor of dead executor/administrator
may be allowed an extension not to exceed 6
month.

k. SALES AND CONVEYANCE OF
PERSONALTY/REALTY FOR
OTHER REASONS

WHEN BENEFICIAL TO INTERESTED
PERSONS

Authorization of sale as beneficial to interested
persons: [Rule 89, Sec. 4]
1) Upon application by the
executor/administrator and on notice to
interested persons (heirs/devisees, etc.),
the court may authorize the
executor/administrator to sell the whole or
part of the estate.
2) Authority shall not be granted if
inconsistent with the provisions of a will.
The proceeds of such sale shall be assigned
to the persons entitled to the estate in the
proper proportions.

CONVEYANCE OF REALTY WHICH
DECEASED CONTRACTED TO CONVEY
DURING LIFETIME

AUTHORIZATION OF CONVEYANCE OF REALTY
WHICH DECEASED CONTRACTED TO CONVEY [Rule
88, Sec. 8]
If the decedent was in his lifetime under
contract, binding in law, to deed real property
on an interest therein, the court may authorize
the executor/administrator to convey such
property according to such contract, or with

such modifications as are agreed upon by the
parties and approved by the court.
If the property is to be conveyed to the
executor/administrator, it is the clerk of court
which shall execute the deed.

PROCEDURE
There should be an application for such
purpose and notice should be given to the
interested persons and such further notice, by
publication or otherwise, as the court deems
proper. [Rule 89, Sec. 8]
While Rule 89, Sec. 8 does not specify who
should file the application, it stands to
reason that the proper party must be one
who is to be benefited/injured from the
judgment or one who is entitled to the
avails of the suit (i.e. even people not the
executor/administrator can file the
application). [Heirs of Spouses Sandejas v.
Lina]

CONVEYANCE OF REALTY WHICH
DECEASED HELD IN TRUST

Authorization of conveyance of realty which the
deceased held in trust: Following the notice
requirement required as in the case where the
decedent was under contract to convey realty,
the court may allow the executor/administrator
to deed such property to the person for whose
use and benefit the property was held. The
court may order the execution of such trust
whether by deed or by law. [Rule 89, Sec. 9]

l. PARTITION AND
DISTRIBUTION OF ESTATE

WHEN ORDER FOR DISTRIBUTION OF
RESIDUE IS MADE

General rule: Order of distribution shall be
made after payment of all debts, funeral
expenses, expenses for administration,
allowance of widow, and inheritance taxes.
[Rule 90, Sec. 1]
Exception: If the distributes or any of
them gives a bond conditioned for the
payment of said obligation, the order of
distribution may be made even before the
payment of the debts and expenses.
Title to the property is vested from the finality
of the order of distribution. An order which
determines the distributive share of heirs is
appealable. If not appealed, it becomes final.

PROCEDURE [Rule 90, Sec. 1, 2 and 4]

1) There should be an application by the
executor/administrator or any person
interested in the estate.
2) The requirements for notice and hearing must
be fulfilled.
3) Certified copies of final orders and judgments
of the court relating to the real estate or the
partition thereof shall be recorded in the
registry of deeds of the province where the
property is situated.
4) The final order of the court as to questions on
advancement shall be binding on the person
raising the questions and on the heir.

EXPENSES OF PARTITION [Rule 90, Sec. 3]

General rule: If there are sufficient effects in
the hands of the executor/administrator, and if
it not inconsistent with the intention of the
testator, then such may be applied for the
payment of the expenses of partition.
Exception: If it cannot be paid by the
executor/administrator, it should be paid
by the parties in proportion to their
respective shares or interest in the estate,
and the apportionment shall be settled and
allowed by the court.
Person interested in the partition does not
pay his proportion/share of the expenses of
partition, the court may issue an execution
in the name of the executor/administrator
against him.

REMEDIES AGAINST JUDGMENT OF
PARTITION

Partition may be set aside only if interested
party is left out by reason of circumstances
beyond his control or mistake/inadvertence not
imputable to negligence.
Remedies: Motion to reopen within the 30-day
reglementary period; then appeal from the
order of denial (the latter is not an independent
action.
Since it is a proceeding in rem, all interested
persons have constructive notice, and
jurisdiction of probate court is exclusive.
Non-distribution of estate is not a ground for
reopening. Remedy for such case is a
motion for execution, or, if beyond the
reglementary period, a separate action for
recovery of shares.

III. GUARDIANSHIP

PROCEDURE FOR GUARDIANSHIP UNDER
RULES 92-97

DEFINITION

KINDS OF GUARDIANS [Regalado]
1) LEGAL GUARDIAN Deemed as guardian by
provision of law, without need of court
appointment. [Art. 320, CC; Art. 225, FC]
2) GUARDIAN AD LITEM Appointed by the
courts of justice to prosecute or defend a
minor, insane or person declared to be
incompetent, in a court action.
3) JUDICIAL GUARDIAN Appointed by the
court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or
deceased war veterans and other incompetent
persons.
a) Guardian over the person;
b) Guardian of the property;
c) GENERAL GUARDIAN Has custody and
care of the wards person and property.

BASIS
It is the States duty to protect the rights of
persons/individuals who because of
age/incapacity are in an unfavorable position
vis--vis other parties. This parens patriae is
inherent in the supreme power of the State. It
is a most beneficent function and often
necessary to be exercised in the interest of
humanity and for the prevention of injury to
those who cannot protect themselves. [Nery v.
Lorenzo, (1972)]

NECESSITY
Jurisdiction over an incompetents person
cannot be had unless a guardian was appointed
upon whom summons and notice of the
proceedings may be served. [Gorostiaga v.
Sarte]

SCOPE AND APPLICABILITY

Rules 92-97 have been amended by AM-03-02-
05-SC (April 1, 2003). Guardianship of
incompetents who are not minors continues to
be under the jurisdiction of the regular courts
and governed by Rules 92-97. Guardianship of
minors, however, is now governed by AM-03-
02-05-SC. [Regalado]
In a guardianship case, if an issue arises as to
who has the better right/title to the properties
conveyed in the guardianship proceedings, the
issue should be threshed out in a separate
ordinary action as it is beyond the jurisdiction
of the guardianship court. [Parco v. CA (1982)]
However, where the wards right/title to the
property is clear and indisputable, the
guardianship court may issue an order directing
its delivery/return. [Paciente v. Dacuycuy
(1982)]

INCOMPETENTS [Rule 92, Sec. 2]

1) Persons suffering the penalty of civil
interdiction;
2) Hospitalized lepers;
3) Prodigals;
4) Deaf and dumb who are unable to read and
write;
5) Those who are of unsound mind, even though
they have lucid intervals;
6) Persons not being 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, thereby becoming an easy prey for
deceit and exploitation.

TRANSFER OF VENUE [Rule 92, Sec. 3]

The court taking cognizance of a guardianship
proceeding may transfer the same to the court
of another province/municipality wherein the
ward has acquired real property, if he has
transferred thereto his bona-fide residence. The
latter court shall have full jurisdiction to
continue the proceedings, without requiring
payment of additional court fees.

PETITION FOR APPOINTMENT OF A
GUARDIAN

WHO MAY PETITION
1) For resident incompetents: [Rule 93, Sec. 1]
a) Any relative/friend/person on behalf of the
incompetent who has no parent or lawful
guardian;
b) Health Secretary, in favor of:
(1) an insane person who should be
hospitalized;
(2) an isolated leper.
2) For non-resident incompetents: [Rule 93, Sec.
6]
a) Any relative/friend;
b) Anyone interested in the incompetents
estate.
If the interested person is a creditor
and mortgagee of the wards estate, he
cannot be appointed guardian of the
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

Termination of guardianship

wards person and property. No man
can serve two masters. [Garchitorena
v. Sotelo]

PETITIONS CONTENTS [Rule 93, Sec. 2]
1) Jurisdictional facts;
2) Incompetency rendering the appointment
necessary/convenient;
3) Names/ages/residences of the incompetents
relatives, and of the persons having him in
their care;
4) Estates probable value and character;
5) Name of the person for whom letters of
guardianship are prayed.

The petition shall be verified; but no defect in
the petition or verification shall render void the
issuance of letters of guardianship. [Rule 93,
Sec. 2]

HEARING

When a petition is filed, the court shall fix a
time and place for hearing. The court shall
cause notice to be given to the persons
mentioned in the petition residing in the
province, including the incompetent himself.
[Rule 93, Sec. 3]
Notice to the wards relatives is a jurisdictional
requirement. [Yangco v. CFI]

OPPOSITION [Rule 93, Sec. 4]
Any interested person may file a written
opposition and pray that:
1) Petition be dismissed;
2) Letters of guardianship issue to himself or
to any suitable person named in the
opposition.
Grounds for opposition:
1) Competency of the alleged incompetent;
2) Unsuitability of the person for whom letters
are prayed.

CONSIDERATIONS IN THE CHOICE OF THE
GUARDIAN [Francisco v. CA (1984)]
The court may consider the financial situation,
the physical condition and sound judgment,
prudence and trustworthiness, the morals,
character and conduct, and the present and
past history of a prospective appointee, as well
as the probability of his being able to exercise
the powers and duties of a guardian for the full
period during which guardianship will be
necessary.
The courts should not appoint as a guardian
any person who is not personally subject to
their jurisdiction (e.g. non-residents).
[Guerrero v. Teran]
The best interests of a ward can override
procedural rules and even the rights of parents
to the custody of their children.
A person who is incompetent to act as an
executor/administrator does not necessarily
need to be placed under guardianship. But if a
person is incompetent to act as executor or
administrator, then he is not the incompetent
person envisaged in the law of guardianship.
[Lopez Vda. De Baluyot v. Ines-Luciano (1976)]

GUARDIANS APPOINTMENT
The alleged incompetent must be present at
the hearing, if able to attend. It must also be
shown that the required notice was given. The
court shall then hear parties evidences. If the
person in question is an incompetent, the court
shall appoint a suitable guardian of his
person/estate/both. [Rule 93, Sec. 5]
The guardians appointment is good until set
aside; and, despite and appeal therefrom, the
guardian can do what is necessary (under
courts direction) for the protection of the
ward/estate. [Zafra-Sarte v. CA (1970)]

SERVICE OF JUDGMENT
The final order or judgment shall be served
upon the civil registrar of the municipality/city
where the incompetent resides or where his
property is situated. [Rule 93, Sec. 8]

