R72-109 Special Proceedings Notes

Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in SPECIAL PROCEEDINGS

Notes by: Paul Lemuel E. Chavez
SPECIAL PROCEEDINGS NOTES

Preminary Considerations
apply
suppletory
May involve
only one party
Special Proceedings
-
Defined by R1 S4 as a remedy by which a

party seeks to establish a status, a right, or
a particular fact
1970 Bar: Distinguish Special Proceedings from

Criminal Procedure and Ordinary Civil Action
Special
Proceedings
A remedy by
which a party
seeks
to
establish
a
status, a right,
or a particular
fact
Governed by
special rules,
and in the
absence
of
special
provisions,
the
rules
provided for
in
ordinary
actions shall
be, as far as
practicable,
Criminal
Procedure
The
State
prosecutes a
person for an
act
or
omission
punishable by
law
A proceeding
wherein
a
person
is
prosecuted by
the State for
acts
or
omissions
committed in
violation
of
penal
laws,
and to impose
the
corresponding
penalty
provided for
by penal laws
Governed by
the Revised
Rules
of
Criminal
Procedure
Ordinary
Civil Action
A party sues
another
for
the
enforcement
or protection
of a right, or
the prevention
or redress of a
wrong
Initiated
petition
Except
Habeas
Corpus, NOT
based on a
cause
of
action
Involves 2 or
more parties
Initiated
by
complaint
Based
cause
action
on a
of
Sources of Special Proceedings:

-
Governed by
the rules for
ordinary civil
actions
by
Involves the
State against
the accused
Initiated
by
complaint (but
filed in court
by
Information)
Based on an
act
or
omission
punishable by
law
R72-109
1987 Constitution
RA7160 Katarungang Pambarangay Law
BP 129 or the Judiciary Reorganization Act
of 1980
RA 7691 or An Act Expanding the
Jurisdiction of the MTC (particularly those
with respect to gross estate of the
deceased)
A8 S5 P5, 1985 Constitution
Administrative Circulars issued by SC
o AM 3-2-5- Guardianship of Minors
o AM 3-4-4- Custody of Minors/HC
o AM 8-1-16- Habeas Data
o AM 7-9-12- Amparo
RA 9048 or Correction of Entries in the Civil
Registry
RA 8042
Jurisprudence
RA 9262
CONSTITUTIONAL PROVISIONS RELATING TO

SPECIAL PROCEEDINGS
A3 S1
No person shall be deprived of life, liberty, or

property without due process of law, nor shall any
person be denied the equal protection of the laws.
A8 S1
Judicial Power shall be vested in 1 Supreme Court
and in all other courts as may be established by law.
Judicial Power includes the duty of the courts to

settle actual controversies involving rights which are
legally demandable or enforceable, and to
determine whether or not there is grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
government.
The Supreme Court may review, in an appropriate

proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
within 30 days from its filing.
A8 S2
The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme
Court of its jurisdiction over cases enumerated in
Section 5 thereof
No law shall be passed reorganizing the judiciary

when it undermines the security of tenure of its
members.
A8 S5 P5
The Supreme Court shall promulgate rules
concerning the protection and enforcement of
constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice
of law, the IBP, and legal assistance to the
underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of
special courts and quasi judicial bodies shall remain
effective unless disapproved by the Supreme Court.
A6 S30
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
A7 S18 P3
A8 S5
The Supreme Court shall have the following powers:
1.
exercise original jurisdiction over cases

affecting ambassadors, public ministers and
consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto and
habeas corpus
2.
review, revise, reverse, modify, or affirm on

appeal or certiorari, as the law or the rules
of court may provide, final judgments and
orders of lower courts in:
a.
all
cases
in
which
the
constitutionality or validity of any
treaty, international or executive
agreement,
law,
presidential
decree,
proclamation,
order,
instruction,
ordinance,
or
regulation is in question
b.
all cases involving the legality of

any tax, impost, assessment, or
toll, or any penalty imposed in
relation thereto
c.
All cases in which the jurisdiction

of the lower court is in issue
d.
All criminal cases in which the

penalty involved is reclusion
perpetua or higher
e.
All cases in which only an error or

question of law is involved
All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable on
recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive
bail shall not be required. [?])
A3 S15
The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or rebellion
or when public safety requires it.
A15 S1
(Others) :
The state recognizes the Filipino Family as the

foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.
A2 S11
A15 S2
The state values the dignity of every human person

and guarantees full respect for human rights.
Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by
the State.
A2 S12
The state recognizes the sanctity of the family and
shall protect and strengthen the family as a basic
autonomous social institution. It shall equally
protect the life of the mother and the life of the
unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth
for civic efficiency and moral character shall receive
the support of the government.
(A3 S13
A15 S3
The State shall defend:
1.
the rights of spouses to found a family in

accordance with their religious convictions
and the demand of responsible parenthood
2.
rights of children to assistance including

proper care and nutrition, and special
protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions
prejudicial to their development.
A15 S4
The family has the duty to care for its elderly
members but the state may also do so through just
program of social security.
10. Writ of habeas data

11. Correction of clerical errors
12. Proceeding allowing illegitimate children to
use the surname of their father
13. Declaration of nullity or annulment of
marriage
14. Declaration of legal separation
15. Commitment of children
What are the special proceedings?

R72 S1- SEGTARHHCVJCDC
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Settlement of estate of deceased persons

Escheat
Guardianship and custody of minors
Trustees
Adoption
Rescission and revocation of adoption
Hospitalization of insane persons
Habeas corpus
Change of name
Voluntary dissolution of corporations
Judicial approval of voluntary recognition of
minor natural children
12. Constitution of the family home
13. Declaration of absence and death
14. Cancellation of correction of entries in the
civil registry
EXCLUSIVE?! NO!!!
Why?
Because these are proceedings tending to establish a
status, a right, or a particular fact
Nature of Special Proceedings:

IN REM!
-
Note further that Special Proceedings are not Special

Civil Actions, though both are governed by own rules
Special Proceedings are governed by own rules,
EXCEPT:
-
Certain proceedings not mentioned are considered

as special proceedings, such as:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Declaration of presumptive death

Annulment / nullity of marriage
Naturalization proceedings
Liquidation proceedings
Corporate rehabilitation
Recognition and enforcement of arbitration
proceedings
Vacation, setting aside, correction or
modification of an arbitral award
Any application with a court for arbitration
assistance and supervision
Writ of amparo
Binding upon the whole world

o Note that most special proceedings
require publication
When there are no applicable provisions in

the rules, rules on Civil Procedure /
Ordinary Civil Actions apply only in a
suppletory character
What rule governs special proceedings?

Rule 72-109, Rules of Court
Exception:
R72 S2
In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as far
as practicable, applicable in special proceedings
(aka Rules on Ordinary Civil Actions

suppletorily to Special Proceedings)
-
apply
Special Proceedings has its own rules, if

there are no applicable provisions, apply
Rules on Ordinary Civil Actions
Settlement of Estate of the Deceased, being

adversarial in character, is demurrer to evidence
allowed?
YES!!!
Basis: Rule 72 S2, the rules on civil procedure apply
to special proceedings in a suppletory character.
What are those specific provisions in Civil

Procedure which also apply to special proceedings?
1.
Rule 4- Rules on Venue
Can the RTC-Manila entertain petition for probate

of the will if the deceased died in Quezon City?
YES!!! Because the rules on venue can be waived.
Failure to object to improper venue is tantamount to
waiver.
Jurisdiction
-
IF the court has no jurisdiction over special

proceedings,
-
(Special Proceedings in relation to Rule 4)
2.
Rule 7 S1- Parts of a Pleading
Note that all of special proceedings are commenced

by way of petition
A petition is a pleading
Hence, the need to comply with Sections 4 and 5 of
Rule 7
-
Verification
Certification against non forum shopping
Power or authority of the court to hear,

decide a case, and implement its decisions
Motion to dismiss can be filed for lack of

jurisdiction over the subject matter
o Note, however, that the dismissal
is without prejudice
What then will be your remedy?

Refile the petition, as provided for in Rule 16
Can the court dismiss the petition motu proprio for

lack of certification against forum shopping?
NO!!!
A motion to that effect needs to be filed, for failure
to comply with condition precedent
Basis: Rule 72 S2
(S)
3.
Rule 16- Motion to Dismiss
YES!
Basis: Rule 72 S2
4.
R33- Demurrer to Evidence
SETTLEMENT OF THE ESTATE OF THE DECEASED

(RULE 73-90)
What is ESTATE?
An estate is an artificial being created by operation
of law which will undertake distribution of
properties left by the deceased.
Distribution, disposition, management of

properties left by deceased
Being a juridical being, it can sue and be
sued
o Juridical being with entity separate
and distinct from the decedent
RA7160- Barangay Conciliation Law / Katarungang

Pambarangay
For purposes of settlement of estate of the
deceased, there is no need to refer the case to the
Katarungang Barangay first! (vda de Borromeo vs
Pogoy)
Juridical persons such as estate are not covered by
Barangay Conciliation proceedings.
NOTE: Trusteeship and Guardianship does not need
to pass Barangay
SETTLEMENT OF ESTATE OF THE DECEASED

Definition:
Settlement of Estate of the Deceased is a conciliation
proceeding where the property of the deceased
would be distributed pursuant to the provisions of
law or the will of the decedent.
Personal and Real- Totality of Estate of

Deceased (GROSS VALUE- value before deductions)
If the gross value of estate of the deceased does not

exceed 300k OMM or 400k MM, MTC / MuTC /
MCTC, MuTC in Cities has jurisdiction
1997 Bar: The gross estate of the deceased is 200k,

the property is in Pampanga. Determine the
jurisdiction and the venue.
Because the gross value of the estate of the
deceased does not exceed 300k OMM, MTC has
jurisdiction (Basis: BP 129 as amended by RA 7691)
Note however, that when it comes to venue, the
question is misleading (Property located in
Pampanga).
To answer the question, here goes: As to venue, my
answer would depend on whether the decedent is a
resident or non-resident of the Philippines. If the
decedent is a resident of the Philippines, whether a
citizen or an alien, the venue shall be the last actual
residence of decedent. If the decedent is a nonresident, venue shall be the place where the estate /
property is located. Hence, in the case at bar, if
decedent is a resident, the venue shall be the actual
residence of the deceased (pwede Pampanga,
pwede hindi, depende sa facts), but if a nonresident, then Pampanga is the proper venue
because that is where his estate is located.
If filed in the court not with jurisdiction, file motion

to dismiss on the ground of lack of jurisdiction over
the subject matter
Jurisdiction (BP129 RA7691): Depends upon the

gross value of the estate of the deceasedvalue of
the estate prior to deductions of debts, etc
Venue:
If the gross value of the estate of the deceased

exceeds 300k OMM or 400k MM, RTC has
jurisdiction
If the decedent is:
R73 S1
an inhabitant of the Philippines at the time

of his death,
o whether a citizen or an alien,
his will shall be proved,

or
letters
of
administration granted,
and his estate settled,
in the COURT in the province in which he resides at
the time of his death,
f.
Publication in a newspaper of general

circulation once a week for 3 consecutive
weeks
Note: In the 2006 Bar Examinations, in legal forms

and practical exercises, this question was asked:
Prepare a Draft of Adjudication of Sole Heirship
and if he is an inhabitant of a foreign country,

-
the court of any province in which he had

estate.
NOTE: Venue is WAIVABLE
To answer, follow the contents of Rule 74, in a

PUBLIC INSTRUMENT
What is a NEWSPAPER OF GENERAL CIRCULATION?