GUARDIANS BOND

Before an appointed guardian enters upon the
execution of his trust, or letters of guardianship
issue, he shall give a bond. [Rule 94, Sec. 1]
Conditions on the bond: [Rule 94, Sec. 1]
1) To make and return, within 3 months, the
estates inventory;
2) To faithfully execute the duties of his trust,
to manage and dispose of the estate
according to wards best interests, and to
provide for the wards proper
care/custody/education;
3) To account for the estate and all
proceeds/interest derived therefrom;
4) At the expiration of his trust, to settle his
accounts with the court and deliver the
remaining estate to the person lawfully
entitled thereto;
5) To perform all court orders.
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. [Rule 94, Sec. 3]

NEW BOND
Whenever necessary, the court may require a
new bond to be given by the guardian. After
notice to interested persons, the sureties on
the old bond may then be discharged from
further liability when no injury will result to
interested parties. [Rule 94, Sec. 2]

GUARDIANS GENERAL POWERS AND
DUTIES

1) To pay the ward's just debts out of:
a) the personal estate and the real estates
income;
b) if insufficient, the real estate (upon
obtaining court order). [Rule 96, Sec. 2]
2) To settle all the wards accounts;
demand/sue/receive for all debts due the ward,
or for the same and give discharges to the
debtor, on receiving a fair and just dividend of
the estate and effects; and appear for the ward
in all actions/proceedings, unless another
person is appointed for that purpose. [Rule 96,
Sec. 3]
3) To manage the wards estate frugally and
without waste; apply the income/profits to the
comfortable and suitable maintenance of the
ward and his family; and if the income/profits
are insufficient, sell/encumber the real estate
(upon court authorization). [Rule 96, Sec. 4]
If the guardian delegates his duties to
another, he shall be responsible for the

others actions in the premises and for any
resulting loss. [Zubeldia v. Hermanos]
Exception: If he shows that he used
reasonable care and discretion in the
manner of selecting those whom he
employs.
4) To render an inventory of the wards estate
within 3 months after his appointment; and an
inventory and account annually after the
appointment. [Rule 96, Sec. 7]
The inventory and account may be
compelled upon the application of an
interested person.
The inventories and accounts shall be
sworn to by the guardian.
All the estate described in the first
inventory shall be appraised. The court
may request the assistance of inheritance
tax appraisers.
If any property of the ward not included in
an inventory already rendered is
discovered/acquired by the ward, like
proceedings shall be had for inventory and
appraisement within 3 months.
5) The court may authorize the guardian to join in
an assent to an estate partition held by the
ward jointly or in common with others. The
authority shall only be granted after hearing,
notice to the wards relatives, and a careful
investigation as to the proposed actions
necessity/propriety. [Rule 96, Sec. 5]
6) Upon complaint of the guardian/ward or any
person interested in the wards estate, that
anyone is suspected of having
embezzled/concealed/conveyed away any of
the ward/estates property, the court may cite
the suspected person to appear for examination
and may order to secure the estate. [Rule 96,
Sec. 6]
Purpose: To secure evidence from persons
suspected of embezzling, concealing or
conveying away any property of the ward
so as to enable the guardian to institute the
appropriate action to obtain possession of
and secure title to the property. [Cui v.
Piccio]
7) Upon the expiration of a year from his
appointment, and as often thereafter as
required, the guardian must present his
account to the court for settlement and
allowance. [Rule 96, Sec. 8]
A non-parent guardian is allowed the
amount of his reasonable expenses
incurred in the execution of his trust, plus
just compensation for his services, not
exceeding 15% of the wards net income.
Extra allowance may be made in each
case as the importance and difficulty of
the management of the estate may
require. [Ramos v. PNB (1957)]
A guardian may be imprisoned for failure to
render his account and ordered to deliver
the estate to his successor. [Doronila v.
Lopez]

SELLING/ENCUMBERING THE WARDS
PROPERTY

PETITION [Rule 95, Sec. 1]
Grounds for the petition:
1) If the estates income is insufficient to
maintain the ward and his family;
2) If it appears that it is for the wards benefit
that his real estate (or part thereof) be
sold/encumbered and the proceeds put out
at interest or invested.
The grounds enumerated in this section are
exclusive. No order will be issued for another
purpose not found in this rule. Sale of the
wards realty without court order is void. [Inton
v. Quintana]
The guardian may file a verified petition with
the court which appointed him. The petition
shall set forth the grounds, and pray for
authorization of the sale/encumbrance.

SHOW CAUSE ORDER [Rule 95, Sec. 2]
If it seems probable that the sale/encumbrance
is necessary/beneficial, the court shall direct
the wards next of kin and all interested
persons to appear and show cause why the
petition should not be granted.
Next of kin - Relatives whose relationships
are such as to entitle them to shares in the
estate as distributes. [Lopez v. Teodoro]

HEARING [Rule 95, Sec. 3]
At the time and place designated in the show
cause order, the court shall hear evidences and
grant/refuse the petitions prayer as the wards
best interests require.

ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4]
After full examination, if it appears that it is
necessary/beneficial to the ward to
sell/encumber the estate (or some portion of
it), the court shall order the sale/encumbrance.
Contents of the order:
1) That the proceeds be expended for the
maintenance of the ward and his family, or
put out at interest, or invested;
2) Specific causes why the sale/encumbrance
is necessary/beneficial;
3) May direct that estate be disposed of at
either public or private sale, subject to
conditions on time and manner of payment
and security.
The guardians original bond shall stand as
security for the proper appropriation of the
sales proceeds; but the judge may require an
additional bond as a condition for the granting
of the order of sale.
The order of sale cannot continue in force for
more than 1 year without a sale being had.
The court may authorize and require the
guardian to invest the sale/encumbrances
proceeds or the ward's money, for the best
interest of all concerned. The court may make
other orders for the
management/investment/disposition of the
estate and effects. [Rule 95, Sec. 5]
This seeks to protect the wards funds
against imprudent or unsafe investments
by the guardian. [Philippine Trust Co. v.
Ballesteros]
The guardian cannot acquire by purchase, even
at a public or judicial auction, the property of
his ward. [Art. 1491, CC]
If the authority to sell was obtained under
suspicious circumstances indicative of fraud
and collusion, the guardians sale may
subsequently be annulled by the court.
[Mendoza v. Labrador] However, the
cancellation of the guardians authority to sell
will not affect the buyers rights. [Margate v.
Rabacal]

Appeal is the proper remedy against a court
order authorizing the sale of the wards
property. [Lopez v. Teodoro (1950)]

GUARDIANSHIPS TERMINATION

GROUNDS FOR TERMINATION
1) If the incompetent is no longer incompetent.
[Rule 97, Sec. 1]
The person who was declared incompetent,
or his guardian/relative/friend, may petition
the court to have his present competency
judicially determined.
The petition shall be verified by oath, and
shall state that the subject person is then
competent.
Upon receipt of the petition, the court shall
fix the time for hearing, and cause notice to
be given to the guardian and the ward.
On the trial, the guardian, the relatives and
(courts discretion) any person may contest
the right to the relief demanded. Witnesses
may be called and examined by the parties
or by the court. If it is found that the
person is no longer incompetent, his
competency shall be adjudged and
guardianship shall cease.
2) If the incompetent dies.
3) If the guardian: [Rule 97, Sec. 2]
a) becomes insane or incapable/unsuitable of
discharging his trust;
b) wasted/mismanaged the estate;
c) failed for 30 days after it is due to render
an account or make a return;
d) resigns.
Upon notice to the guardian, the court may
remove him and compel him to surrender
the wards estate to the person lawfully
entitled to it.
An order removing a guardian is an order
constituting a final determination of his
rights. Hence, the guardian may appeal.
[Olarte v. Enriquez (1960)]
A guardian may resign if it appears proper
to allow him.
Upon the guardians resignation/removal,
the court may appoint another in his place.
4) If it appears that the guardianship is no longer
necessary, the court may discharge the
guardian. [Rule 97, Sec. 3]

The court which appointed the guardian is also
the court competent to decide the petition for
restoration of to capacity. This is because the
latter is merely a continuation of the original
guardianship proceeding. [Crisostomo v.
Endencia]
Final orders or judgments on the guardianships
termination shall be served upon the civil
registrar of the municipality/city where the
incompetent resides or where his property is
situated. [Rule 97, Sec. 5]

GUARDIANSHIP OF NON-RESIDENT
INCOMPETENTS

The guardian of a nonresident estate has
management of all the wards estate within the
Philippines. [Rule 96, Sec. 1]
Only the court which appointed the non-
residents guardian has jurisdiction over the
guardianship. [Rule 96, Sec. 1]
ANCILLARY GUARDIANSHIP -
Guardianship in a state other than that in
which guardianship is originally granted
and which is subservient and subsidiary to
the later. [Johannes v. Harvey]
After filing of petition, notice and hearing, if the
court is satisfied that the nonresident is an
incompetent rendering a guardian
necessary/convenient, it may appoint a
guardian for the non-residents estate. [Rule
93, Sec. 6]

IV. TRUSTEES

PROCEDURE FOR APPOINTMENT OF
TRUSTEES UNDER RULE 98

DEFINITION

The legal relationship between a person having
an equitable ownership in the property and
another person owning the legal title to the
property; the equitable ownership of the former
entitles him to performance of certain duties
and the exercise of certain powers by the
latter. [Saltiga v. CA (1999)]
DECLARATION OF TRUST Act by which a
person acknowledges that the property, title to
which he holds, is held by him for the use of
another. [De Leon v. Molo-Peckson (1962)]

PARTIES TO A TRUST [Regalado]
1) Trustor
2) Trustee
3) Beneficiary (cestui que trust)

KINDS OF TRUST [Saltiga v. CA (1999)]
1) EXPRESS Created by parties direct and
positive acts; by some writing/words
evidencing an intention to create a trust.
2) IMPLIED Deducible from the nature of the
transaction as matters of intent; or
superinduced on the transaction by operation
of law as a matter of equity, independently of
the parties particular intention.
a) RESULTING TRUSTS Based on equity
that valuable consideration (and not title)
determines the equitable title/interest, and
are presumed always to have been
contemplated by parties.
b) CONSTRUCTIVE TRUSTS Created by
the construction of equity in order to satisfy
the demands of justice and prevent unjust
enrichment. They arise contrary to
intention against one who fraudulently
obtains/holds the legal right to property
which he should not, in equity, hold.


Rule 98 applies only to express trusts under
CC. [Regalado]
Express trust on an immovable, or interests in
it, may not be proved by parole evidence. [Art.
1443, CC]
While an implied trust may be established
by parol evidence, an express trust cannot.
Even then, an implied trust cannot be
established upon vague and inconclusive
proof. [Heirs of Lorenzo Yap v. CA (1999)]
No particular words are required to create an
express trust. It is sufficient that a trust is
clearly intended. [Art. 1444, CC]
The right creating/declaring a trust need
not be contemporaneous or inter-parties.
An express trust may even be declared by
a writing made after the legal estate has
vested in the trustee. The fact that an
express trust was created by a deed which
was absolute on its face may be shown by
a writing separate from the deed itself. [De
Leon v. Molo-Peckson (1962)]
A trust shall not fail because the trustee
appointed declines. [Art. 1445, CC]
Exception: The contrary appears in the
instrument constituting the trust.
Beneficiarys acceptance is necessary. But if the
trust does not impose any onerous condition on
the beneficiary, his acceptance is presumed;
Exception: If there is contrary proof. [Art.
1446, CC]
General rule: A voluntary trust is irrevocable
without the consent of the beneficiary. [De
Leon v. Molo-Peckson (1962)]
Exception: If the power to revoke was
reserved.

VENUE [Rule 98, Sec.1]

If a trustee is necessary to carry into effect a
will/instrument, the trustee shall be appointed
by the RTC where:
1) the will was allowed; or
2) the property was located.

TRUSTEES APPOINTMENT

If testator omitted appointment of trustee, the
court may appoint a trustee. That trustee shall
have the same rights, powers and duties as if
he was appointed by the testator. [Rule 98,
Sec. 2]
The power to appoint a trustee is discretionary
with the court, and the appellate court will
decline to interfere except in cases of clear
abuse. Thereafter, it is likewise the discretion
of the court to remove the trustee. [Tiangco v.
Francisco]

SUCCESSOR TRUSTEES
If the trustee declines/resigns/dies or is
removed before the trusts objects are
accomplished, and there is no adequate
provision in the instrument creating the trust,
the court may appoint a new trustee to act
alone or jointly with others. That trustee shall
have the same rights, powers and duties as if
he was originally appointed. The court may
order former/remaining trustees to convey the
estate to him. [Rule 98, Sec. 3]
A person succeeding to a trust (as the former
trustees executor/administrator) is not
required to accept the trust. [Rule 98, Sec. 2]
Allowance of the instrument creating the trust
Petition by the executor/administrator or the
person appointed as trustee in the instrument

Notice to all interested parties
Appointment of trustee by the court
Filing of bond by the trustee


TRUSTEES APPOINTED ABROAD
TERRITORIALITY OF TRUSTEES
AUTHORITY The powers of a trustee
appointed by a Philippine court cannot extend
beyond the confines of the Philippine territory.
Proceedings if the trustee is appointed abroad:

If trustee fails to comply with the court order,
the court will declare the trust vacant and
appoint a new trustee. The trust shall vest in
the new trustee as if he was originally
appointed.

TRUSTEES BOND [Rule 98, Sec.5]

Before entering his duties, a trustee must file a
bond with the COC in an amount fixed by the
court, payable to the Philippine government
and sufficient and available to protect any party
in interest.
Failure to file bond is considered as
decline/resignation of the trust.
Court may exempt from giving bond:
1) A trustee under a will, if the testator so
directed/requested; or
2) Any trustee, if all persons beneficially
interested are of full age and request the
exemption.
The court may cancel the bond exemption
anytime; the trustee shall then file the bond.

TRUSTEES DUTIES

Conditions upon the bond, WON written: [Rule
98, Sec. 6]
1) To make and return the estates inventory;
Exception: If inventory was already
filed, succeeding trustees need not file.
Court may order inheritance tax
appraisers to assist in the appraisal of
the estate. [Rule 98, Sec. 7]
2) To manage the estate and faithfully
discharge his trust;
3) To render an accounting under oath, once a
year until the trust is fulfilled;
Exception: If excused by the court in
any year.
4) To settle his accounts in court and deliver
the remaining estate to those entitle, at the
trusts expiration.
It is the trustees duty to deliver the
properties to the beneficiary free from
all liens and encumbrances. [De Leon
v. Molo-Peckson (1962)]

TRUSTEES COMPENSATION

If the trustees compensation is not determined
in the instrument creating the trust, it shall be
fixed by the court. [Rule 98, Sec. 7]

TRUSTEES REMOVAL/RESIGNATION [Rule
98, Sec. 8]

Grounds for removal of a trustee:
1) If essential to the interests of the party
petitioning the removal;
Requires petition of a beneficially
interested person, notice to trustee and
hearing.
2) If trustee becomes insane or otherwise
incapable/unsuitable of discharging the
trust;
Requires notice to all interested parties.
3) If trustee assumes to be possessing in his
own right and thus renounces the trust.
[Martinez v. Grano]
General Rule: A trustee cannot
acquire the trust estate by prescription
because for the purpose of prescription,
the possession of the property by the
trustee is not an adverse possession,
but only a possession in behalf of the
owner of the same. [Palma v. Cristobal]
Exception: If there is an open,
clear and unequivocal repudiation
of the trust, and the beneficiary
knows of the repudiation. [Salinas
v. Tuazon]
A trustee may resign if it is proper for the court
to allow him, whether the trustee was ppointed
by the court or by a will.

TRUSTEE VS.
EXECUTOR/ADMINISTRATOR

Trustee Executor/
Administrator
Holds an office of trust Holds an office of trust
Duties may cover a wider
range, and are usually
governed by the intention
of the trustor or the
parties (if established by
contract)
Duties are fixed and/or
limited by law
[Araneta v. Perez (1962)]

ESTATES SALE/ENCUMBRANCE [Rule 98,
Sec. 9]

If estates sale/encumbrance is
necessary/expedient, court may order such
sale/encumbrance and
reinvestment/application of the proceeds.
Proceedings shall conform as much as possible
with the provisions on a guardians
sale/encumbrance of a wards properties.

Philippine land is held in trust for Philippine
residents, by a trustee who derives authority from
outside the Philippines
Petition filed in the RTC of the province where the
land is situated
Notice to all interested parties
Trustee is ordered by the court to apply for
appointment

V. ADOPTION

DEFINITION [Sec. 3, Rule on Adoption]

1) CHILD Person below 18 years of age at the
time of the filing of the petition for adoption.
2) CHILD LEGALLY AVAILABLE FOR
ADOPTION Child who was in/voluntarily
committed to DSWD or to a duly licensed and
accredited child-placing/child-caring agency,
freed of the parental authority of his biological
parents, or in case of rescission of adoption, his
guardian/adopter.
3) VOLUNTARILY COMMITTED CHILD One
whose parents knowingly and willingly
relinquish parental authority over him in favor
of DSWD.
4) INVOLUNTARILY COMMITTED CHILD One
whose parents have been permanently and
judicially deprived of parental authority over
him due to abandonment;
substantial/continuous/repeated neglect and
abuse; or incompetence to discharge parental
responsibilities.
5) FOUNDLING A deserted/abandoned
infant/child whose parents/guardian/relatives
are unknown; or a child committed to an
orphanage/institution with unknown facts of
birth and parentage and registered in the Civil
Register as a foundling.
6) ABANDONED CHILD One who has no
proper parental care or guardianship or whose
parents deserted him for at least 6 continuous
months and was judicially declared as such.
7) DEPENDENT CHILD One who is without a
parent/guardian/custodian, or whose
parents/guardian/custodian for good cause
desires to be relieved of his care and custody
and is dependent upon the public for support.
8) NEGLECTED CHILD One whose basic needs
have been deliberately unattended or
inadequately attended to by his
parents/guardian.
9) CHILD STUDY REPORT Study made by the
court social worker of the childs legal status,
placement history, psychological, social,
spiritual, medical, ethno-cultural background
and that of his biological family needed in
determining the most appropriate placement
for him.
10) HOME STUDY REPORT Study made by the
court social worker of the motivation and
capacity of the prospective adoptive parents to
provide a home that meets the needs of a
child.
11) SUPERVISED TRIAL CUSTODY Period
during which a social worker oversees the
adjustment and emotional readiness of both
adopters and adoptee in stabilizing their filial
relationship.
12) SIMULATION OF BIRTH Tampering of the
civil registry to make it appear in the birth
records that a certain child was born to a
person who is not his biological mother, thus
causing such child to lose his true identity and
status.
13) RESIDENCE A persons actual stay in the
Philippines for 3 continuous years immediately
prior to the filing of a petition for adoption and
which is maintained until the adoption decree is
entered. Temporary absences for professional,
business, health, or emergency reasons not
exceeding 60 days in 1 year does not break the
continuity requirement.
14) ALIEN Any person, not a Filipino citizen, who
enters and remains in the Philippines and is in
possession of a valid passport or travel
documents and visa.

NATURE OF PROCEEDING

Adoption is a juridical act which created
between two persons a relation similar to that
which results from legitimate filiation. [Prasnick
v. Republic]
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 (2003)]

IN REM PROCEEDING
Adoption is not an adversarial proceeding since
it has no particular defendant. [Republic v.
Elepano (1991)]
No court may entertain it unless it has
jurisdiction over the parties and the res the
personal status of the parties.
Constructive notice is enough where the
residence of the parents unknown. When the
parent has abandoned the child to be adopted,
notice to the former is not required. [Santos v.
Arazanso, (1966)]

A. DOMESTIC ADOPTION

PROCEDURE FOR DOMESTIC ADOPTION
UNDER AM-02-6-02-SC


The Rule on Adoption [AM-02-6-02-SC (July
31, 2002)] expressly repealed Rules 99 and
100. [Sec. 25, Rule on Adoption]
RA 8552 (Domestic Adoption Act) governs the
domestic adoption of Filipino children. [Sec. 1,
Rule on Adoption]

OBJECTIVES [Sec. 2, Rule on Adoption]

Supervised trial custody
Order of hearing by the court
Petition for domestic adoption

Child and home study reports by the social worker
Hearing on the petition for adoption
Adoption decree issued by the court

1) The childs best interest is the paramount
consideration in the childs
care/custody/adoption.
2) The State shall provide alternative protection
and assistance to foundlings, neglected,
orphaned and abandoned children.