(Basa vs Mercado)
Modes of Settlement of Estate of the deceased:

1.
-
JUDICIAL or EXTRAJUDICIAL
Judicial- with court intervention
Extrajudicial- without court intervention
2.
-
PROBATE or NON PROBATE

Probate- there is a need to prove the will,
judicially (or administratively)?
No need to prove will / intestate testate
succession
Kinds of Settlement of Estate of the Deceased:

A. Adjudication of Sole Heirship (R74 S1)
-
Extrajudicial settlement, non-probate

Adjudicated unto himself the entire estate
Requirements:
a.
b.
c.
d.
e.
No will / intestate
No outstanding debts
One surviving heir / sole heir
Affidavit of adjudication of sole heirship
filed in Office of Register of Deeds
File bond equivalent to the value of
personal property or lien in favour of
creditors in case of real property
1.
Made within the Courts Jurisdiction
2.
Published at regular intervals for

determination of news and general
information
3.
with bona fide subscription list of paying

subscribers
4.
not devoted to the interest of a particular

class
Once a week for 3 consecutive weeks- NOT

NECESSARILY 21 days, rather, it is once a week, 3
weeks consecutively- THIS IS WHAT CONFERS
JURISDICTION UPON THE COURT
Remedies of those aggrieved by extrajudicial

settlement:
-
within 2 years, file a claim against the bond

or the real estate
rescission in case of preterition of
compulsory heir tainted with Bad Faith
reconveyance of real property
action to annul deed of EJ settlement on
the ground of fraud
reconveyance based on implied or

constructive trust
ordinary action against distributees, but not
against the bond
When there are 2 or more Heirs,

B.
f.
g.
h.
Publication once a week for 3 consecutive

weeks in a newspaper of general circulation
Bond in case of personal property left by
decedent who will answer for claim of those
unduly deprived
Registration of said affidavit of agreement
Extrajudicial Settlement of Estate of the

Deceased (R74 S1)
Done by means of CONTRACT between the surviving

heirs
Protections accorded to those unduly deprived:

a.
b.
c.
Publication
Bond- can go after it
File petition for surrender of your share as
far as estate of deceased is concerned
C.
Settlement of Estate of the Deceased of

Small Value
Property:
a.
No.............
b.
c.
d.
e.
Gross value of estate of the deceased does

not exceed 10k
Summary judicial adjudication
Applies to testate or intestate
Available even if there are debts
Filed by petition containing allegations of
gross value of estate upon hearing not less
than 1 months nor higher than 3 months
from the date of last publication or notice
Publication in a newspaper of general
circulation once a week for 3 consecutive
weeks
Notice to interested persons
Filing of a bond in an amount fixed by court
Court order is recorded in the Office of the
Clerk of court
Order of partition or award is recorded in
the proper Registry Office
EXTRAJUDICIAL SETTLEMENT OF ESTATE OF THE

DECEASED
Know all men by these presents:
---------------------------------------------------------
S1 to S4 R74
-
2 years for those unduly deprived of the

estate to file...
f.
Minors represented by Guardian ad litem

for purposes of distribution
o Subject to Rule 74 S4, after
settlement and distribution
g.
h.
i.
j.
Requirements: (R74 S1)

a.
b.
c.
d.
e.
Decedent died intestate

No outstanding debts
Heirs are all of age, or if minors, are
properly represented
Public instrument (notarized contract)
Registration with registry of deeds where
property is located
Before, filed with RTC of last residence

But NOW, due to amendments brought by RA 7691,
jurisdiction is now with MTC- PURSUANT to the RULE
ON SMALL CLAIMS (Summary)
Publication- 5k
Lawyer- 5k
Appearance fee- 2k
-
Parang kulang pa?!
Venue- last residence of decedent, or if a non

resident, then where estate may be found
Last Residence- actual residence
-
Liabilities of Distributees of Estate (Rule 74 S4)

-
Heir or other person unduly deprived of

lawful participation in the estate
Outstanding debts which have not been
paid
Heir or other person is unlawfully deprived
of lawful participation payable in money
Kung san permanent

No 2 residences at the same time
Nature of Probate Proceedings:

a.
IN REM- binds whole world, publication as a

requirement
Why the need to probate will?

-
Properties subject to settlement of estate of the

deceased:
For reasons of public policy

o R75 S1, stating that no will shall
pass either real or personal
property unless it is proved and
allowed in the proper court
IF you divide a property outside of probate

proceedings, and there is a will, the division is VOID
REAL AND PERSONAL PROPERTY
-
Real property- A415, NCC

Personal property- A416-417, NCC
o Movables
o Credits
o Bonds
o Deposits
b.
Imprescriptible
In case of intestate estate proceedings, partition,

basta kapag may lumabas na nag-iwan pala ng last
will and testament ang decedent, then the probate
proceedings shall prevail, and the former shall be
held in abeyance
Settlement of Estate of the Deceased

1.
Probate of the will- with will
With necessity of proving, imprescriptible
2.
Intestate Estate Proceedings- without will
What is a WILL?
-
Jurisdiction- depends on the gross value of the

estate of the deceased
Exceeds 300k OMM 400k MM- RTC
Formal written disposition of a person

allowing for the distribution of his
properties and rights according to his
intention, to take effect after his death
Understand the concept in relation to the following:

-
Declaratory relief
Parol evidence rule
Does not exceed 300k OMM 400k MM- MTC
Includes WILLS- the will itself only

is the
one available,
no
modification as far as real estate is
concerned
-
Probate of a will
2 kinds of Will
1.
2.
Notarial Will
Holographic Will
Names, ages, residents of heirs, devisees,

legatees
Probative value and character of the estate
Name of the person for whom letters are
prayed
Name of the person having custody of the
will if not yet delivered to the court
V.
Court to fix time and place for proving

the will
If he refuses, administrator with a will annexed shall

be appointed
VI.
Notice to be published 3 weeks

successively (76 3)
(NOTE: NCC provisions)
VII.
Notice for time and place for proving

the will to heirs, legatees, devisees of
testator, executor if not the petitioner,
co executors not petitioning 20 days
before hearing by mail or 10 days by
personal service
VIII.
Prove Due execution of the Will
Obligation of executor to deliver the same 20 days

after such death
Hence, failure to comply with NCC requirement is a

ground for disallowance of a will
Example: when executed and attested not in
conformity of the requisites provided for by law
PROCEDURAL REQUIREMENTS:
I.
II.
Custodian to deliver the will to the

court within 20 days after knowing of
testators death (75 2)
20 days after knowledge of death or
knowledge of being named executor,
executor to present will to the court
having jurisdiction (75 3)
III.
Petition for allowance filed (76 1) see

below, WHO MAY FILE
IV.
Contents of Petition: (76 2)
Jurisdictional facts
The will was executed in compliance with

formalities
Testator was of sound and disposing mind

at the time of making the will
No vitiation of consent by duress, fear,

threats
Not procured by undue and improper

influence or pressure on the part of the
beneficiary or of some other person for his
benefit
Signature of testator is genuine, not

procured by fraud or trick, testator
intended that what he signed is his last will

and testatement
IX.
Hearing under the following rules: (see:

Rule 76)
Uncontested notarial will

-
At least one subscribing witness to testify

that the will is executed as required by law
The testimony of at least 1 subscribing witness only

if such witness testifies that the will is executed as
is required by law
when none of the subscribing witnesses resides in
the province but the deposition of one or more of
them can be taken elsewhere, the court may, on
motion, direct it to be taken, and may authorize a
photographic copy of the will to be made and to be
presented to the witnesses on his examination,
who may be asked the same questions with respect
to it, and to the handwriting of the testator and
others, as would be pertinent and competent if the
original will were present
-
Outside province, deposition (R76 S7)
if the subscribing witnesses are dead, insane, or

none of them resides in the Philippines, the court
may admit the testimony of other witnesses to
prove the sanity of the testator and the due
execution of the will. And as evidence of execution
of the will, it may admit proof of the handwriting of
the testator and of the subscribing witnesses or of
any of them
-
Dead, etc, other witnesses can testify (R76

S8)
Uncontested holographic will

-
1 subscribing witness who knows the

handwriting and signature of testator
If none, expert testimony may be taken
at least 1 witness who knows the handwriting and

signature of the testator explicitly declare that the
signature and the will are in the testators
handwriting
in the absence of such witness, and if the court

deems necessary, expert witness may be resorted
to
Contested notarial will
-
All subscribing witnesses plus notary public

If absent, sufficiently show as far by
testimony
If all are dead, etc, other witness or expert
witness may be availed or presented
(Expert witness as exception to opinion Rule
under Rule 130)
all subscribing witnesses and the notary public, if

present in the Philippines and not insane, must be
produced and examined, and the death, absence,
or insanity of any one of them must be shown to
the court
if all or some of the witnesses are present in the
Philippines but outside the province where the will
has been filed, their deposition must be taken
if any or all of the witnesses testify against the due
execution of the will or do not remember having
attested to it, or are of doubtful credibility, the will
may be allowed if the court is satisfied from the
testimony of other witnesses and all the evidence
presented that the will was executed and attested
in the manner required by law
Contested holographic will
-
3 witnesses who knows the handwriting

and signature of testator
o IMPT: prove signature- or else,
ground for disallowance of a will
If none, expert testimony may be taken
Hence, pag 2 lang, e di petition denied!

allowed if at least 3 witnesses who know the
handwriting of the testator explicitly declare that
the will and the signature are in the handwriting of
the testator
in the absence of any competent witness, and if the

court deems it necessary, expert testimony may be
resorted to
4.
5.
Notarial Will
-
With attestation clause

o Non compliance therewith, patay
ka... may problema ka sa petition
Who may file petition for probate of a will?

1.
2.
3.
4.
5.
6.
Testator himself (in case of ante mortem

probate)
Executor
Devisee
Legatee
Any person interested in a will
Any creditor
Filed before MTC or RTC

IF testator is the one who filed, what is the
quantum of proof required?
-
Determine and rule upon issues relating to

settlement of the estate, such as
administration, liquidation, and distribution
of the estate
Determine the following:
a. Who are the heirs of decedent
b. Recognition of a natural child
c. Validity of disinheritance effected
by testator
d. Status of a woman who claims to
be the lawful wife of decedent
e. Validity of waiver of hereditary
heirs
f. Status of each heir
g. Whatever
property
in
the
inventory is conjugal or exclusive
property of deceased spouse
h. Matters incidental or collateral to
the settlement and distribution of
the estate
As a general rule, the probate court has no

power to determine issues of ownership,
except: (non conclusive/Disputable Presumption
under Rule 131)
Testimony niya?
o Pwede
a.
b.
If a will is probated, it is valid as far as due execution
is concerned.
Once a decision is made, it is conclusive, and can no
longer be questioned
c.
d.
What are the powers of the probate court?

1.
2.
3.
Distribute shares
Determine who are the legal heirs
Issue warrants and processes to secure
attendance of witnesses
For including property in inventory

without
prejudice
to
final
determination in a separate action
When all parties are heirs and they
submit issue of ownership to the
probate court provided that the
rights of the parties are not
prejudiced
Question is one of collation or
advancement
When the parties consent to
assumption of jurisdiction by the
probate court and the rights of
third parties are not impaired
To Determine the following questions:

a.
b.
Who are the heirs of decedent

Recognition of a natural child
c.
d.
e.
f.
g.
h.
Validity of disinheritance effected by

testator
Status of a woman who claims to be the
lawful wife of decedent
Validity of waiver of hereditary heirs
Status of each heir
Whatever property in the inventory is
conjugal or exclusive property of deceased
spouse
Matters incidental or collateral to the
settlement and distribution of the estate
or fraudulently destroyed during the

lifetime of testator without his knowledge
3.
Its provisions are clearly and distinctly

proved by at least 2 credible witnesses
How to / Who can prove due execution, genuiness?

Pursuant to rules of evidence:
1.
By persons or witnesses present when

executed
Grounds for disallowance of a will (important:

lumalabas sa Bar):
2.
By notary public
Rule 76 S9
3.
By any person present during execution of

the will
1.
2.
3.
4.
5.
if the will is not executed and attested as

required by law
if the testator is insane or otherwise
mentally incapable to make a will
if the will was executed under duress or
under the influence of fear or threats
if the will was procured by undue and
improper influence, on the part of the
beneficiary or of some other person for his
benefit
if the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his
will at the time of fixing his signature
In case of lost or destroyed will, no probate, except

as provided in R76 S6: (note this, lumalabas to sa
bar) SECONDARY EVIDENCE as exception to the
Best Evidence Rule
1.
Execution and validity of the will by the

testator be established
2.
That the will is proven to have been in

existence at the time of the death of
testator or is shown to have been accidently
NOTE that proving lost or destroyed will is exception

to best evidence rule
-
Lost or destroyed will in accordance with

R130 S3, prohibiting presentation of
secondary evidence
A petition for probate of a will is an initiatory

pleading
If the parties subsequently file a petition for letters
testamentary or of administration, is it considered
as initiatory pleading?
NO! It is considered as continuation of probate of a
will, hence, there is no need for petition against non
forum shopping
Is oral partition valid between surviving heirs?