QUALIFIED ADOPTERS [Sec. 4, Rule on
Adoption]

1) Any Filipino citizen:
a) of legal age;
b) in possession of full civil capacity and legal
rights;
c) of good moral character;
d) has not been convicted of any crime
involving moral turpitude;
e) who is emotionally and psychologically
capable of caring for children;
f) at least 16 years older than the adoptee;
Exception: when the adopter is:
(1) the adoptees biological parent;
(2) the spouse of the adoptees parent.
g) who is in a position to support and care for
his children in keeping with the means of
the family.
2) Any alien:
a) possessing the same qualifications as
Filipinos;
b) whose country has diplomatic relations with
the Philippines;
c) who has been living in the Philippines for at
least 3 continuous years prior to the filing
of the petition for adoption and maintains
such residence until the adoption decree is
entered;
d) certified by his diplomatic/consular office to
have the legal capacity to adopt in his
country;
e) whose government allows the adoptee to
enter his country as his adopted child.

Residency and certification requirements on
alien may be waived for:
(1) a former Filipino citizen who seeks to
adopt a relative within the 4th degree
of consanguinity/affinity;
(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 a relative within the 4th degree
of consanguinity/affinity of the Filipino
spouse.
3) The guardian with respect to the ward, after
the termination of the guardianship and
clearance of his financial accountabilities.

JOINT ADOPTION BY SPOUSES
General rule: Husband and wife shall jointly
adopt.
Exception:
1) If one spouse seeks to adopt the
legitimate child of the other spouse;
2) If one spouse seeks to adopt his own
illegitimate child; provided the other
spouse consented;
3) If the spouses are legally separated.
If the spouses jointly adopt or one spouse
adopts the illegitimate child of the other, joint
parental authority shall be exercised by the
spouses.

QUALIFIED ADOPTEES [Sec. 5, Rule on
Adoption]

1) Any person below 18 years of age who was
voluntarily committed to DSWD or judicially
declared available for adoption;
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 he was
consistently considered and treated by the
adopters as their own child since minority;
5) A child whose adoption was rescinded;
6) A child whose biological/adoptive parents died.
But no proceedings shall be initiated within 6
months from the time of the parents death;
7) A child not disqualified by law or these rules.

VENUE [Sec. 6, Rule on Adoption]

Family Court of the province/city where the
prospective adoptive parents reside.

PETITION FOR ADOPTION

ALLEGATIONS COMMON TO ALL PETITIONS [Sec.
7, Rule on Adoption]
1) Adoptees first name, surname or names, age
and residence as shown by his birth record,
baptismal/foundling certificate and school
records;
2) That the adoptee is not disqualified by law;
3) Adoptees estates value and character;
4) First name, surname or names by which the
adoptee is to be known and registered in the
Civil Registry.

SPECIFIC ALLEGATIONS [Sec. 7-10, Rule on
Adoption]

specific allegations
If Filipino adopter a) Jurisdictional facts
b) Adopter's qualifications
c) That adopter has
undergone pre-adoption
services
If alien adopter a) Jurisdictional facts
b) Adopter's qualifications
If guardian-adopter Adopter's qualifications
If foundling-adoptee Entries which should appear
in the birth certificate
If petition also prays for
change of name
a) Child's registered name
b) Aliases or other names
by which the child has
been known
c) The full name by which
the child is to be known

If petition for rectification
of simulated birth
a) That it is an application
for rectification of a
simulated birth
b) That the simulation was
made prior to the
effectivity date of RA
8552, and that the
application for
rectificaion and the
petition for adoption
were filed within 5 years
from that date
c) That the petitioner made
the simulation for the
adoptee's best interests
d) That the adoptee was
consistently considered
and treated by petitioner
as his own child
If petition for adoption of
foundling, abandoned,
dependent or neglected
children
a) Facts showing that the
child is a foundling,
abandoned, dependent
or neglected
b) Parents' names and
residence, if known, and
their residence. If
unknown, then those of
the guardian
c) Name of the duly
licensed child-placement
agency or individual who
has care and custody of
the child
d) That the DSWD/agency
is authorized to give its
consent

PETITIONS ANNEXES [Sec. 11, Rule on Adoption]
1) Birth/baptismal/foundling certificate and school
records, showing adoptees name, age and
residence;
2) Affidavit of consent of:
a) The adoptee, if 10 years of age or over;
b) The childs biological parents or legal
guardian, child-placement/child-caring
agency or proper government agency;
c) The adopters and the adoptees legitimate
and adopted children who are 10 years of
age or over;
d) The adopters illegitimate children living
with him who are 10 years of age or over;
e) The adopters and the adoptees spouses.
3) Child study report on the adoptee and his
biological parents;
4) If petitioner is an alien, certification by his
diplomatic/consular office 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 Sec.4(2);
5) 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
6) Decree of annulment, nullity or legal separation
of the adopter and of the adoptees biological
parents, if any.

ORDER OF HEARING [Sec. 12, Rule on
Adoption]

If the petition and attachments are sufficient in
form and substance, the court shall issue an
order.
Orders contents:
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)
Copy of the order shall be published at
least once a week for 3 successive
weeks before the hearing, in a
newspaper of general circulation in the
province/city where the court is
situated.
If the application is for change of name,
the hearing shall not be within 4
months after the last publication of the
notice nor within 30 days prior to an
election.
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.
Court has discretion to furnish copies of the
order to OSG, DSWD and the adoptees
biological parents.
If a change in the adoptees name is prayed
for, notice to OSG is mandatory.

CHILD AND HOME STUDY REPORTS [Sec.
13, Rule on Adoption]

The social worker shall verify with the Civil
Registry the adoptees real identity and
registered name. If the adoptees birth was not
registered, the social worker shall register the
adoptee and secure a certificate of foundling or
late registration.
The social worker shall establish that:
1) the child is legally available for adoption;
2) the documents in support thereof are valid
and authentic;
3) that the adopter has sincere intentions;
4) that the adoption shall inure to the childs
best interests.
If the adopter is an alien, the home study
report must show:
1) his legal capacity to adopt;
2) that his government allows the adoptee to
enter his country as his adopted child in the
absence of the certification required under
Sec. 7(b), RA 8552.
If the social worker finds that there are
grounds to deny the petition, he shall make the
proper recommendation to the court, with copy
furnished the petitioner.

HEARING [Sec. 14, Rule on Adoption]

Upon satisfactory proof of publication and
jurisdiction, the court shall hear the petition.

The petitioner and the adoptee must personally
appear. The petitioner must testify.
The court shall verify from the social worker to:
1) determine WON the biological parent was
properly counseled against making hasty
decisions caused by strain/anxiety to give
up the child;
2) ensure that all measures to strengthen the
family have been exhausted;
3) ascertain if any prolonged stay of the child
in his own home will be inimical to his
welfare and interest.

SUPERVISED TRIAL CUSTODY [Sec. 15, Rule
on Adoption]

Before issuance of the adoption decree, the
court shall give the adopter trial custody of the
adoptee for at least 6 months. Within this
period, the parties are expected to adjust
psychologically and emotionally to each other
and establish a bonding relationship.
The trial custody shall be monitored by the
social worker who submitted and prepared the
case studies.
During the period, temporary parental authority
shall be vested in the adopter.
Where the trial custody had not yet begun
or had already been completed at the time
of a quasi-delict committed by the child to
be adopted, the adopting parents cannot
assume any liability therefor. Accordingly,
his natural parents should be joined as
indispensable parties to the suit for
damages. [Tamargo v. CA (1992)]
The court may reduce the period or exempt the
parties if it finds that the same shall be for the
adoptees best interests.
General rule: An alien adopter must complete
the 6-month trial custody.
Exception:
1) A former Filipino citizen who seeks to
adopt a relative within the 4th 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
4th degree.
If the child 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.

ADOPTION DECREE [Sec. 16, Rule on
Adoption]

If the supervised trial custody is satisfactory to
the parties, the court is convinced from the trial
custody report and the evidence that the
adoption shall redound to the adoptees best
interests, an adoption decree shall be issued.
The adoption decree shall take effect as of the
date the original petition was filed, even if the
petitioners die before its issuance.

ADOPTION DECREES CONTENTS
1) Name by which the child is to be known and
registered;
2) Order for the COC to issue to the adopter a
certificate of finality upon expiration of the 15-
day reglementary period for appeal;
3) Order for the adopter to submit a certified true
copy of the adoption decree 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. In case of
change of name, the decree shall be submitted
to the Civil Registrar where the issuing court is
situated.
4) Order for the Civil Registrar of the place where
the adoptee was registered:
a) to annotate on the adoptees original birth
certificate the adoption decree, within 30
days from receipt of the certificate of
finality;
b) to issue a birth certificate which shall not
bear any notation that it is a new/amended
certificate;
c) to seal the original birth certificate in the
civil registry records, which can be opened
only upon order of the court which issued
the adoption decree;
d) to submit to the court issuing the adoption
decree proof of compliance within 30 days
from receipt of the decree;
e) If the adoptee is a foundling, to annotate
the adoption decree on the foundling
certificate.

CONFIDENTIALITY OF PROCEEDINGS AND
RECORDS [Sec. 18, Rule on Adoption]

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.
If the court finds that disclosure to a 3rd
person is necessary for security reasons or for
purposes connected with or arising out of the
adoption and will be for the adoptees best
interests, the court may order the necessary
information to be released, restricting the
purposes for which it may be used.

ADOPTIONS RESCISSION

Adoption may not be rescinded by the adopter;
but he may disinherit the adoptee under Art.
919, CC. [Sec. 19, Rule on Adoption]
Rationale: Adoption is for the childs best
interests.

GROUNDS FOR RESCISSION THAT ARE
COMMITTED BY THE ADOPTER [Sec. 19, Rule on
Adoption]
1) repeated physical and verbal maltreatment
despite having undergone counseling;
2) attempt on the adoptees life;
3) sexual assault/violence;
4) abandonment or failure to comply with parental
obligations.

Family Court of the city/province where the
adoptee resides.

WHO MAY FILE THE PETITION FOR RESCISSION
[Sec. 19, Rule on Adoption]

The adoptee who is over 18 years of age.
With the assistance of:
1) DSWD, if he is a minor;
2) His guardian/counsel, if he is over 18 years
of age but is incapacitated.

WHEN TO FILE THE PETITION FOR RESCISSION
[Sec. 21, Rule on Adoption]
Within 5 years:
1) After reaching the age of majority, if the
adoptee is incapacitated;
2) After recovery from incompetency, if the
adoptee is incompetent.

ORDER TO ANSWER [Sec. 22, Rule on Adoption]
The court shall order the adverse party to
answer the petition within 15 days from
receipt of a copy thereof.

JUDGMENT [Sec. 23, Rule on Adoption]
If the court finds that the petitions allegations
are true, it shall order the rescission of
adoption.
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/incapacitated.
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 [Sec. 24, Rule on
Adoption]
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.

B. INTER-COUNTRY
ADOPTION

SCOPE AND APPLICABILITY [Sec. 26, Rule
on Adoption]

RA 8043 (Inter-Country Adoption Act) governs
the adoption of Filipino children by:
1) Foreign nationals;
2) Filipino citizens permanently residing
abroad.

OBJECTIVES [Sec. 27, Rule on Adoption]

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.

QUALIFIED ADOPTEES QUALIFIED ADOPTEES QUALIFIED ADOPTEES QUALIFIED ADOPTEES [Sec. 29, Rule on
Adoption]

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


1) Family Court having jurisdiction over the place
where the child resides or may be found.
2) Directly with the Inter-Country Adoption Board.

PETITION FOR ADOPTION

PETITIONS CONTENTS [Sec. 30, Rule on Adoption]
1) Age of the petitioner and of the child to be
adopted, showing that petitioner is at least 27
years of age and at least 16 years older than
the child at the time of application;
Exception: If the petitioner is the childs
biological parent or the spouse of such
parent.
2) If petitioner is married, the name of the spouse
who must be joined as co-petitioner;
Exception: If the adoptee is the spouses
legitimate child.
3) Petitioners capacity to act and assume all
rights and responsibilities of parental authority
under his national laws, and that he has
undergone the appropriate counseling from an
accredited counselor in his country;
4) Non-conviction of crimes involving moral
turpitude;
5) Eligibility 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;
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;
9) That he possesses all the qualifications and
none of the disqualifications provided in this
Rule, in RA 8043 and other Philippine laws.

PETITIONS ANNEXES [Sec. 31, Rule on Adoption]
1) Petitioners birth certificate;
2) Marriage contract, divorce decree or judgment
dissolving the marriage;
3) Sworn statement of consent of petitioners
biological/adopted children above 10 years of
age;
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 petitioners current financial
capability;
6) Police clearance issued within 6 months before
the filing of the petition;

7) Character reference from the local
church/minister, the petitioners ER and a
member of the immediate community who
have known the petitioner for at least 5 years;
8) Full body postcard-size pictures of the
petitioner and his immediate family taken at
least 6 months before the filing of the petition.

COURTS DUTY

If the court finds that petition is sufficient in
form and substance and that there is a proper
case for inter-country adoption, it shall
transmit the petition to the Inter-Country
Adoption Board. [Sec. 32, Rule on Adoption]
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 (1967)]

VI. HOSPITALIZATION OF
INSANE PERSONS

PROCEDURE IN THE HOSPITALIZATION
OF INSANE PERSONS

INSANITY

Definition: Condition of the mind where it is
so impaired in function or so deranged as to
induce deviation from normal conduct in the
person so afflicted.

PETITION FOR COMMITMENT [Rule 101, Sec.
1 and 5]

Petition is filed in the RTC of the province
where the person alleged to be insane is found.
Who may file:
1) Person in custody or having charge of the
insane person.
2) If the above refuses, and commitment is
for the public welfare or the welfare of
insane person, the Health Secretary with
the assistance of the city/provincial fiscal.

COURT ACTION ON THE PETITION [Rule
101, Sec. 2-3]

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.
Petition for commitment filed in RTC
Court order fixing the date and place for hearing
and ordering the sheriff to produce the alleged
insane person in the hearing
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
Judgment granting/denying the petition

5) The court shall make proper provisions for the
custody of the wards property until a guardian
is properly appointed.

BURDEN TO PROVE INSANITY

To prove insanity, the burden is on the party
who alleges insanity.

WHEN THE PERSON IS CURED

The Health Secretary may file a petition for the
discharge of the insane person in the RTC
which ordered the commitment when he is of
the opinion that the person is
permanently/temporarily cured or may be
released without danger. [Rule 101, Sec. 4]
The Health Secretary cannot order release
without the approval of the RTC. [Chin Ah Foo
v. Concepcion]. On the other hand, the RTC
cannot order release without recommendation
from the Health Secretary.

VII. ABSENTEES

PROCEDURE FOR DECLARATION OF
ABSENCE UNDER RULE 107


Rule 107 is proper only where the absentee has
properties to be administered. [Regalado]
Rationale: The declaration of absence
made according to CC has the sole purpose
of enabling the taking of necessary
precautions for the administration of the
absentees estate. [Jones v. Hortiguela
(1937)]
Note: However, Art. 41-43, FC and Rule 131,
Sec. 3 (w)(4) provide that if the spouse was
absent for 4 or 2 years and the spouse present
has a well-founded belief that the absent
spouse is already dead, the spouse present
must institute a summary proceeding for the
declaration of presumptive death, for purposes
of contracting a subsequent marriage.
[Regalado]

APPOINTMENT OF A REPRESENTATIVE
[Rule 107, Sec. 1; Art. 381, CC]

If a person disappears from his domicile, his
whereabouts is unknown, and there is no agent
left to administer his property or the agents
power has expired, any interested party may
petition for the appointment of the absentees
representative.

PETITION FOR DECLARATION OF
ABSENCE AND APPOINTMENT OF
ADMINISTRATOR/TRUSTEE

WHEN TO PETITION [Rule 107, Sec. 2; Art. 384,
CC]
1) After 2 years:
a) from the disappearance and without any
news about the absentee; or
b) since the receipt of the last news about
him;
2) After 5 years, if he left an administrator of his
property.

WHO MAY PETITION [Rule 107, Sec. 2; Art. 385,
CC]
1) Spouse present;
Termination of administration/trusteeship

Hearing and appointment of administrator/trustee

Notice and publication of the notice of hearing

Court order fixing the hearing for petition

Petition for declaration of absence

2) Heirs instituted in a will;
3) Relatives who will succeed by intestacy;
4) Those who have some (over the absentees
property) subordinated to the condition of his
death.

1) Jurisdictional facts;
2) Names/ages/residences of:
a) Heirs instituted in the will;
b) Relatives who would succeed by intestacy;
3) Names/residences of creditors and others who
may have any adverse interest over the
absentees property;
4) Absentees properties.

NOTICE AND PUBLICATION [Rule 107, Sec.
4]

When a petition is filed, the court shall fix the
hearings date and place.
Copies of the notice of hearing shall be served
upon the known interested persons, at least 10
days before the hearing.
Publish the notice of hearing once a week for 3
consecutive weeks before the hearing, in a
newspaper of general circulation in the
province/city where the absentee resided.

HEARING

Anyone appearing to contest the petition shall
state his grounds in writing, and serve a copy
on the other interested parties on or before the
hearing. [Rule 107, Sec. 5]
Upon proof of notice, publication and the
petitions allegations, the court shall grant the
petition and appointing the absentees
representative/trustee/administrator. [Rule
107, Sec. 6]
The court shall safeguard the absentees rights
and interests and shall specify the
representative/trustee/administrators powers,
obligations and remuneration, regulating them
by the rules on guardians. [Rule 107, Sec. 6;
Art. 382, CC]
Declaration of absence takes effect 6 months
after its publication in a newspaper of general
circulation and in the OG. [Rule 107, Sec. 6;
Art. 386, CC]

WHO MAY BE APPOINTED
REPRESENTATIVE/ADMINISTRATOR/TRUSTEE [Rule
107, Sec. 7; Art. 383, CC]
1) The spouse present is preferred;
Exception: If there is legal separation.
2) If the absentee has no spouse, or the spouse is
a minor/incompetent, any competent person

TERMINATION

GROUNDS FOR TERMINATION [Rule 107, Sec. 8]
1) If the absentee appears personally or by agent;
2) If absentees death is proved and heirs appear;
3) If a 3rd person appears, showing by a proper
document that he has acquired the absentee's
property by title.

Administrator/trustee shall cease in the
performance of his office, and the property
shall be placed at the disposal of those who
may have a right to it.

VIII. WRITS

A. HABEAS CORPUS

PROCEDURE FOR ISSUANCE OF THE WRIT
OF HABEAS CORPUS UNDER RULE 102

DEFINITION

HC WRIT Writ directed to the person
detaining another and commanding him to
produce the body of the detained at a certain
time and place, with the day and the cause of
his caption and detention, to do, to submit to
and receive whatever the court shall consider in
that behalf. [Bouviers Law Dictionary]
The HC writ is a speedy and effectual remedy
to relieve persons from unlawful restraint, and
is the best and only sufficient defense of
personal freedom. It secures to a prisoner to
have the cause of his detention examined and
determined by a court of justice, and to have
the issue ascertained as to WON he is held
under lawful authority. [Feria v. CA (2000)]

KINDS OF HC WRIT [Lee Yick Hon v. Insular
Collector of Customs]
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 HC writ should
not issue.
2) PEREMPTORY WRIT If the cause of the
detention appears to be patently illegal. Non-
compliance with this is punishable.


HC writ extends to:
1) All cases of illegal confinement/detention
by which any party is deprived of his
liberty. [Cruz v. CA (2000)]
2) If the rightful custody of a person is
withheld from the one entitled to it.
[Ilusorio v. Bildner (2000)]
Issuance of the writ by a court with jurisdiction
Petition alleging illegal confinement/detention
Service by leaving the original with the person to
whom the writ is directed and preserving a copy
Hearing by the court
Recommitment, bail or discharge of the detained
Execution of the writ by conveying the detained
person before the court, with return of service

General rule: HC writ shall not issue if
the restraint is voluntary. [Kelly v.
Director of Prisons]
Exception: HC is a proper remedy
to enable parents to regain custody
of a minor, even if the minor is in
the custody of a 3rd person of his
own free will. [Tijing v. CA]
Rationale: Custody cases
involving minors are prosecuted
to determine custody rights
over a child.
3) If, as a consequence of a judicial
proceeding: [Feria v. CA (2000)]
a) There is deprivation of a constitutional
right resulting in the persons restraint;
b) The court has no jurisdiction to impose
the sentence; or
c) An excessive penalty was imposed,
because the sentence is void as to the
excess.