As amongst the heirs, valid amongst themselves.
But in order to bind third persons, for purposes of
registration, the partition must be in a public
instrument to be valid as to registration. If not in a

public instrument, then not valid as to registration.
REPROBATE OF A WILL (note: lumalabas to sa bar)

Rule 77
-
Probate of a will,
-
There is need for appointment of executor,

if with a will
If no will, then administrator
Can there be administrator in case there is a will?
How to prove?
-
Copy of the will duly probated by court of

competent jurisdiction in the foreign
country
Duly allege the law on probate proceedings

in the foreign country, allege in the body of
the
petition
for
reprobate,
duly
authenticated
YES!
In 2 instances:
-
When executor refused to accept the trust,

or
The executor is disqualified
Called, ADMINISTRATOR WITH A WILL ANNEXED
Requisites:
1.
Due execution of the will in accordance

with foreign laws
2.
Testator is domiciled in a foreign country
3.
Will is admitted to probate in such country
4.
Foreign court or tribunal is a probate court
5.
Law of the foreign country on procedure

and allowance of the will
Who can be appointed executor or administrator?

Order of preference in appointment of regular
administrator or executor:
1.
2.
3.
4.
Surviving spouse
Next of kin
Any person interested in the will, or
creditor
Any person the court may appoint
Will probated abroad is not automatically

allowed in the Philippines
o Hence, the need for petition for
reprobate of a will
R77 in relation to Rule 39 S48 (Effect of foreign

judgment) and Processual Presumption
Remedies in case of adverse decisions in:
Appointment of regular administrator- APPEAL
-
Because appointment is final and executory
A probate of will abroad is considered as foreign

judgment, hence, the need for petition for reprobate
to be considered binding and enforceable upon our
courts
Appointment of special administrator- CERTIORARI

RULE 65
-
Because appointment is interlocutory in

character
Requisites to be appointed:
EXECUTOR: (Rule 78 S4)
-
Named in the will
The will is proved and allowed

Testator is competent, accepts the trust,
and gives bond
decision is final and executory, hence, APPEAL is the

proper remedy
1.
Minor
2.
Non resident
3.
One who in the opinion of the court is

unable to exercise the duties of a trust by
reason of:
a. Drunkenness
b. Improvidence
c. Want of understanding
d. Want of integrity
e. Conviction of an offense involving
moral turpitude
ADMINISTRATOR (Rule 79 S2)

-
Competent
Appointed by the court
Files petition for letters of administration
o Jurisdictional facts
o Names, ages, residences of heirs,
creditors
o Probative value and character of
the estate
o Name of person for whom letters
are prayed
Powers of E or RA (R84 S1-3)

-
Have access to, examine and take copies of

books and papers relating to partnership in
case of deceased partner
Examine and make invoices of property

belonging to the partnership in case of
deceased partner
Maintain in tenantable repairs, houses,

other structures and fences and deliver the
same in such repair to heirs or devisees
when instructed to do so by the court
Make improvement on properties under

administration with necessary court
approval except for necessary repairs
Possess and manage the estate when

necessary for payment of debts, for
payment of expenses of administration
So, lasenggo- disqualified

Drug addict- disqualified (Bakit? Hmmm... pwedeng
pumasok to sa improvidence ah... )
Convicted of dishonesty, or with issues about itdisqualified
Convicted of crime INVOLVING MORAL TURPITUDE
What is moral turpitude?
-
an act of baseness, vileness, depravity in

the private and social duties which a man
owes his fellow men, to society in general,
contrary to the accepted and customary
rule of right and duty between man and
woman or conduct contrary to justice,
honesty, modesty, or good morals (Herrera,
p.81)
o basta act contrary to justice,
honesty, modesty, or good morals
What are crimes involving moral turpitude?

HINDI LAHAT AH!
As far as Executor or REGULAR ADMINISTRATOR is

concerned (N/A to special administrator, who are
disqualified to serve as such? (R78 S1)
To question, file comment or opposition to the
petition, if denied, then as far as they are concerned,
Key: basta may PANLOLOKONG INVOLVED (kasi to be

Executor or Administrator, involves position of trust
and confidence)
1.
estafa
2.
3.
falsification of public documents

perjury
Rape? NO!!!! Ano bang kinalaman ng rape sa

pagiging executor or administrator ng estate????!!!
NOTE HOWEVER, na above disqualifications apply
only to appointment of REGULAR ADMINISTRATOR,
not to appointment of special administrator.
(in case of opposition on appointment/appointment

of special administrator, if denied, certiorari is
proper remedy, because order of appointment is
interlocutory [R65 rel to R41 S1])
Powers of SA: (80 2)
Removal of Executor or Administrator, GROUNDS:

(Rule 82 S2)
possess and charge of goods, chattels,

rights, credits, estate
preserve the properties
commence and maintain suits
neglect to render accounts within 1 year

and when required by the court
sell only perishable properties or properties

ordered sold by court
neglect to settle the estate according to the

Rules
pay debts only as may be ordered by the

court
neglect to perform order or judgment of

the court or duty provided by Rules of Court
submit inventory and render accounting
absconding
insanity, incapability, or unsuitability of

discharging trust
Requisites in case of Executor or Administrator:

1.
File Bond- required
NOT ABSOLUTE!
Other grounds:
1.
2.
Death
Resignation, etc
Is there any instance when executor

administrator is exempt from filing bond?
YES!
-
Special Administrator
or
When provided by testator in his last will

and testament that filing of bond is not
needed
Instances when appointed:

1.
delay in appointment of executor or

administrator
2.
delay in appeals in main case
3.
when the executor or regular administrator

is claimant of the estate he represents
Executor or administrator was appointed, here

comes heir, now, can the heir file petition for
appointment of his person as administrator?
NO!!!! Unless there is ground for removal of
executor or administrator, di pwede basta mag file
yung heir ng petition for his appointment as

administrator
In case of Adverse Decision- appeal from the order
of appointment (pag regular administrator)
1.
When executor is cross examined on those

matters
Principle of Dead Mans Statute (Rule 130 S23)reason for disqualification

REQUISITES (Rule 130 S23):
Rule 83 INVENTORIES
Witness is a
o party or
o assignor of a party
to a case of persons in
whose behalf a case is
prosecuted
action is against
o executor or
o administrator or
o other representative of deceased
person or
o person of unsound mind
subject matter of the action is

o claim or
o demand against
estate of deceased person
or
against person of unsound
mind
testimony refers to
o any matter of fact which occurred
before the death of such deceased
person or before such person of
unsound mind
To be made within not mandatory period of 3 mos

from the grant of letters testamentary or letters of
administration (S1)
Articles not subject: (S2)
1.
2.
3.
wearing apparel of surviving

spouse and minor children
marriage bed and bedding
provisions and other articles as will
necessarily be consumed in
subsistence of the family of the
deceased
Question on rentals.
motion?
Can it be filed by mere
NO!!! Executor or administrator must file action

against lessee by way of independent action
-
because property is not yet included in

estate of deceased
rd
o Reason why file a claim against 3
person
by
Executor
or
Administrator
Can Executor or Administrator be made to testify to

those matters relating to executor by deceased
before his death?
(Related to Rules on Evidence)
NO!!!! Because disqualified to testify
Except:
Rationale: declarant cannot be cross examined, lips

are sealed forever by death
Purpose: designed to close lips of party plaintiff
when death permanently closed lips of party
defendant in order to remove from surviving party
the temptation to give false testimony and
possibility of fictitious claims against deceased
NOTE: Waivable
If testified to, with right to cross examine
If not, then waived
Principle of Statute of Non Claims

-
Claim by a person against the estate of

deceased which should be made not less
than 6 months nor more than 12 months
since first publication of allowance of the
will
o Letters testamentary issued, first
publication
After such order, allow claimants to file, or else,

barred forever, EXCEPT:
-
Belated claims (not claim not filed within

original period fixed by court, extended for
not higher than 1 month from order
allowing belated claims)
Claims against the Estate: (relate to Rule 3 S16, Rule

3 S20if dismissed, file under Rule 86)
1.
2.
3.
4.
Claim which survives death

a. Arising from contract, express or
implied
b. Note S20 R3 in relation to Special
Proceedings
c. May be claimed against estate of
the deceased
Funeral expenses
Expenses for last illness of decedent
R111 S4- death after arraignment
(interrelate the aforesaid provisions)
a. Aka LIABILITY ARISING FROM
DELICT
Criminal action- impliedly instituted civil action (Rule

87 in relation to Rule 111, death before
arraignment/after arraignment)
Specific claims against estate (Rule 86 S5):

-
For recovery of money not secured by him
Money claims, debts insured by decedent

during lifetime arising from contract
express or implied, due or not due,
contingent or not
Claims for funeral expenses
Claims for last illness
Judgment of money against decedent
Claims for taxes
Absolute claims
Contingent claims
Question regarding the person who died in

accident, while yung nabangga niya suffered
injuries. What is the remedy of the latter?
File suit for damages, contingent claim against the
estate para not barred by statute of non claims
How to file claim against estate: (Rule 86 S9)

1.
File claim before clerk of court, supported

by vouchers, receipts, judgment of the case
2.
Serve copy thereof

administrator
3.
Duly supported by affidavit stating amount

due and fact of no offsets
4.
If claim is not due or contingent,

accompanied by affidavit stating particulars
on
executor
or
Note in relation to R68 aka Foreclosure of mortgage
Remedies of Mortgagee after death of mortgagor

(Rule 86 S7):
3 remedies, avail 1, exclude others na

1.
2.
3.
Abandon or waive the security and

prosecute his claim against the estate and
share in the general distribution of the
assets of the estate
Foreclose his mortgage or realize upon his
security by action in court making the
executor or administrator a party defendant
and if there is a claim for deficiency, he may
file a contingent claim against the estate
within the statute of non claims
Rely solely on the mortgage and foreclose
the same at any time within the period of
the statute of limitations but he cannot be
admitted as creditor and shall not receive in
the distribution of the other assets of the
estate
Actions against Estate of the deceased (87 S1)

-
To recover real property or interest therein

from the estate
To enforce lien
Recovery of damages for injury to petitioner

or property
For revival of money judgment
Actions for causes which survive
How to file? Requirements (Rule 87 S10)
In short,
1.
2.
3.
Foreclose
Contingent claim
o Both must be present to be able to
claim deficiency
o Pay wala, wala!
Pag foreclose lang
Pag contingent claim lang
Deficiency of assets in hands of E or A
Abandon mortgage, prosecute claim against

estate
Deceased had made or attempted to make

fraudulent conveyance
Rely solely on mortgage and foreclose any

time within period of statute of limitations
Subject to would be liable to attachment on

his lifetime
E or A showed no desire to file action or fail

to institute the same within a reasonable
time
With leave of court
Bond filed
Action in the name of executor or

administrator
Foreclose mortgage, file contingent claim

against estate of deceased to be able to
claim deficiency
a. Pag foreclose lang, and no
contingent claim
i. BARRED FROM CLAIMING
DEFICIENCY! dapat,
foreclose
plus
file
contingent claim to be
entitled to deficiency
Hence, look at the problem:
Actions to be filed by executor or administrator

against third person for estate of deceased:
-
Person suspected of having conveyed

property, ask third person to appear before
it and examine him (87 6)
To recover property, rights, interests, debts,
where there is deficiency or assets in the
hands of E or A (87 9)
Ask third person with portion of estate of
deceased to render full accounting of
money, goods, chattel, etc
Conditions for payment of Claims (Rule 88)

-
Order by court of sale or exchange,

proceeds to satisfy debts and expenses
Exhaust personal property of deceased,
then the realty, in the following instances:
o
o
Personal estate not sufficient for

that purpose
Sale of personalty to the detriment
of participants
Notice with the purpose of notifying

subsequent buyers in case of title to or
possession of real property
Is notice of lis pendens needed to secure?