ACTUAL AND EFFECTIVE RESTRAINT
The essential object of the HC writ is to inquire
into inbvoluntary restraint and to relieve the
detained person. Thus, the restraint of liberty
must be an illegal and involuntary deprivation
of freedom of action which must be actual and
effective, not merely nominal/moral. [Ilusorio
v. Bildner (2000)]
It is not physical restraint alone which is
inquired into by the HC writ. Any restraint
which will prejudice freedom of action is
sufficient ground. [Moncupa v. Enrile (1986)]
Freedom may be lost due to external moral
compulsion, fear or erroneous belief in the
existence of the will. If the actual effect of
such psychological spell is to plow a person
at the mercy of another, the victim is
entitled to the courts protection as much
as an individual who is illegally deprived of
liberty by physical coercion. [Caunca v.
Salazar]
Jurisprudence extended the definition of
restraint to an accused who is out on bail and
to convicts on parole. [In re: Azucena Garcia
(2000)]

RELEASE OF THE DETAINED
The sole issue in HC proceedings is detention.
When the release of the detained person is
effected, the petition for the issuance of the HC
writ becomes moot and academic. [Olaguer v.
Military Commission (1987)]
The release that renders a petition for the HC
writ moot and academic is one that is free from
involuntary restraints. Hence, the writ may still
be applied for if: [Moncupa v. Enrile (1986)]
1) A person continues to be denied any of his
constitutional rights;
2) The restraints are not merely involuntary
but appear to be unnecessary;
3) An originally valid deprivation of liberty
became arbitrary, in light of subsequent
developments.

NOT A SUBSTITUTE FOR TRIALS ORDINARY
COURSE
The HC writ does not lie to correct errors of fact
or law. If a court has jurisdiction, its
judgment/order is not subject to collateral
attack by HC. The writ cannot perform the
function of a writ of error, even if the
judgment/order is erroneous, provided the
court had jurisdiction. [Harden v. Director
(1948)]
HC writ is not intended as a substitute for the
functions of a trial court. In the absence of
exceptional circumstances, the orderly course
of trial should be pursued and the usual
remedies exhausted before the writ may be
invoked. HC writ is not ordinarily available in
advance of trial to determine jurisdictional
errors that may arise. [Galvez v. CA (1994)]
HC writ may not be validly resorted to in lieu of
a lost/dismissed appeal. [In re: Azucena Garcia
(2000)]
It is necessary that the court judgment which
resulted in the illegal deprivation of liberty is no
longer appealable, in which case the writ is in
the nature of a collateral attack against a final
but void judgment. [Chavez v. CA (1968)]

HC PETITION

A signed and verified petition must allege:
[Rule 102, Sec. 3]
1) Fact of confinement/detention;
2) By whom;
If the restraining person is
unknown/uncertain, use an assumed
appellation. But the person served is
deemed the person intended.
3) Where; and
4) Cause or commitment order (if it can be
procured without impairing HC writs
efficiency), or lack thereof.

HC WRITS ISSUANCE

General rule: If it appears that the writ should
issue, the COC issues the writ under the courts
seal. [Rule 102, Sec. 5]
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 HC writ 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 (1919)]
Contents of the writ: [Rule 102, Sec. 6]

distraint by officer distraint NOT by officer
directed to him directed to an officer
orders him to produce the
person before the court
orders officer to: 1) take
and produce the person
before the court and 2)
summon the person
detaining to show the cause
of destraint

Grounds for denying the writ: [Rule 102, Sec.
4]
1) Custody under process/order by a court
with jurisdiction;
2) If jurisdiction appears after the writ is
allowed, the detained cannot be discharged
because of informality/defect in the
process/order;
3) Charge/conviction for an offense in the
Philippines;
4) Imprisonment under lawful order.

HC WRITS SERVICE

If the person to whom the writ is directed
cannot be found or does not have custody of
the detained person, serve the writ on any
person who has such custody. [Rule 102, Sec.
7]

HC WRITS EXECUTION

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. [Rule 102, Sec. 8]
Exception: If the person to be produced
has sickness/infirmity such that he cannot
be brought before the court without
danger.
The writ cannot be disobeyed for formal defect,
if it sufficiently appears therefrom:
1) Who has custody of the detained; and
2) The judge/court before whom the detained
must be produced. [Rule 102, Sec. 9]

HC WRITS RETURN
The return is signed by the person who made
it. It shall be sworn to if:
1) The detained is not produced; or
2) If it was not made and signed by a sworn
public officer in his official capacity. [Rule
102, Sec. 11]
Contents of the return: [Rule 102, Sec. 10]
1) WON he has custody of the detained;
2) Copy of the authority for the custody;
3) If the person is not produced in court, the
nature and gravity of sickness/infirmity;
4) If custody is transferred, the circumstances
of the transfer.
General rule: A person imprisoned for
any criminal matter cannot be removed
from one custody to another. [Rule
102, Sec. 18]
Exception:
1) By legal process;
2) To be delivered to an inferior
officer to carry to jail;
3) For trial;
4) In cases of necessity or public
calamity.

HEARING ON THE RETURN [Rule 102, Sec.
12]

When the writ is returned, the court must
immediately hear the case.
Hearing may be adjourned for good causes,
with the court making provisions for the
safekeeping of the detained person.
If the detained person is not produced, the
court must be satisfied of the gravity of the
alleged sickness/infirmity.
In the hearing, the court shall disregard
matters of form and technicalities of the
authority/order of commitment.

BURDEN OF PROOF

General rule: The burden of proving illegal
restraint rests on the petitioner who attacks the
restraint. If the return sets forth process which
prima facie shows good ground for the
prisoners detention, petitioner must allege and
prove new matter that tends to invalidate the
apparent effect of the process. [Feria v. CA
(2000)]
Exception: [Rule 102, Sec. 13]

if custody is under
warrant of commitment
pursuant to law
if custody is by any
alleged private
authority
return is considered prima
facie evidence of the cause
of restraint
return is only a plea of
the facts set forth
therein, and the party
claiming custody must
prove such facts

RECOMMITMENT, BAIL OR DISCHARGE

if unlawfully restrained if lawfully committed for
an offense
court shall order
discharge from
confinement; but
discharge is not effective
until copy of order is
served on detaining
person. If detaining
person does not desire to
appeal, detained person
shall be released.
[Rule 102, Sec. 15]
1) if offense is punishable
by death - detained
person cannot be
released/discharged.
2) if offense is NOT
punishable by death -
either:
a) recommit to prison;
b) admit to bail.

[Rule 102, Sec. 14]

If detained person is admitted to bail, he shall
file a bond conditioned on appearance in court;
otherwise, he will be recommitted. [Rule 102,
Sec. 14]
Person set at liberty by the writ shall not be
imprisoned for the same offense. [Rule 102,
Sec. 17]
Exception: If there is lawful order/process
of a court having jurisdiction.

PENALTY FOR REFUSING/DISOBEYING
THE HC WRIT [Rule 102, Sec. 16]

PUNISHABLE ACTS/OMMISSIONS
1) If COC refuses to issue the writ after allowance
by the court and demand.
2) If person directed in the writ:
a) Neglects/refuse 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.
3) Imprisoning a person set at liberty by the writ,
for the same offense. [Rule 102, Sec. 17]
4) Removing a prisoner from one custody to
another. [Rule 102, Sec. 18]

PENALTIES
1) Forfeiture of P1,000 to the aggrieved party.
2) Punished for contempt.

HC WRIT AND CERTIORARI

The writs of HC and certiorari may be ancillary
to each other where necessary to give effect to
the supervisory powers of the higher courts.
[Regalado]
Rationale: An HC writ reaches the body
and the jurisdictional matters, but not the
record. A certiorari writ reaches the record,
but not the body. Hence, the two may be
used together for review purposes.


B. WRIT OF AMPARO

AMPARO Literally, to protect.
The instrument originated in Mexico and has
been constitutionally adopted by Latin
American countries (except Cuba) to protect
against human rights abuses, especially during
the time when they were governed by military
juntas. The writ was adopted to provide for a
remedy to protect the whole range of
constitutional rights, including socio-economic
rights.
In light of the recent prevalence of extralegal
killings and enforced disappearances (ELKED),
SC exercised its enhanced power to promulgate
rules to protect and enforce constitutional
rights. [Art. 8, Sec. 5[5], Consti]
EXTRALEGAL KILLINGS Killings
committed without due process of law (i.e.
without legal safeguards or judicial
proceedings).
ENFORCED DISAPPEARANCES
Attended by the following circumstances:
1) Arrest/detention/abduction of a person
by a government official or organized
groups or private individuals acting
with the in/direct acquiescence of the
State;
2) Refusal of the State to disclose the
fate/whereabouts of the person
concerned, or refusal to acknowledge
the deprivation of liberty, which places
such persons outside the protection of
the law. [Declaration on the Protection
of All Persons from Enforced
Disappearances]
The Philippine Constitution does not explicitly
provide for the writ. However, several amparo
protections are available under the 1987
Constitution.
The Grave Abuse Clause in Art. 8, Sec. 1,
Consti accords the same protection to human
rights given by amparo.

Constitutional basis
Amparo contra leyes Art. 5, Sec.5(2)(a), Consti:
SC has review powers over
all cases in which the
constitutionality/validity of
any treaty,
international/executive
agreement, law,
presidential issuances, or
regulation is in question
Amparo casacion Art. 5, Sec.5(2), Consti:
SC has explicit review
powers over judicial
decisions
Amparo administrative Recognized in form by the
1987 Consti
Amparo libertad Comparable to HC remedy
under the ROC (which
adopted the Old English
rule on protection of
individual liberty) and
Consti provisions (Art. 3,
Sec. 13 and 15; Art. 7,
Sec. 18; Art. 8, Sec. 5,
par. 1)

C. WRIT OF HABEAS DATA

HD WRIT An independent remedy to protect
the right to privacy, especially the right to
informational privacy.
Rationale:
The privacy of ones person/family/home is
a sanctified right in the history of
constitutional law. A persons home is his
kingdom, which even the king has to
respect.
The right to privacy is accorded a
recognition independent of its identification
with liberty. In itself, it is fully deserving of
constitutional protection. A system of
limited government safeguards a private
sector, which belongs to the individual;
firmly distinguishing it from the public
sector, which the government can control.
Protection of this private sector (i.e. of the
individuals dignity and integrity) has
become increasingly important as modern
society developed. All the forces of
technological age operate to narrow the
area of privacy and facilitate intrusion into
it. In modern terms, the capacity to
maintain and support this enclave of
private life marks the difference between a
democratic and a totalitarian society.
[Morfe v. Mutuc (1968)
The HD writ is also a remedy to protect the
right to life/liberty/security of a person
from violation (or threat thereof) by an
unlawful act/omission of a public official/EE
or of a private individual/entity.]

WRIT OF AMPARO VIS--VIS WRIT OF HABEAS DATA


Xxx writ of amparo writ of HD
Nature of remedy If right to life/liberty/security is violated (or
threatened to be so) by a public official/EE
or a private individual/entity
If right to privacy is so violated (or
threatened to be so) in
gathering/collecting/storing data or
information about aggrieved party's
person/family/home/correspondence
Who may file 1) Aggrieved party; 1) SAME
Xxx 2) In order: 2) If ELKED cases (in order):
Xxx a) Immediate family members a) SAME
Xxx b) Ascendant/descendant or collateral
relative within 4th civil degree
b) SAME
Xxx c) Concerned citizen/organization Xxx
Xxx * Aggrieved party's filing suspends the right
to file of others
Xxx
Xxx * Filing by an authorized party suspends the
right of all others down the order
Xxx
Docket fees Exempt If indigent petitioner, exempt
Docket petition and act immediately SAME, but without prejudice to submission of
proof of indigency within 15 days from filing
Contents of petition Signed, verified and allege: Xxx
Xxx 1) Petitioner's circumstances 1) SAME
Xxx 2) Respondent's circumstances 2) SAME
Xxx 3) Right violated or threatened to be
violated, and how violated/threatened
3) File/database location and person/entity in
possession/control
Xxx 4) Investigations conducted
Xxx 5) Petitioner's actions/recourses to
determine aggrieved party's
identity/whereabouts and violator's identity
4) Petitioner's actions/recourses to secure the
data/information
Xxx 6) Relief prayed for 5) SAME, including the
update/rectification/suppression/destruction
of the file/database or enjoinment of the
threat
Xxx * Include general prayer for other just and
equitable reliefs
* SAME
Issuance of writ Upon filing and petition's prima facie
validity:
SAME
Xxx Court shall immediately issue the writ SAME
Xxx Clerk of court shall issue the writ under the
court's seal
SAME, and he shall serve it within 3 days
from issuance
Xxx * If urgent, the judge/justice may issue the
writ in his own handwriting and deputize
anyone to serve it
* SAME
Xxx * The writ shall set the date and time for
summary hearing, which should be within 7
days from issuance
* SAME, but within 10 days from issuance
Penalty for refusing
to issue writ
Contempt, without prejudice to other
disciplinary actions
SAME
Service of writ Serve a copy on respondent and retain a
copy on which to make a return of service
SAME
* If respondent cannot be served personally,
apply substituted service rules
* SAME
Return on the writ Respondent must file a verified written
return within 72 hours after service
SAME, but within 5 working days (the court
may extend the period for justifiable reasons)
Xxx Contents of return:
Xxx 1) Lawful defenses 1) SAME
Xxx 2) Steps/actions taken to determine the
whereabouts of the aggrieved party and the
violator
2) If respondent has possession/control of the
data/information:
Xxx 3) All relevant information a) Disclosure of the data/information, its
nature, and the purpose of its collection
Xxx 4) If respondent is a public official/EE,
actions that were taken or will be taken:
b) Steps/actions taken to secure the
data/information's confidentiality
Xxx a) To verify the aggrieved party's identity c) Data/information's currency and accuracy
Xxx b) To recover and preserve evidence for
prosecution
3) Other relevant allegations
Xxx c) To determine death's/disappearance's
circumstances
xxx

Xxx d) To identify and apprehend persons
involved
xxx
Xxx e) To bring suspected offenders to court xxx
Xxx * General denial of petition's allegations is
not allowed
* SAME
Defenses raised All defenses not raised in the return are
deemed waived
Hearing may be in chambers if respondent
invokes the following defenses:
Xxx Xxx 1) Release of the data/information will
compromise national security or State secrets
Xxx Xxx 2) Data/information cannot be divulged to
public because of its nature or privileged
character
Prohibited
pleadings/motions
1) MTD SAME
Xxx 2) Motion for extension to file pleading xxx
Xxx 3) Dilatory motion for postponement xxx
Xxx 4) Motion for bill of particulars xxx
Xxx 5) Counter/cross complaint xxx
Xxx 6) 3rd party complaint xxx
Xxx 7) Reply xxx
Xxx 8) Motion to declare respondent in default xxx
Xxx 9) Intervention xxx
Xxx 10) Memorandum xxx
Xxx 11) MFR of interlocutory orders or interim
relief orders
xxx
Xxx 12) Petition for
certiorari/mandamus/prohibition against
interlocutory orders
xxx
Effect of failure to
file return
Ex parte hearing SAME
Xxx Xxx May grant petitioner relief as petition
warrants, although it is the court's discretion
to require petitioner to submit evidence
Summary hearing Allowed, but the court may call for a
preliminary conference to simplify issues and
determine possibility of obtaining
stipulations and admissions
SAME
Xxx Hearing will be day to day until completed,
and has the same priority as HC petitions
xxx
Interim reliefs Upon filing and anytime before judgment,
the court may grant any of the following:
xxx
Xxx 1) Temporary protection order xxx
Xxx 2) Inspection order = To permit entry for
inspecting relevant objects/operations
xxx
Xxx 3) Production order = To produce and permit
inspection of evidence
xxx
Xxx 4) Witness protection order xxx
Availability of
interim reliefs to
respondent
Only #2 and #3 xxx
Contempt For disobeying lawful court orders/processes SAME
Burden of proof Substantial evidence xxx
Required standard
of diligence
If respondent is: xxx
Xxx 1) Private individual/entity: Ordinary xxx
Xxx 2) Public official/EE: Extraordinary; and
cannot invoke presumption of regularity in
performance of official duty to evade liability
xxx
Judgment Must be rendered within 10 days from
petition's submission for decision
SAME
Xxx * If petition's allegations are proven by
substantial evidence, grant writ and reliefs;
otherwise, deny
* SAME
Xxx Xxx * Upon judgment's finality, enforce within 5
days
Return of service Xxx Executing officer must make return within 3
days from enforcement

Xxx Xxx * Notice and hearing on the executing
officer's return
Appeal Appeal to SC under Rule 45, on questions of
law, and within 5 days from notice of
adverse judgment
SAME
Xxx * Appeal has same priority as HC cases * Appeal has same priority as HC and amparo
cases
Archiving and
revival of cases
If petition cannot proceed for a valid cause,
the court shall not dismiss it but shall
archive it
Xxx
Xxx * After 2 years from notice of archiving to
petitioner, petition shall be dismissed with
prejudice upon failure to prosecute
Xxx
Institution of
separate actions
(criminal/civil)
Not precluded SAME
Effect of filing a
criminal action
A separate petition for the amparo writ
cannot be filed, but the remedy may be
availed by motion in the criminal action
SAME
Consolidation with
another action
If a separate criminal (and civil) action is
filed subsequent to the filing of petition for
the writ, consolidate the petition into the
criminal action
Xxx
Substantive rights Cannot be increased/decreased/modified SAME
ROC application Suppletory SAME

IX. CHANGE OF NAME

A. CHANGE OF NAME
UNDER RULE 103

PROCEDURE IN CHANGE OF NAME PROCEDURE IN CHANGE OF NAME PROCEDURE IN CHANGE OF NAME PROCEDURE IN CHANGE OF NAME
UNDER RULE 103 UNDER RULE 103 UNDER RULE 103 UNDER RULE 103

NATURE

Change of Name (Rule
103)
Correction of clerical
or typographical error
(RA 9048)
Judicial Administrative: Local civil
registrar or consul
general (for nonresident
citizens)
Includes change in
surname
Clerical/typographical
errors and change in
first/nick name

A change of name is a proceeding in rem. As
such, strict compliance with all jurisdictional
requirements, particularly on publication, is
essential in order to vest the court with
jurisdiction. [Regalado]
An alien can petition for a change of name
but he must be domiciled in the Philippines.
[Ong Huan Tin v. Republic (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 (1966)]
Legal separation is not a ground for the
female spouse for a change of name under
Rule 103. [Laperal v. Republic (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
(1973)]
Sex reassignment is not a valid ground to
change ones first name (applies to both Rule
103 and RA 9048). [Silverio v. Republic
(2007)]

VENUE [Rule 103, Sec. 1]

In the RTC of the province where the
petitioner has been residing for years prior to
the filing of the petition.


A petition for change of name shall be signed
and verified by the person desiring his name
changed, or some other person on his behalf.
It shall contain: [Secan Kok v. Republic
(1973)]
1) 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 such filing;
2) The cause for which the change of the
petitioner's name is sought;
3) The name asked for;
4) All names by which petitioner is known.
All aliases of the applicant must be set forth
in the petitions title; otherwise, such defect
would be fatal even if said aliases are
contained in the body of the petition. [Go
Chiu Beng v. Republic (1972)]
Verification is a formal, not a jurisdictional
requirement. The lack of verification is not a
ground for dismissing the petition. [Oshito v.
Republic]
Petition should be filed by applicant upon
reaching the age of majority. [Regalado]

VALID GROUNDS FOR CHANGE OF NAME

1) When the name is ridiculous, dishonorable, or
extremely difficult to write/pronounce.
2) Consequence of a change in status (e.g.
legitimation).
3) To avoid confusion. [Alfon v. Republic
(1980)]
4) Having continuously used and been known
since childhood by a Filipino name, unaware
of his/her alien parentage. [Ang Chay et al.
v. Republic (1970)]
5) A sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good
faith and without prejudicing anybody. [Uy v.
Republic (1965)]

COURT ACTION [Rule 103, Sec. 3]

The court shall promulgate an order:
1) Reciting the purpose of the petition;
2) Fixing a date and place of hearing;
3) Directing that a copy of the order be
published before hearing at least once a
week for 3 successive weeks in a
newspaper of general circulation.
The date for hearing shall not be within 30
days prior to an election nor within 4 months
after the last publication of notice of hearing.

WHO MAY OPPOSE PETITION [Rule 103,
Sec. 4]

1) Any interested person;
2) The Solicitor General (OSG) or the proper
provincial/city fiscal shall appear on behalf of
the Republic of the Philippines. The OSG
Petition for change of name
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

must be notified by service of a copy of the
petition.