NO NEED!!!
-
Property is already included in

settlement, secured by probate court
the
Sale, Encumbrance of Property of Estate: (Rule 89)(no property of estate may be sold without court
approval)
1.
Petition before the court by E or A
2.
Notice to heirs, devisees, legatees
3.
Court approval of sale of property of estate

a. Pag wala, bawal
Hence, Executor or Administrator cannot just enter

into compromise agreements
4.
Court order to sell realty to pay debts and

legacies
Case filed against Executor or administrator in

another court, and without consent of the probate
court, the executor or administrator entered into
compromise agreement. Pwede?
NOTE: Creditors can stop the sale by giving bond

fixed by the court to pay debts and legacies
NO!!!
When sale of property of decedent may be

effected/instances/requirements: (Rule 89)
File claim against estate of deceased muna,

and that is the only time that the
compromise can be approved by the
probate court
Personal estate (S1)

o Pay debts and expenses of
administration
o Pay legacies
o Cover expenses for preservation of
the estate
Real Estate (S2)
Notice of lis pendens
o
o
o
Personal estate insufficient to pay

obligations
Sale of personal estate may injure
business
Testator has not made sufficient
provisions for payment of debts,
legacies, expenses
Deceased is under contract to
deed real property to beneficiaries
(E)
ESCHEAT (Rule 91)
What is escheat?
-
(S4)
o
o
When beneficial to heirs, devisees,

legatees, interested persons
Estate of deceased in foreign
country is not sufficient to pay
debts and expenses
Proceedings whereby a decedent who died

intestate (without will), and without heirs,
but left property, the latter shall become
property of the estate upon his death
Is it the same as reversion (R91 S5)?

-
NO
o
(S6)
o
Estate acquired on execution or

foreclosure sale when beneficial to
heirs, devisees, legatees, other
interested persons
The essence, however, is the same,

but, reversion is filed by state to
recover property of a person
unlawfully acquired in violation of
the Constitution, AMLA, Plunder
Law, or the Anti Graft law
R91 S1- escheat

Executor or administrator, in case of sale, is
required to file written petition setting forth: (R89
S7)
-
Debts due from settlement

Expenses of administration
Legacies
Value of personal estate
Situation of estate
Other facts showing sale as necessary or
beneficial
Requirement for advanced distribution of property:

Rule 90 S1
Distributee to give bond conditioned for payment of
debts,
funeral
expenses,
expenses
for
administration, allowance of widow, inheritance tax
By verified petition filed by Sol

Representative, stating the ff matters:
-
Gen
or
Decedent died intestate

No heirs or persons by law entitled to the
same
Decedent left real or personal properties
Decedent is a resident of the province of
last residence or if a non resident, has
property in the courts jurisdiction
Rule 91 S2
Hearing to be conducted not higher than 6 months
from entry of order, copy of order to be published
once a week for 6 consecutive weeks in a newspaper
of general circulation
Rule 91 S3
Effects of declaration of Escheat:
Resident decedent
Personal estate to be assigned to

municipality or city of last residence
Real estate to be assigned to municipality or
city where it may be found
Non resident decedent

-
Whole estate to be assigned to municipality

or city where found, for benefit of public
schools and charitable institutions and
centers in said cities or municipalities
NOTE: Expropriation- different from escheat and

revesion (See notes on civil procedure)
(G)
GUARDIANSHIP
(Rules 92-97, Guardianship of Incompetents; AM 32-5, Guardianship of Minors)
What is guardianship?
-
Special proceeding whereby the property of

the ward is administered by a person
appointed by the court
Guardian
Jurisdiction / Venue of Escheat proceedings:
RTC or MTC (depends upon gross value of the estate)
of the place where the decedent last resided before
his death or if a non resident, where his estate is
situated (Rule 91 S1)
A person appointed by court or by law to

administer the property of the ward
Jurisdiction and Venue:

In case of Guardianship of minor: (AM 3-2-5 S3)
Escheat
Decedent died
without a will,
no heirs, but
with property
Expropriation
Payment of just
compensation
Reversion
Concerns
property
for
public use
Family Court where the minor actually

resides or where the property situated if
non-resident minor (in relation to RA 8369
aka Family Courts Act of 1997)
In case of Guardianship of incompetent: (Rule 92 S1)

Remedies of heir unlawfully deprived (file within 5
years from judgment or else, forever barred):
1.
2.
Recover the properties escheated from the

city or municipality
Recover proceeds of the sale of the
property from the city or municipality (if
sold by the city or municipality)
In case of adverse decision on escheat, Remedy:

-
APPEAL (Record on Appeal 30 days- relate

to Rules 40 and 41)
RTC of the place of residence of

incompetent person or if a resident of a
foreign country, where the property or
portion thereof is situated
Who may petition for guardianship?

In case of minor: (for purpose of managing affairs or
properties)
S2, AM 03-02-05-SC
1.
Relative
Parent
Guardian
Brother or sister
Who are minors? Incompetents?
2.
Other person in behalf of minor
Minors:
Actual custodian
3.
Minor himself, if he is 14 years of age or

over
In case of incompetent:
Rule 93 S1 (if incompetent is a resident)
1.
2.
3.
4.
Relative
Friend
Other person in behalf of an incompetent
who has no parents or lawful guardian
Secretary of Health in case of insane person
who should be hospitalized or in favour of
an isolated leper
Any person below 18 years of age

Incompetents:
-
Suffering from civil interdiction
Hospitalized lepers
Prodigals
Deaf and dumb who are unable to read and

write
Of unsound mind, even though with lucid

interval
Not of unsound mind, but by reason of age,

disease, weak mind, other similar diseases,
cannot take care of the property without
outside aid, becoming an easy prey to
deceit and exploitation
Rule 93 S6 (if incompetent is a non resident)

1.
2.
3.
4.
Relative
Friend of such person
Any person interested in his estate, in
expectancy or otherwise
Secretary of Health in case of insane minor
who needs to be hospitalized
Note that pursuant to the Domestic Adoption Act (S7

DAA), the ward may be adopted by the Guardian
after termination of Guardianship
Kinds of Guardians
1.
Natural Guardian- parents of ward
2.
Guardian ad litem- appointed for specific

purpose
3.
Judicial Guardian- appointed to manage

affairs or properties of the ward
Who can be guardians of a minor?

(S16, Rules on Guardianship of minors)
-
Parents
Surviving grandparents or if several, court

to select taking into account all relevant
considerations
Oldest brother or sister,
Actual custodian,
o
In the latter 2, higher than 21 y o,

unless unfit or disqualified
Any other person the court may deem

sufficient
Duties of a guardian:
-
Give bond
Render inventory
Faithfully execute duties of trust
Render accounting of estate and interests
Settle debts
Deliver estate, effects, moneys to persons
lawfully entitled thereto
Perform all orders of the court required by
him to be performed
Care and custody of ward, management of
estate, or both
Pay debts of ward out of personal property
or income of real property
Settle all accounts, sue for, receive debts
with court approval
Appear for and represent ward in all actions
and special proceedings
Manage estate of ward without waste,
apply income and profits for best interests
of the ward
If income is insufficient for purposes, sell or
encumber real estate when authorized by
court to do so, apply proceeds for
maintenance of the ward
Requirements for sale or disposition of properties

of the ward:
AM 3-2-5 (minors); Rule 95 (incompetents)
-
Verified petition stating:

o Income of estate sufficient for
maintenance of ward
o For benefit of ward that real estate
be sold and proceeds used
If sale beneficial to ward, court to order
next of kin and other persons to appear and
show cause why prayer should not be
granted
Hearing of proofs and allegations, refuse or
grant prayer
If beneficial to ward, order sale,

proceeds for maintenance of ward
and family
o Specify cause why sale is
beneficial, order estate to be sold
at private or public sale
Original bond to stand as security for
property appropriated with proceeds, but
judge may require additional bond as
condition for granting proceeds of the sale
Court to invest proceeds of sales and
encumbrances
o
Grounds for termination of Guardianship:

(S25- Minors)
-
Ward has come of age,
Ward died
(97 1- Incompetents)
-
Competency
determined
of
ward
is
judicially
Guardianship is no longer necessary
Death of guardian
Death of ward
Grounds for removal/resignation of guardian:

(S24- Minors; (97 2-Incompetents)
-
Guardian becomes insane, or otherwise

incapable of discharging his trust
Guardian becomes unsuitable
Wasted or mismanaged wards properties
Failed to render accounting or make a

return for 30 days when due
In case of children below 7 years old,

custody must be given to the mother except
if the mother is unfit because of immorality
Remedies in case of mismanagement of properties:

(S24- Minor; 97 2- Incompetent)
Who may file petition for custody of minors?
Ask court for removal of guardian
S2, AM 03-04-04-SC
Require guardian to surrender properties of

ward to person lawfully entitled thereto
Any person claiming such right, such as:
Ward can ask for resignation of guardian
CUSTODY OF MINORS IN RELATION TO HABEAS

CORPUS
AM 3-4-4-SC
The remedy of Habeas Corpus is available in issues

regarding as to who between 2 persons (usually,
spouses) is entitled to have custody over a child
-
File habeas corpus in such case
Distinguish this from Rule 102, because in Custody of

Minors in relation to habeas corpus, the issue is
specific, while Habeas Corpus under Rule 102
extends to all cases of illegal confinement
(S13)
1.
2.
Both parents jointly

Either parent, taking into account all
relevant considerations, especially the
choice of the minor over 7 years of age and
of sufficient discernment, unless the parent
chosen is unfit
3.
Grandparent, or if several grandparents,

grandparent chosen by the minor over 7
years of age and of sufficient discernment,
unless the grandparent chosen is unfit or
disqualified
4.
Eldest brother or sister over 21 years of age,

unless he or she is unfit or disqualified
Actual custodian of the minor over 21 years
of age, unless the former is unfit or
disqualified
5.
6.
Any other person or institution the court

may deem suitable to provide proper care
and guidance for the minor
Jurisdiction/Venue: (S3)
Family Court of the place where the minor resides
(NOTE: Can also be filed with MTC, RTC, CA, SC [?])
Mother and grandparents, or husband and wife.

Who has better right to custody of the child?
Grounds for denial of Petition:

-
Existing threat or danger of physical,

mental, sexual, emotional violations
Prejudicial to health, safety, welfare
Petitioner with history of child or spousal

abuse
Habitual alcoholism or drug addiction
Marital misconduct
Unfitness of petitioner
Trust
-
Protection orders:
(S17) requiring any person,
1.
2.
3.
4.
5.
6.
To stay away from home, school, business

or place of employment of the minor, other
parent, or any other party, or from any
other specific place designated by the court
To cease and desist from harassing,
intimidating, or threatening such minor or
the other parent or any person to whom
custody of the minor is awarded
To refrain from acts of commission or
omission that create an unreasonable risk
to the health, safety, or welfare of the
minor
To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods
To permit a designated party to enter the
residence during a specified period of time
in order to take personal belongings not
contested in a proceeding pending with the
Family Court
To comply with such orders as are
necessary for the protection of the minor
(include those provisional remedies under Rules 5761 of the Rules of Court)
(T)
TRUSTEESHIP
(Rule 98)
A confidence imposed in one person, called

the trustee, for the benefit of another,
called the cestui que trust, with respect to
property held by the former for the benefit
of the latter
o Will by trustor- trustee to hold
property for beneficiary
WILLLWT,
written
document
Here, there is trustor, trustee, beneficiary, the

trustee to perform acts in the will of the trustor for
the beneficiary
Jurisdiction/Venue:
(Rule 98 S1)
MTC or RTC depending on the gross value of the
estate of the place where the will is probated, or if a
non-resident, where the estate is found
Elements constituting a Trust:

(De Leon, p. 664)
1.
2.
3.
Competent trustor and trustee

Ascertainable trust res
Sufficiently certain beneficiaries
Requisites for trusteeship:

1.
2.
3.
4.
5.
6.
Trust reposed between trustor and trustee

With sufficiently certain beneficiaries
Trust res / subject matter
Act to be performed by trustee
Beneficiary
Work of trustor creating trusteeship
Illustration: father (trustor) deposits money for son

in bank, bank being the trustee. Bank cannot release
the proceeds to the son (beneficiary) the money
until he turns 20 years old.
EXCEPT:
If adopter is biological
parent of adoptee
If adopter is the spouse of
the adoptive parent
In a position to support and care for his or
her children in keeping with the means of
the family
o
(A)
ADOPTION
(RA 8552- DAA; RA8043- ICAA; AM 2-6-2- Rules on

Adoption)
Adoption
-
A juridical act, proceeding in rem, which

creates between 2 persons a relationship
similar to that which results from legitimate
paternity and filiation
2.
Alien
Possessing the same qualifications as

Filipino nationals
His or her country has diplomatic relations
with the Republic of the Philippines
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
o EXCEPT:
If adopter is former
Filipino citizen seeking to
th
adopt relative within 4
civil
degree
of
consanguinity or affinity
Adopter seeks to adopt LC
of Filipino spouse
Kinds of adoption:
1.
2.
Domestic Adoption (governed by RA 8552)

Inter Country Adoption (governed by RA
8043)
Jurisdiction / Venue
1.
2.
DA- Family court where the adoptive

parents reside
ICA- ICAB or the Family Court where the
minor resides
Who may adopt? Requirements? Who may be

adopted?
DAA
1.
Filipino Citizen
Of legal age
In possession of full civil capacity and legal
rights
Of good moral character
Not convicted of any crime involving moral
turpitude
Emotionally and psychologically capable of
caring for children
At least 16 years older than adoptee
Married to Filipino citizen and seeks to adopt

jointly with his or her spouse a relative within
th
the 4 civil degree of consanguinity or affinit5y
of Filipino spouse
-
Certified by his or her diplomatic or

consular office or any appropriate agency
that he or she has legal capacity to adopt in
his or her country
o EXCEPT:
If adopter is former
Filipino citizen seeking to
th
adopt relative within 4
civil
degree
of
consanguinity or affinity
Adopter seeks to adopt LC
of Filipino spouse
Married to Filipino citizen

and seeks to adopt jointly
with his or her spouse a
th
relative within the 4 civil
degree of consanguinity
or affinit5y of Filipino
spouse
His or her government allows the adoptee
to enter his or her country as his or her
adopted son or daughter
In a position to provide the proper care and

support to give the necessary moral values
and example to all his children including the
child to be adopted
Agrees to uphold basic rights of the child as

embodied under Philippine laws, UN
Convention on the Rights of the Child, and
to abide by the rules and regulations issued
to implement the provisions of this Act
3.
Guardian
With respect to ward after termination of

guardianship and clearance of his or her
financial accountabilities
Comes from a country with whom the

Philippines has diplomatic relations, and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his or her
national laws
Possesses all the qualifications and none of

the disqualifications provided therein and in
other applicable Philippine laws
ICAA
1.
2.
Alien permanently residing abroad

Filipino citizen permanently residing abroad
At least 27 years of age and at least 16

years older than child to be adopted at the
time of the application unless
o Adopter is parent by nature of
child to be adopted
If married, his or her spouse must jointly file

for the adoption
Has capacity to act and assume all rights
and responsibilities of parental authority
under his national laws and has undergone
appropriate counselling from an accredited
counsellor in his or her country
Not convicted of crime involving moral

turpitude
Is eligible to adopt under his or her national

law
Who may be adopted?

DAA
1.
Any person below 18 years of age who has

been administratively and judicially
declared available for adoption
2.
Legitimate son or daughter of one spouse

by the other spouse
3.
Illegitimate son or daughter by a qualified

adopter to improve his or her status to that
of legitimacy
4.
Person of legal age if, prior to the adoption,

said person has consistently been
considered and treated by the adopters as
his or her own child since minority
5.
Child whose adoption has been previously

rescinded
6.
Child whose biological or adoptive parents

died, provided, that no proceedings shall be
initiated within 6 months from time of
death of said parents
period of at least 6 continuous months and

has been judicially declared as such
Neglected Child- iniiwan sa bahay bahay, sa tapat ng

gate (unsure if pertaining to this or to abandoned
child)
ICAA
1.
Only a legally free child
a child whose basic needs have been

deliberately not attended to or inadequately
attended to, physically or emotionally, by
his parents or guardian
Notes:
Correction of simulated birth may be
simultaneously with petition for adoption
filed
Voluntarily committed child

-
a child whose parents knowingly and

willingly relinquish parental authority over
him in favour of the Department
Simulated Birth (note: crime to)

Sa certificate of live birth, inilagay,
hindi ang biological parents
Hence, in correction of simulated birth,
make the corrections
o
Involuntarily committed child- mga asa Boys

Town
-
Same is true with change of name which can also be

filed simultaneously with petition for adoption.
Who are the following?

Abandoned Child
a child whose parents, known or unknown,

have been permanently and judicially
deprived of parental authority over him due
to abandonment; substantial, continuous, or
repeated neglect and abuse; or incompetence
to discharge parental authorities
Dependent Child
-
Neglected Child
Voluntarily Committed Child
one who is without a parent, guardian, or

custodian or one whose parents, guardian, or
other custodian for good cause desires to be
relieved of his care and custody and is
dependent upon the public for support
Involuntarily Committed Child

Dependent Child
Effect of adoption decree:

-
Section 3 of the Rules on Adoption (AM 02-06-02)

provides for the following definitions:
Abandoned Child
-
a child who has no proper parental care or

guardianship or whose parents, guardian, or
whose parents have deserted him for a
Adoptee will use surname of adoptive

parents
Entitle adoptee to successional rights,
equivalent to legitimate child
Grant adoptee rights and privileges of
legitimate child
IF adoption is rescinded (see below), then revert

back to old status before adoption decree
Annexes to petition for ICA:

-
Written and officially translated in English:
1.
Birth certificate of petitioner
2.
Marriage contract, or, if not married

anymore, divorce decree or judgment
dissolving the marriage
3.
Sworn statement of consent of petitioners

biological or adopted children under 10
years of age
NOTE that in adoption: BEST INTERESTS / WELFARE

OF THE CHILD
4.
Petitioner needs to prove he is physically, mentally,

financially capable to adopt
5.
Physical, medical, psychological evaluation

of petitioner duly certified by duly licensed
physician and psychologist
ITR or any document showing current
financial capability of petitioner
Abandoned / Neglected Child

-
Before, file petition for declaration of

abandonment
Ngayon, declaration of abandonment
together with adoption may be filed in one
petition
A person of legal age can be adopted
6.
Police clearance of petitioner issued within

6 months following filing of petition
7.
Character reference from local church /

minister, petitioners employer and a
member of the immediate community who
have known petitioner for at least 5 years
8.
Full body postcard size pictures of

petitioner and his immediate family taken
at least 6 months before the filing of the
petition
In case of adoption of minor,

-
Biological parent to issue affidavit of

consent without which the petition for
adoption shall not be allowed
Can also join in petition for adoption,
petition for change of name designated by
minor, using surname of adoptive parents
state in the petition
Inter Country Adoption

-
Important that there be diplomatic ties

between the 2 countries, or else, petition
cannot be granted
(R)
RESCISSION/REVOCATION OF ADOPTION
ICAB
-
(RA 8552- DAA)

Under the Office of the President / DSWD
o Asa Legarda / Mendiola, Manila
Grounds:
1.
Repeated physical or verbal maltreatment

by adopter despite having undergone
counselling
2.
Attempt on life of adoptee
3.
Sexual assault or violence on the adoptee
4.
Abandonment or failure to comply with

parental obligations
What then can be the remedy of adoptive parents?

Disinherit the adoptee
(H)
Jurisdiction / Venue:
HOSPITALIZATION OF INSANE PERSONS
Family Court which rendered decree of adoption
(Rule 101)
Who may file? (ONLY the ADOPTEE)
-
Adoptee above 18 y o
If a minor, with DSWD assistance
If higher than 18, but incapacitated, assisted
by guardian or counsel
(pag nakakita kayo ng tumatawa mag isa at walang

dahilan, alam nyo na ang gagawin)
Jurisdiction / venue:
RTC of the place where the insane may be found
When filed?
Within 5 years after reaching age of majority or if
incapacitated at the time of adoption, within 5 years
after recovering from the incompetency
Effects of Rescission or Revocation of Adoption:

1.
2.
3.
4.
Reinstate former name or surname

Reinstate former succession rights
All rights and privileges granted by adoption
will be removed
Paternity and filiation relationship created
between adopter and adoptee shall likewise
be removed
Can adoptive parents file for rescission of

adoption?
NO! Because adoption is for the best interests of the
adoptee
Who may file?

Regional Director of DOH
Hospitalization of
Insane Persons
Governed by Rule 101
Special proceeding
File a petition
Filed
by
Regional
Director of DOH
Physical and Mental

examination of persons
Governed by Rule 28
Mode of discovery
File a motion
Any party may avail of
In hospitalization of insane, walang issue, sira ulo

lang talaga; sa PME, issue is such PME
Insane Person
-
A person whose condition of the mind is so

impaired in function or so deranged as to
induce a deviation from normal conduct of

the person so afflicted
Effect of granting petition:

R101 S3
Upon satisfactory proof, in open court on the date
fixed in the order, that the commitment applied for
is for the public welfare or for the welfare of the
insane person, and that his relatives are unable for
any reason to take proper custody and care for him,
-
The court shall order his commitment to

such hospital or other place for the insane
as may be recommended by the Director of
Health
The court shall make proper provisions for
the custody of property or money belonging
to the insane until a guardian be properly
appointed
Adverse decision, remedy:

-
Record of appeal within 30 days from notice

of judgment or final order
CONSTITUTIONAL BASIS:
A8 S5 P5
The Supreme Court shall promulgate rules
concerning the protection and enforcement of
constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice
of law, the IBP, and legal assistance to the
underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of
special courts and quasi judicial bodies shall remain
effective unless disapproved by the Supreme Court.
A3 S15
The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or rebellion
or when public safety requires it.
A7 S18 P3
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
within 30 days from its filing.
(H)
HABEAS CORPUS
(Rule 102)
+
Habeas Corpus/Writ of Habeas Corpus:

Habeas Corpus
-
WRIT OF AMPARO
is a Latin phrase which literally means, you

have the body (Festin, Special Proceedings,
p. 146)
(AM 7-9-12-SC)
+
What is WRIT OF HABEAS CORPUS?

-
WRIT OF HABEAS DATA

(AM 8-1-16-SC)
Bouviers Law Dictionary defined it as a

writ directed to the person detaining another
and commanding him to produce the body
of the prisoner at a certain time and place,
with the day and cause of his caption and
detention, to do, submit to, and receive

whatsoever the court or judge awarding the
writ shall consider in that behalf. (Beda
Memory Aid in Remedial Law, p. 172)
JURISDICTION/VENUE of HABEAS CORPUS:

-
RTC of the place where the detained is

committed
*MTC (see above venue) in the event of
absence of all RTC Judges in the place, or if
there is no RTC in that place
o In the above 2, enforceable only
within their respective territorial
jurisdictions
o Returnable in RTC
CA
Supreme Court
o In the higher 2 courts, enforceable
throughout the Phils
o Returnable in CA, SC, any justice or
in RTC
Sandiganbayan
o Person detaining is a public official
When can the writ of habeas corpus not be issued?