WHEN CHANGE OF NAME MAY BE
GRANTED [Rule 103, Sec. 5]

If there is satisfactory proof in open court on
the date fixed in the order that such order
has been published as directed and that the
allegations of the petition are true, the court
shall, if proper and reasonable cause appears
for changing the name of the petitioner,
adjudge that such name by changed in
accordance with the prayer of the petition.
Judgments/orders allowing the change of
name shall be furnished the civil registrar of
the municipality/city where the court issuing
the same is situated, who shall forthwith
enter the same in the Civil Register.

DISCREPANCY IN PETITION AND
PUBLISHED ORDER

A discrepancy in the name sought to be
adopted as stated in the petition and in the
published order constitutes a substantial
defect because it did not correctly identify the
parties to the proceedings. As such, there is
no strict compliance with the publication
requirement and renders the entire
proceedings null and void since the court has
not acquired jurisdiction. [Jacobo v.
Republic]

B. CHANGE OF NAME
UNDER RA 9048

PROCEDURE IN CHANGE OF NAME
UNDER RA 9048

APPLICATION OF RA 9048 TO CHANGES
OF NAME OR CORRECTIONS OF ENTRIES
IN THE CIVIL REGISTRY [RA 9048, Sec. 1]

RA 9048 can only be used with regards
clerical or typographical errors and change of
first or nickname which can be corrected or
changed by the Civil Registrar or by the
Consul General as regards non-residents.

CLERICAL OR TYPOGRAPHICAL ERROR
[RA 9048, Sec. 2(3)]

Definition: A mistake committed in the
performance of clerical work in
writing/copying/transcribing/ typing an entry
in the civil register that is harmless and
innocuous, such as misspelled name or
misspelled place of birth or the like, which is
visible to the eyes or obvious to the
understanding, and can be
corrected/changed only by reference to other
existing record/s: Provided, however, That no
correction must involve the change of
nationality, age, status or sex of the
petitioner.

WHO MAY FILE PETITION [RA 9048, Sec. 3]

Any person having direct and personal
interest in the correction of a
clerical/typographical error in an entry and/or
change of first name or nickname in the civil
register.

VENUE UNDER RA 9048 [RA 9048, Sec. 3]

1) Local Civil Registry of the city/municipality
where the record being sought is kept.
2) Local Civil Registry where the interested
party is presently residing/domiciled: Only if
the petitioner migrated to another place in
the country and it would not be practical for
such party, in terms of transportation
expenses, time and effort to appear in person
before the local civil registrar keeping the
documents to be corrected or changed. In
this case, the 2 local civil registrars
concerned will communicate to facilitate the
processing of the petition.
3) Philippine consulates: Only in cases of
Philippine citizens who are residing/domiciled
in foreign countries.

All petitions for correction of errors/change of
first names/nicknames may be availed of
only once.

VALID GROUNDS FOR CHANGE OF FIRST
NAME/NICKNAME UNDER RA 9048
[RA 9048, Sec. 4]

1) When the name is ridiculous, dishonorable or
extremely difficult to write/pronounce.
2) The new first/nick name has been habitually
and continuously used by the petitioner and
he has been publicly known by that first/nick
name in the community.
3) To avoid confusion.

PETITIONS CONTENTS UNDER RA 9048
Petition with the civil registrar or consul general
Publication of the petition at least once a week for 2
consecutive weeks
Posting by the civil registar of the petition in a
conspicuous place for 10 consecutive days
Decision by the civil registrar within 5 days after the
completion of the posting requirement

Transmission by the civil registrar of a copy of his
decision (together with the records of the proceeding)
to the Civil Registrar General

The Civil Registrar General may impugn the decision
based on grounds in RA 9048, and exercise appellate
jurisdiction

[RA 9048, Sec. 5]

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: [Secan Kok v.
Republic (1973)]
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.

ANNEXES TO THE PETITION [RA 9048,
Sec. 5]

1) A certified true machine copy of the
certificate or of the page of the registry book
containing the entries sought to be
corrected/changed.
2) At least 2 public/private documents showing
the correct entries upon which
correction/change shall be based
3) Other documents which the petitioner or the
city/municipal civil registrar or the consul
general may consider relevant and necessary
for the approval of the petition.
4) Certification from appropriate law
enforcement agencies that the petitioner has
no pending case or no criminal record.

PUBLICATION REQUIREMENT [RA 9048,
Sec. 5]

The petition must be published at least once
a week for 2 consecutive weeks in a
newspaper of general circulation.

COPIES OF PETITION TO BE FILED
[RA 9048, Sec. 5]

1) For the city/municipal civil registrar, or the
consul general;
2) For the Office of the Civil Registrar General.
3) For the petitioner.

DUTIES OF THE CITY/MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL
[RA 9048, Sec. 6]

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.

DUTIES AND POWERS OF THE CIVIL
REGISTRAR GENERAL [RA 9048, Sec. 7]

1) Within 10 working days from receipt of the
decision granting a 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/typographical.
b) The correction of entries is
substantial/controversial as it affects the
civil status of a person.
c) The basis used in changing the first/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/consul generals.

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 executory.

X. CANCELLATION OR
CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY

A. CANCELLATION OR
CORRECTION OF
ENTRIES IN THE CIVIL
REGISTRY UNDER RULE
108

PROCEDURE IN CANCELLATION OR
CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY UNDER RULE 108

RULE 103, 108 AND RA 9048 COMPARED

Cancellation/correctio
n of entries in the civil
registry (Rule 108)
Correction of clerical or
typographical error (RA
9048)
Judicial Administrative: Local civil
registrar or consul general
(for nonresident citizens)
Substantial changes (i.e.
those affecting civil
status, citizenship,
nationality and
substantial errors)
Clerical/typographical
errors and change in
first/nick name

Rule 103 Rule 108
Petition to be filed in the
RTC where the petitioner
resides
Verified petition filed in the
RTC where the
corresponding civil registry
is located
Civil registar is not a
party to the proceeding
Civil registrar concerned is
made a party to the
proceeding as a
respondent. The OSG
must also be served a
copy of the petition
Petition is filed by person
desiring to change his
name
Petition is filed by any
person interested in any
act/event/order/decree
concerning the civil status
of persons
Order for hearing shall
be published once a
week for 3 consecutive
weeks. No mention of
causing notice to be sent
Order for hearing shall be
published once a week for
3 consecutive weeks AND
the court shall cause
reasonable notice to be
given to persons named in
the petition

Cancellation/correction of entries in the civil
registry is a proceeding in rem. As such,
strict compliance with all jurisdictional
requirements, particularly on publication, is
essential in order to vest the court with
jurisdiction.

WHO MAY FILE PETITION [Rule 108, Sec. 1]

Any person interested in any
act/event/order/ decree concerning the civil
status of persons.
The civil registrar and all persons who
have/claim any interest shall be made parties
to the proceeding.

VENUE [Rule 108, Sec. 1]

RTC of the place where the corresponding
civil registrar is located.

ENTRIES SUBJECT TO CANCELLATION
OR CORRECTION [Rule 108, Sec. 2]

1) Births;
2) Marriages;
3) Deaths;
4) Legal separations;
5) Judgments of annulments of marriage;
6) Judgments declaring marriages void ab initio;
7) Legitimations;
8) Adoptions;
9) Acknowledgements of natural children;
10) Naturalization;
11) Election/loss/recovery of citizenship;
12) Civil interdiction;
13) Judicial determination of filiation;
14) Voluntary emancipation of a minor;
15) Change of name.

COURT ORDER AFTER FILING OF
PETITION

1) Fix the date and place for the hearing.
2) Cause reasonable notice to be given to the
persons named in the petition.
3) Cause the order to be published once a week
for 3 consecutive weeks in a newspaper of
general circulation in the province.
4) Make orders expediting the proceedings, and
may also grant preliminary injunction for the
preservation of parties rights pending such
proceedings.
5) Grant/deny the petition. In either case, a
certified copy of the judgment shall be served
Petition for change of name
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 registar 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
Judgment granting/denying the petition. Copy of the
judgment shall be served upon the civil registrar,
who shall annotate the same

upon the civil registrar concerned, who shall
annotate the same.

ACTIONS TO BE TAKEN TO OPPOSE THE
PETITION [Rule 108, Sec. 5]

The civil registrar and any person
having/claiming any interest under the entry
whose cancellation or correction is sought
may file an opposition in court, within 15
days from notice of the petition or from the
last date of such notice.

B. CANCELLATION OR
CORRECTION OF
ENTRIES IN THE CIVIL
REGISTRY UNDER RA
9048

Note: See the section on change of name.

XI. APPEALS IN SPECIAL
PROCEEDINGS

APPEALABLE ORDERS/JUDGMENTS [Rule
109, Sec. 1]

1) If it dis/allows a will;
2) If it determines who are the lawful heirs or
the distributive shares;
3) If it wholly or partially dis/allows a claim
against a decedents estate, or any claim
presented on the estates behalf in offset to a
claim against it;
4) If it settles the account of an
executor/administrator/trustee/guardian;
5) If it constitutes a final determination in the
lower court of the rights of the party
appealing, in proceedings relating to estate
settlement or administration of a
trustee/guardian;
Exception: Appointment of a special
administrator is not appealable.
6) If it is the final order/judgment rendered in
the case, and affects the substantial rights of
the person appealing.
Exception: Orders granting/denying a
MFR/MNT.

While some of the items in Rule 109, Sec.1
may be considered as interlocutory under
ordinary civil actions, the nature of special
proceedings declares them as appealable and
as exceptions to Rule 41, Sec. 2, [Regalado]
Since multiple appeals are contemplated
under this provision, appeals in special
proceedings necessitate a record on appeal
as the original record should remain with the
trial court. [Regalado]
In special proceedings, the period of appeal is
30 days, a notice of appeal and a record on
appeal being required. The appeal period
may be interrupted by the filing of a
MFR/MNT. Once the appeal period expires
without an appeal/MFR/MNT, the order
becomes final. [Testate Estate of Biascan v.
Biascan (2000)]

ADVANCE DISTRIBUTION [Rule 109, Sec.
2]

Notwithstanding a pending
controversy/appeal in estate settlement
proceedings, the court may permit that the
estates parts which are not affected by the
controversy/appeal be distributed, upon
compliance with Rule 90.

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SPECIAL PROCEEDINGS REMEDIAL LAW

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