1.
When detained under lawful cause
2.
In case of invasion or rebellion or when

public safety requires it, under A3 S15 of
1987 Constitution
3.
When in case of invasion or rebellion, when

public safety requires it, for a period not
exceeding 60 days, under A7 S18, 1987
Constitution
4.
If jurisdiction of the court to try the person

detained appears after the writ is allowed
5.
If the person is in custody of an officer

under process issued by a court or by virtue
of a judgment or order of a court of record
which has jurisdiction to issue the process,
render the judgment, or make the order
6.
If the person is charged or convicted of an

offense in the Philippines
7.
If the person is suffering imprisonment

under lawful judgment
8.
In case of 3 day detention of a suspect for 3

days without charge, pursuant to S18 of
RA93712 aka Human Security Act
9.
When person is serving final sentence

imposed by court
Note the distinctions between the HC, Amparo,

Data! (2009 Bar)
(SEE ATTACMENTS)
Writ of Habeas Corpus, under Rule 102, applies to

all kinds of illegal restraint (ACTUAL RESTRAINT)
1.
2.
3.
Illegal detention (detention without cause)

Detention under invalid law
Service of sentence in excess of what the
law imposes
(Differentiate from AM 3-4-4)
Note that writ of Habeas Corpus is a kind of

amparoamparo libertad
-
Because it is for the protection of personal

freedom / constitutional right against illegal
confinement
Amparo / Writ of Amparo (as differentiated from

writ of Habeas Corpus as amparo)
-
The constitutional remedy in case of

violation or attempted violation to right to
life, liberty, security, committed by public
official or employee, or a private individual
or entity
Habeas Data
-
Constitutional remedy against violation of

right to life, liberty, or property of a person,
committed by person or government official
tasked with collection of information or
data
Remedy in case of adverse decision in Habeas

Corpus
Appeal within 48 HOURS!!!
Note that regarding this matter, originally, the Rules
of Court says nothing. In the subsequent case of Hui
vs Rodriguez, the period became 15 days from notice
of judgment. But in a SC resolution dated January
21, 2001, Rule 41 S3 was amended, and the 48 hour
period was stated.
NOTE: Even if there is defect in form and substance
in petition for habeas corpus, OK LANG... because
life, liberty is at stake
Remedy in case of adverse decision in writ of

amparo / writ of habeas data
Petition for review under Rule 45 raising questions
of fact or questions of law, within 5 working days
Amparo for the protection of personal

freedoms, equivalent to the writ of habeas
corpus
2.
Amparo Contra Leyes / Constitutionality

Amparo
Amparo for the judicial

constitutionality of statutes
3.
Amparo Casacion / Judicial Amparo
Amparo for the judicial review of the

constitutionality of a judicial decisions made
by courts
4.
Amparo administrativo / Administrative

Amparo
Amparo for the judicial review

administrative
decisions
made
administrative bodies
5.
Amparo Agrario / Agrarian Amparo
Amparo for the protection of peasants

rights derived from the agrarian reform laws
/ processes
review
of
of
by
Origin of amparo: Yucatan, Mexico, 1941 (to

protect as stated in the Mexican Constitution)
Mexico, 1941
Stated in the Mexican Constitution, which means to
protect
Petition for writ of amparo:

Requirements:
S5- Contents of the petition
What are the kinds of amparo?

1.
Amparo Libertad / Liberty Amparo
The petition shall be signed and verified and shall

allege the following:
a.
The personal circumstances of petitioner
b.
Name and personal circumstances of the

respondent responsible for the threat, act,
or omission, or,
a.
c.
if the name is unknown or

uncertain,
i. the respondent may be
described by an assumed
appellation
The right to
a. life,
b. liberty,
c. and security
i. of an aggrieved party
violated or threatened
with violation by
1. an unlawful act
or omission of
the respondent,
and
how such threat or violation is committed with the

attendant circumstances detailed in supporting
affidavits
d.
e.
f.
The investigation conducted, if any,

a. specifying the
i. names,
ii. personal circumstances,
and
iii. addresses
of
the
investigating authority or
individuals, as well as
iv. the manner and conduct
of
the
investigation,
together with any report
The actions and recourses taken by the
petitioner
a. to determine the fate or
whereabouts of the aggrieved
party and
b. the identity of the person
responsible for the threat, act, or
omission, and
The relief prayed for
The petition may include a general prayer for just

and equitable reliefs.
Habeas data
-
Information or data written, tends to

threaten violation of constitutional right to
life, liberty or property, and may be ordered
destroyed by the court
Protection orders / interim reliefs in writ of

amparo:
1.
Temporary Protection order
2.
Inspection order (to inspect premises

relative to extrajudicial killings and enforced
disappearances )
3.
Production order (to produce documents

related to extrajudicial killing and enforced
disappearance)
4.
Witness protection order
Writ of amparo is not a substitute for lost appeal or

certiorari
-
Dapat, there is violation or threat of

violation to life, liberty, security, as was
ruled in Masangkay vs AFP Chief of Staff
A group of squatters live in land occupied by X. X

filed ejectment suit against them for illegal
possession of property. The decision became final
and executory. X applied for writ of demolition
from the court, which was granted. The squatters
filed writ of amparo, alleging threatened violation
of their right to security. Are they correct?
NO!!! As was ruled in Masangkay vs AFP Chief of

Staff, writ of amparo is not a substitute for lost
appeal or certiorari. Hence, the squatters should
have filed appeal of adverse decision with the proper
court.
Peremptory writ of
habeas corpus / writ of
habeas corpus
Writ addressed to a
person in custody or
detaining another to
produce the body of the
prisoner at a certain time
and place designated
therein
Preliminary citation
If the clerk of court did not immediately issue writ of

amparo, pwede siya ma-contempt
Prohibited Pleadings under Writ of Amparo/Habeas

Data:
(S11- Amparo; S13- Data)
The following pleadings and motions are prohibited:
Order of court directing

person in custody of
another to show cause
why the writ of habeas
corpus should not issue
a.
Motion to dismiss
b.
Motion for extension of time to file

return,
opposition,
affidavit,
position
paper,
and
other
pleadings
c.
Dilatory motion for postponement
d.
Motion for a bill of particulars
e.
Counterclaim or cross claim
f.
Third party complaint
g.
Reply
h.
Motion to declare respondent in

default
i.
Intervention
j.
Memorandum
k.
Motion for reconsideration of

interlocutory orders or interim
relief orders and
l.
Petition for certiorari, mandamus,

or
prohibition
against
any
interlocutory order
Here, the arrest is not

illegal
Here, the arrest is (may

be) illegal (most likely)
Preliminary Citation
-
a citation issued by the court to the

government officer having the person in his
custody to show cause why the writ of
habeas corpus should not issue
o The issuance of preliminary
citation arises in instances when the
said person is detained under
governmental authority and the
illegality of his detention is not
patent from the petition for the
writ.
Further notes:
Pag hindi pwede ang writ of habeas corpus, go with
amparo
If there is a pending criminal case, you can file
amparo with the same criminal case
72-hour rule (NOTE)
If not extrajudicial, not enforced disappearance, will
amparo apply? (MAY RECENT CASE DITO)
(FOR
FURTHER
attachments/tables)
DISTINCTIONS,
see
6.
(C)
When surname causes embarrassment, and

there is no showing that the desired change
of name is for fraudulent purpose or would
prejudice public interest
Note that the Change of Name should not be for the

purpose of circumventing liability.
CHANGE OF NAME (Rule 103)

+
(C)
Change of Name
Rule 103
Correction of Entry
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES IN THE

CIVIL REGISTRY (Rule 108)
+
CLERICAL ERROR ACT (RA 9048)
(For further distinctions, see attachment)
Note that under Rule 108, what is sought to be

corrected in the Civil Registry is not the name,
except that if what is sought to be corrected is first
name or nickname, the governing rule is the Clerical
Error Act or RA9048, by filing affidavit with the Civil
Registry where registered, and if residing abroad,
before the nearest Philippine consulate.
Rule 103
Change of Name
-
Filed with RTC where petitioner resides
Grounds:
1.
Name is ridiculous, tainted with dishonour,

extremely difficult to write or pronounce
2.
Consequence of change of status, such as in

legitimation or adoption (or revocation of
adoption to revert back to original name)
3.
Having continuously used and been known

since childhood by a Filipino name, unaware
of alien parentage
4.
Sincere desire to adopt a Filipino name to

erase signs of former parentage, all in good
faith and without prejudicing anybody
5.
Necessity to avoid confusion
Judicial
RA 9048
administrative
Rule 108
Substantial changes for
correction of entries in
the Civil Register
RA 9048
Clerical errors in entry,
plus change of first name
or nickname
Rule 108 was applied in the case of RP vs

Cagandahan and Silverio vs Republic
In Silverio vs Republic, Rommel had sex change due

to sex change / operation, he sought to change
name from Rommel to a female name, and wanted
sex reassignment from male to female, so he filed
for change of name under RA 9048 and correction of
entries in the civil register. (BAWAL under RA9048)
-
The SC denied it
o Sex reassignment- bawal
No law allows it
st
Change of 1 name not
falling under the grounds
in RA 9048
However, in the Cagandahan case, Jennifer

Cagandahan had 2 sex organs, male and female,
even hormones niya dalawa. So, she sought change
of name from Jennifer to Jeff and her sex from
female to male.
-
The SC allowed it
By nature, she had 2 sexes, both male and
female,
o Hence, she should not be deprived
of right to choose whether to be a
man or a woman, because it was
there by nature
Change of name from Jennifer to Jeff- governed by

RA9048
13. judicial determination of filiation

14. voluntary emancipation of minor
st
15. change of name (1 name / nickname under
RA9048)
These are substantial entries, which can be changed
upon good and valid grounds by way of petition.
Jurisdiction / Venue: RTC where Civil Register is
Located (Rule 108)
NOTE:
Principle of Sexual Reassignment (Silverio Case)
Principle of Intersex (Cagandahan Case)
Change of sex from female to male- governed by

R108
However, even with RA 9048, the court is not
divested with right to entertain petition for
correction of entries with respect to substantial
corrections
Grounds for correction of entries under R108:

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Births
Marriages
Deaths
Legal separations
Judgment of annulment of marriage
Judgment declaring marriage void ab initio
Legitimations
Adoptions
Acknowledgment of natural children
Naturalization
Election, loss, recovery of citizenship
civil interdiction
(SEE ATTACHMENT FOR FURTHER DISTINCTIONS on

103, 108, 9048)
(V)
VOLUNTARY DISSOLUTION OF CORPORATIONS
(Now governed by CORPORATION CODE, S118-119,
BP68)
The provisions of the Rules of Court regarding this is

repealed by the provisions of the Corporation Code
Contemplates different modes in different
situations: With Creditors OR Without Creditors
Modes:
1.
-
Derivative suit
Suit filed by minority stockholders for and in
behalf of the corporation
2.
Shortening lifetime of the corporation by

amendment of the Articles of Incorporation
3.
Quo Warranto
4.
Dissolution of de facto corporation not

registered with SEC- (administrative)
(J)
JUDICIAL DECLARATION OF MINOR NATURAL
CHILDREN
(NOW governed by FAMILY CODE)
This provision no longer applies now, because of the

Family Code providing that there are only 3 kinds of
children:
o
o
o
Legitimate children
Illegitimate children
Legitimated children
Legitimate
and
legitimated
children,
under rules of succession,
are
entitled
to
successional rights, being
st
the 1 in priority
Illegitimate children are
entitled to of that to be
inherited by legitimate
children and legitimated
children
Legitimated- parents are not married, without legal

impediment, if they become married, you become
legitimated
Provided, after August 3, 1988 (effectivity of the
Family Code)
revert back to owner of

the Family Home
(C)
CONSTITUTION OF THE FAMILY HOME
(post-Aug 3, 1988- FAMILY CODE; before, Rule 106)
Instances when is Family Home not exempt from

execution, forced sale, attachment:
1.
Non-payment of taxes
2.
Debts incurred prior to the constitution of

the Family Home
3.
For debts incurred by mortgages on the

premises, before or after such constitution
4.
For debts due to labourers, mechanics,

architects, builders, materialsmen, and
others who have rendered service or
furnished material for the construction of
the building
FAMILY HOME
-
Actual residence of spouses or head of the

family and their beneficiaries
There is no need to constitute Family Home judicially

-
The Family Code states that a Family Home

is constituted automatically once they
reside there, provided,
o That the question given in the facts
of the case does not provide for
constitution prior to August 3,
1988 (effectivity of Family Code)
If so, then there is a need
to constitute it judicially
But beyond August 3,
1988, deemed constituted
from the time it is
occupied
as
family
residence
Why the need to constitute?

-
Because a Family Home is exempted from

execution, forced sale, attachment, up to
extent of 1M pesos
o Example: Family Home is worth
10M
Hence, exempted from
forced, sale, attachment is
1M
9M less obligations and
reimbursements,
will
Can the family home be subject to partition?

As long as there is minor beneificiary residing in the
Family Home after the death of the spouses, the
family home cannot be subject to partition
A152 of the Family Code provides that a Family

Home, constituted jointly by the husband and the
wife or an unmarried head of a family, is the
dwelling house where they and their family reside,
and the land on which it is situated.
What is Actual Residence?

It is defined in the case of Garcia vs Fule as the
personal, actual, physical habitation of a person,
actual residence or place of abode.
Who are the beneficiaries of a Family Home?
A154 of the Family Code provides that the following

are the beneficiaries of a family home:
1.
2.
3.
The husband and wife

The unmarried person who is the head of a
family
#1 and #2s:
a. Parents
b. Ascendants
c. Descendants
d. Brothers
e. Sisters
i. Whether the relationship
be
legitimate
or
illegitimate
ii. Living upon the Family
Home
iii. Depend upon the head of
the family for legal
support
Can a Family Home be subject of partition?
It depends on when the constitution of the Family

Home will take or took place.
If the constitution took place prior to August 3, 1988,
which is the effectivity of the Family Code, then
there is a need to constitute a family home judicially
or extrajudicially as provided for in S1 R106.
However, if the constitution took place after the
effectivity of the Family Code, then there is no need
to constitute the same judicially or extrajudicially,
because A153 of the Family Code provides that a
family home is deemed constituted on a house and
lot from the time it is occupied as a family residence
from the time of its constitution and so long as any
of its beneficiaries actually resides therein.
(D)
DECLARATION OF ABSENCE and PRESUMPTIVE
DEATH
Basis:
(Rule 107, provisions of NCC)
A159, Family Code

The Family Home shall continue despite the death of
one or both spouses or of the unmarried head of the
family for a period of 10 years or for as long as there
is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever
owns the property or constituted the family home.
HENCE, it can be the subject of partition, IF, upon

the death of one or both spouses or of the
unmarried head of the family, and
-
the 10 year period for the continuation of

the family home lapsed
or, the minor beneficiary has already come
of age
or, there are no more debts left
Is there a need to file a petition for declaration of

Family Home?
Declaration of Absence and Death

2 years / 5 years
Note that what is contemplated is actual, absolute

whereabouts is unknown!
-
Yung naglahong parang bula, hindi yung

sumakabilang bahay
Declaration of presumptive death for purposes of

remarriage is a special proceeding
Jurisdiction / Venue: RTC of last residence of person
presumed dead, without prejudice to reappearance
of the absent spouse
The reappearing spouse must file an

affidavit of reappearance before the court
granting the declaration of presumptive
death
o EFFECTS:
nd
2
marriage to be
declared void
nd
Children of 2 marriage
however would remain to
be legitimate
When? Who may petition?

Jurisdiction? Venue?
or of 5 years in case the absentee has left a

person in charge of the administration of
his property,
o the declaration of his absence and
appointment of a trustee or
administrator may be applied for
by any of the following:
a.
The spouse present
b.
The heirs instituted in a will, who may

present an authentic copy of the same
c.
The relatives who would succeed by the law

of intestacy
d.
Those who have over the property of the

absentee some right subordinated to the
condition of his death
What to petition?
S1 R107 provides that when

1.
2.
3.
4.
a person disappears from his domicile

his whereabouts being unknown
and without having left an agent to
administer his property or
the power conferred upon the agent has
expired
An:
1.
2.
3.
The petition for the

-
appointment of a representative, or for

the declaration of absence and the
appointment of a trustee or an
administrator,
o must show the following:
a.
The jurisdictional facts
interested party
relative
friend
May petition for the appointment of a person to

represent him provisionally in all that may be
necessary
The petition is to be filed in:
RTC of the place where the deceased last resided
before his disappearance
What are the requirements?

S2- Declaration of absence; who may petition
After
-
S3- Contents of petition
the lapse of 2 years from his disappearance

and
o without any news about the
absentee or since the receipt of
the last news,
Period for service of copies of the notice of the time

and place fixed for the hearing (R107 S4):
b.
The
a.
b.
c.
names,
ages,
and residences
i. of the heirs instituted in
the will,
ii. copy of which shall be
presented, and
iii. of relatives who would
succeed by the law of
intestacy
c.
The names and residences of creditors and

others who may have adverse interest over
the property of the absentee
d.
The probable value, location, and character

of the property belonging to the absentee
At least 10 days before the day of the hearing, and

published once a week for 3 consecutive weeks prior
to the time designated for the hearing, in a
newspaper of general circulation in the province or
city where the absentee resides, as the court shall
deem best.
Period when declaration of absence takes effect

(107 S6):
6 months after its publication in a newspaper of
general circulation designated by the Court and in
the Official Gazette.
Remedy of a person declared absent upon

reappearance:
1.
2.
What is the purpose for declaration of absence?

1.
2.
For proper representation of the absentee

in all his obligations
For administration of his property in his
absence
Effect of reappearance of absent spouse:

1.
2.
What is the period?

Period to petition for declaration of absence (R107
S2):
After:
1.
2.
Lapse of 2 years from his disappearance and

without any news about the absentee or
since the receipt of the last news, or
Of 5 years in case the absentee has left a
person in charge of the administration of
the property
Open up a trust on property held by third

persons
As to status, file an affidavit of
reappearance before the RTC having
jurisdiction over the petition for declaration
of absence
3.
Administration of his property by the

appointed administrator in case of his
absence shall cease (R107 S8)
The property shall be placed at the disposal
of those who may have a right thereto
(R107 S8)
As to the marriage, the subsequent
marriage of the present spouse shall be
declared void, without prejudice to the
status of the children under the subsequent
marriage to remain as legitimate, because
of having considered as conceived within a
valid marriage.
a. A petition for declaration of nullity
of marriage on this ground has to
be filed to that effect (?)
As to the property,
1.
2.
Administration of his property by the

appointed administrator in case of his
absence shall cease (R107 S8)
The property shall be placed at the disposal
of those who may have a right thereto
(R107 S8)
What is the nature of a petition for declaration of

presumptive death?
IN REM
-
an action against a thing and not against a

person, where a decision made shall be
binding not only to the parties thereto but
against the whole world
o Because:
with
publication
requirement
o Affects property rights, relations,
status of persons
Do you consider declaration of presumptive death

as a special proceeding?
YES!!!!! R72 S1 provides that a special proceeding is
a remedy by which a party seeks to establish a
status, a right, or a particular fact. Even though Rule
72 S2 provides for enumerations of special
proceedings, such enumeration is not exclusive.
Hence, because declaration of presumptive death is
a remedy by which a party seeks to establish the
particular fact of presumptive death, then it is a
special proceeding even if not within the
enumeration under S2 R72.
What are those subject of appeal?

R109 S1
S1- ORDERS OR JUDGMENTS FROM WHICH APPEALS
MAY BE TAKEN
An interested person may appeal in special
proceedings from an order or judgment rendered by
a RTC or MTC, where such order or judgment:
a.
allows or disallows a will
b.
determines who are the lawful heirs of a

deceased person, or the distributive share
of the estate to which such person is
entitled
c.
allows or disallows, in whole or in part, any

claim against the estate of a deceased
person, or any claim presented in behalf of
the estate to offset to a claim against it
d.
settles the account of an executor,

administrator, trustee, or guardian
e.
constitutes, in the proceedings relating to

the settlement of the estate of a deceased
person, or the administration of a trustee or
guardian, a final determination in the lower
court of the rights of the party appealing,
except that no appeal shall be allowed from
the appointment of a special administrator,
and
f.
is the final order or judgment rendered in

the case, and affects the substantial rights
of the person appealing, unless it be an
order granting or denying a motion for new
trial or for reconsideration
APPEALS IN SPECIAL PROCEEDINGS

(RULE 109)
30 day record on appeal (Rule 40-41)
Except:
Habeas Corpus Cases
-
48 hours
As amended by resolution of SC
DECLARATION OF NULLITY OF MARRIAGE,

ANNULMENT OF MARRIAGE, LEGAL SEPARATION
PROVISIONAL ORDERS:
-
Spousal support
Custody and support of common children
Visitation rights
Administration of ACP/CPG
If under A36, specifically allege psychological

incapacity in the body of the petition
Other matters similar requiring urgent

action
Prejudicial Question?
Hold departure order
(AM
Nullity of Marriage- void ab initio including

psychological
incapacity,
incurable,
with
psychological report)
DEPENDS.
Dapat, nullity first before criminal case
Civil and Criminal action
DEPENDENT PERSONALITY DISORDER:
*File together with support order, if respondent,

comment on provisional order for support
BOTH may claim psychological incapacity (RP vs
Molina), even incapacitated spouse
Not necessarily appearing during celebration of
marriage, but appearing after
(Ascueta vs Republic; Teh vs Teh)

-
disorder of a person who cannot make

decisions on his own with regard to the
marriage (dependent upon
outside
interference)
o (REMEMBER: mga mamas boys)
SALIENT PROVISIONS:
S2- Petition for declaration of absolute nullity of
void marriages
a.
PRINCIPLE OF ANTI SOCIAL DISORDER:

-
(di ko sure pano i define, basta yung asa

sulok at ayaw makakita ng tao)
WHO MAY FILE
A petition for declaration of absolute nullity of void

marriage may be filed
-
solely by the husband and wife
b.
WHERE TO FILE
The petition shall be filed

-
in the Family Court
c.
IMPRESCRIPTIBILITY
DEFENSE
OF
ACTION
OR
An action or defense for the declaration of absolute

nullity of void marriage
-
shall not prescribe.
d.
WHAT TO ALLEGE
A petition under A36 of the Family Code shall

-
specially allege the complete facts showing

that
o either or both parties were
psychologically incapacitated from
complying with the essential
marital obligations of marriages at
the time of the celebration of the
marriage
even if such incapacity
becomes manifest only
after its celebration.
The complete facts

-
should allege the physical manifestations, if

any,
o as are indicative of psychological
incapacity at the time of the
celebration of the marriage
but expert opinion need
not be alleged.
or the parent, guardian, or person having legal

charge of the contracting party,
-
at any time before such party has reached

the age of 21
2.
The sane spouse

a. who had no knowledge of the
others insanity;
or by any relative, guardian, or person

-
or by the insane spouse

-
during a lucid interval or

after regaining sanity
o provided that the petitioner, after
coming to reason,
has not freely cohabited
with the other as husband
or wife
3.
The injured party

a. whose consent was obtained by
fraud,
i. within 5 years after the
discovery of the fraud,
S3- Petition for annulment of voidable marriages

a.
WHO MAY FILE
The following persons may file a petition for

annulment of voidable marriage based on any of the
grounds under A45 of the Family Code and within
the period herein indicated:
1.
provided that said party, with full knowledge of the

facts constituting the fraud,
-
has not freely cohabited with the other as

husband and wife
4.
The injured party whose consent was

obtained by force, intimidation, or undue
influence,
a. within 5 years from the time the
force, intimidation, or undue
influence disappeared or ceased,
b. provided
that
the
force,
intimidation, or undue influence
having disappeared or ceased,
i. said party has not
thereafter
freely
cohabited with the other
as husband and wife
5.
The injured party
The contracting party

a. whose parent, or guardian, or
person
exercising
substitute
parental authority
i. did not give his or her
consent within 5 years
after attaining the age of
21
unless after attaining the age of 21,

-
such party freely cohabited with the other

as husband and wife;
having legal charge of the insane,

at any time before the death of either
party;
a.
b.
6.
b.
where the other spouse is

physically
incapable
of
consummating the marriage with
the other and
such incapability continues and
appears to be incurable,
celebration
of
the
marriage, and
The injured party

a. where the other party was afflicted
with a STD found to be serious and
appears to be incurable,
celebration
of
the
marriage
S4- Venue
The petition shall be filed in the Family Court of the
province or city
c.
where the petitioner or the respondent has

been residing for at least 6 months prior to
the date of filing,
or in the case of a non resident respondent,
o where he may be found in the
Philippines
at the election of the
petitioner.
apply for a provisional order for

o spousal support,
o the custody and support of
common children,
o visitation rights,
o administration of community or
conjugal property, and
o other matters similarly requiring
urgent action.
3.
It must be verified and accompanied by a

certification against forum shopping. The
verification and certification
a. must be signed personally by the
petitioner.
No petition may be filed solely by counsel or through

an atty-in-fact
If the petitioner is in a foreign country, the
verification and certification against forum shopping
-
shall be authenticated by the duly

authorized officer of the Philippine embassy
or legation, consul general, consul or vice
consul or consular agent in said country.
4.
It shall be filed in 6 copies.
The petitioner shall serve a copy of the petition on

-
Requirements of the petition?

S5- Contents and form of petition
1.
The petition shall

a. allege
the
complete
facts
constituting the cause of action
2.
It shall
a. state the names and ages of the
common children of the parties
and
specify the regime governing their

property relations,
as well as the properties involved
If there is no adequate provision in a written

agreement between the parties, the petitioner may
WHERE TO FILE
The petition shall be filed with the Family Court
b.
the Office of the Solicitor General and

the Office of the Provincial or City
Prosecutor,
o within 5 days from the date of its
filing and
o submit to the court proof of such
service within the same period.
Failure to comply with any of the preceding

requirements
-
may be a ground for immediate dismissal of

the petition.
What are the prohibited compromises?
b.
S16- Prohibited Compromise

The court shall not allow compromise on prohibited
matters, such as the following:
a.
Civil status of persons
b.
Validity of a marriage or of a legal

separation
c.
Any ground for legal separation
d.
Future support
e.
Jurisdiction of courts
f.
Future legitime
If the respondent has filed his answer but

fails to appear,
a. the court shall proceed with the
pre trial and
b. require the public prosecutor to
investigate the non appearance of
the respondent and
c. submit within 15 days thereafter a
report to the court stating whether
his non appearance is due to any
collusion between the parties.
If there is no collusion,
-
the court shall require the public prosecutor

o to intervene for the state during
the trial on the merits
to prevent suppression or
fabrication of evidence
Can you file motion to dismiss?
Service of Summons, Rules:
S7- Motion to Dismiss
S6- Summons
No motion to dismiss the petition shall be allowed
The service of summons shall be governed by Rule

14 of the Rules of Court and by the following rules:
except on the ground of lack of jurisdiction

o over the subject matter or
o over the parties.
Provided, however, that any other ground

-
1.
When the respondent
cannot be located at his given address or

his whereabouts are unknown and cannot
be ascertained by diligent inquiry,
o service of summons may, by leave
of court,
be effected upon him by
publication once a week
for 2 consecutive weeks in
a newspaper of general
circulation
in
the
Philippines and in such
places as the court may
order.
that might warrant a dismissal of the case

o may be raised as an affirmative
defense in an answer.
What is the effect of failure to appear at the pre

trial?
S13- Effect of failure to appear at the pre trial
a.
If the petitioner fails to appear personally,

a. the case shall be dismissed, unless
i. his counsel or a duly
authorized representative
appears in court
ii. and proves a valid excuse
for the non appearance of
the petitioner
In addition, a copy of the summons

-
shall be served on the respondent at his last

known address by registered mail or
o any other means the court may
deem sufficient.
2.
The summons to be published shall be

contained in an order of the court with the
following data:
a.
Title of the case
b.
Docket number
c.
Nature of the petition
d.
Principal grounds for the petition

and the reliefs prayed for
e.
A directive for the respondent to

answer within 30 days from the
last issue of publication
The appellant shall serve a copy of the notice of

appeal on the adverse parties.
BASIS: Fresh period rule as provided in Neypes vs CA
Provisional Orders:
Provisional orders which can be applied (S5 AM 0211-10-SC):
S8- Answer
1.
within 15 days from notice of the

denial of the motion for
reconsideration or new trial.
The respondent shall file his answer

a. within 15 days from service of
summons,
b. or within 30 days from last issue of
publication in case of service of
summons by publication.
The answer must be verified by the respondent

himself and not by counsel or attorney in fact.
spousal support,
the custody and

common children,
visitation rights,
administration of community or
conjugal property, and
other matters similarly requiring

urgent action
support
of
What else?
Remedies in case of adverse decision:
S20- Appeal
1.
Rule on Provisional Orders, AM 02-11-12-SC

S6- Hold Departure Order
PRE CONDITION
No appeal from the decision shall be allowed

-
unless the appellant has filed a motion for

reconsideration or new trial
o within 15 days from notice of
judgment.
2.
NOTICE OF APPEAL
An aggrieved party or the Solicitor General

-
may appeal from the decision by filing a

Notice of Appeal
PROTECTION ORDERS
AM 02-11-12-SC Rule on Provisional Orders in
relation to RA 9262 or the Violence against Women
and Children Act
Who may issue? What are those provisional orders?

(RA 9262)
SEC. 14. Barangay Protection Orders (BPOs); Who
May Issue and How. - Barangay Protection Orders
(BPOs) refer to the protection order issued by the

Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of
this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex
parte determination of the basis of the application. If
the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted
upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad the order must be
accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable
at the time for the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after
the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally
serve a copy of the same on the respondent, or
direct any barangay official to effect is personal
service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.
SEC. 15. Temporary Protection Orders. Temporary
Protection Orders (TPOs) refers to the protection
order issued by the court on the date of filing of the
application after ex parte determination that such
order should be issued. A court may grant in a TPO
any, some or all of the reliefs mentioned in this Act
and shall be effective for thirty (30) days. The court
shall schedule a hearing on the issuance of a PPO
prior to or on the date of the expiration of the TPO.
The court shall order the immediate personal service
of the TPO on the respondent by the court sheriff
who may obtain the assistance of law enforcement
agents for the service. The TPO shall include notice
of the date of the hearing on the merits of the
issuance of a PPO.
SEC. 16. Permanent Protection Orders. Permanent
Protection Order (PPO) refers to protection order
issued by the court after notice and hearing.
Respondents non-appearance despite proper notice,
or his lack of a lawyer, or the non-availability of his
lawyer shall not be a ground for rescheduling or
postponing the hearing on the merits of the issuance
of a PPO. If the respondents appears without counsel
on the date of the hearing on the PPO, the court shall
appoint a lawyer for the respondent and
immediately proceed with the hearing. In case the

respondent fails to appear despite proper notice, the
court shall allow ex parte presentation of the
evidence by the applicant and render judgment on
the basis of the evidence presented. The court shall
allow the introduction of any history of abusive
conduct of a respondent even if the same was not
directed against the applicant or the person for
whom the applicant is made.
The court shall, to the extent possible, conduct the
hearing on the merits of the issuance of a PPO in one
(1) day. Where the court is unable to conduct the
hearing within one (1) day and the TPO issued is due
to expire, the court shall continuously extend or
renew the TPO for a period of thirty (30) days at
each particular time until final judgment is issued.
The extended or renewed TPO may be modified
by the court as may be necessary or applicable to
address the needs of the applicant.
The court may grant any, some or all of the reliefs
specified in Section 8 hereof in a PPO. A PPO shall be
effective until revoked by a court upon application of
the person in whose favor the order was issued. The
court shall ensure immediate personal service of the
PPO on respondent.
The court shall not deny the issuance of protection
order on the basis of the lapse of time between the
act of violence and the filing of the application.
Regardless of the conviction or acquittal of the
respondent, the Court must determine whether or
not the PPO shall become final. Even in a dismissal, a
PPO shall be granted as long as there is no clear
showing that the act from which the order might
arise did not exist.
SEC. 10. Where to Apply for a Protection Order.
Applications for BPOs shall follow the rules on venue
under Section 409 of the Local Government Code of
1991 and its implementing rules and regulations. An
application for a TPO or PPO may be filed in the
regional trial court, metropolitan trial court,
municipal trial court, municipal circuit trial court
with territorial jurisdiction over the place of
residence of the petitioner: Provided, however, That
if a family court exists in the place of residence of
the petitioner, the application shall be filed with that

court.
An application for protection order filed with a court

shall be considered an application for both a TPO
and PPO.
How applied?
SEC. 11. How to Apply for a Protection Order. The
application for a protection order must be in writing,
signed and verified under oath by the applicant. It
may be filed as an independent action or as
incidental relief in any civil or criminal case the
subject matter or issues thereof partakes of a
violence as described in this Act. A standard
protection order application form, written in English
with translation to the major local languages, shall
be made available to facilitate applications for
protections order, and shall contain, among other,
the following information:
a.
b.
c.
d.
e.
f.
g.
names and addresses of petitioner

and respondent;
description of relationships
between petitioner and
respondent;
a statement of the circumstances
of the abuse;
description of the reliefs requested
by petitioner as specified in
Section 8 herein;
request for counsel and reasons
for such;
request for waiver of application
fees until hearing; and
an attestation that there is no
pending application for a
protection order in another court.
Barangay officials and court personnel shall assist

applicants in the preparation of the application. Law
enforcement agents shall also extend assistance in
the application for protection orders in cases
brought to their attention.
Acts covered by protection orders:

(RA 9262)
SEC. 8. Protection Orders.- A protection order is an
order issued under this act for the purpose of
preventing further acts of violence against a woman
or her child specified in Section 5 of this Act and
granting other necessary relief. The relief granted
under a protection order serve the purpose of
safeguarding the victim from further harm,
minimizing any disruption in the victims daily life,
and facilitating the opportunity and ability of the
victim to independently regain control over her life.
The provisions of the protection order shall be
enforced by law enforcement agencies. The
protection orders that may be issued under this Act
are the barangay protection order (BPO), temporary
protection order (TPO) and permanent protection
order (PPO). The protection orders that may be
issued under this Act shall include any, some or all of
the following reliefs:
a.
If the applicants is not the victim, the application

must be accompanied by an affidavit of the applicant
attesting to (a) the circumstances of the abuse
suffered by the victim and (b) the circumstances of
consent given by the victim for the filling of the
application. When disclosure of the address of the
victim will pose danger to her life, it shall be so
stated in the application. In such a case, the
applicant shall attest that the victim is residing in the
municipality or city over which court has territorial
jurisdiction, and shall provide a mailing address for
purpose of service processing.
b.
c.
Prohibition of the respondent from

threatening to commit or committing,
personally or through another, any of the
acts mentioned in Section 5 of this Act;
Prohibition of the respondent from
harassing, annoying, telephoning,
contacting or otherwise communicating
with the petitioner, directly or indirectly;
Removal and exclusion of the respondent
from the residence of the petitioner,
regardless of ownership of the residence,
either temporarily for the purpose of
protecting the petitioner, or permanently
where no property rights are violated, and if
respondent must remove personal effects
d.
e.
f.
from the residence, the court shall direct a

law enforcement agent to accompany the
respondent has gathered his things and
escort respondent from the residence;
Directing the respondent to stay away from
petitioner and designated family or
household member at a distance specified
by the court, and to stay away from the
residence, school, place of employment, or
any specified place frequented by the
petitioner and any designated family or
household member;
Directing lawful possession and use by
petitioner of an automobile and other
essential personal effects, regardless of
ownership, and directing the appropriate
law enforcement officer to accompany the
petitioner to the residence of the parties to
ensure that the petitioner is safely restored
to the possession of the automobile and
other essential personal effects, or to
supervise the petitioners or respondents
removal of personal belongingness;
Granting a temporary or permanent
custody of a child/children to the
petitioner;
Directing the respondent to provide support to the

woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the
court shall order an appropriate percentage of the
income or salary of the respondent to be withheld
regularly by the respondents employer for the same
to be automatically remitted directly to the woman.
Failure to remit and/or withhold or any delay in the
remittance of support to the woman and/or her child
without justifiable cause shall render the respondent
or his employer liable for indirect contempt of court;
h.
Prohibition of the respondent from any use

or possession of any firearm or deadly
weapon and order him to surrender the
same to the court for appropriate
disposition by the court, including
revocation of license and disqualification to
apply for any license to use or possess a
firearm. If the offender is a law
enforcement agent, the court shall order
the offender to surrender his firearm and
shall direct the appropriate authority to
investigate on the offender and take
appropriate action on matter;
i.
j.
k.
Restitution for actual damages caused by

the violence inflicted, including, but not
limited to, property damage, medical
expenses, childcare expenses and loss of
income;
Directing the DSWD or any appropriate
agency to provide petitioner may need; and
Provision of such other forms of relief as
the court deems necessary to protect and
provide for the safety of the petitioner and
any designated family or household
member, provided petitioner and any
designated family or household member
consents to such relief.
Any of the reliefs provided under this section shall

be granted even in the absence of a decree of legal
separation or annulment or declaration of absolute
nullity of marriage.
The issuance of a BPO or the pendency of an
application for BPO shall not preclude a petitioner
from applying for, or the court from granting a TPO
or PPO.
SEC. 5. Acts of Violence Against Women and Their

Children.- The crime of violence against women and
their children is committed through any of the
following acts:
a.
b.
c.
d.
e.
Causing physical harm to the

woman or her child;
Threatening to cause the woman
or her child physical harm;
Attempting to cause the woman or
her child physical harm;
Placing the woman or her child in
fear of imminent physical harm;
Attempting to compel or
compelling the woman or her child
to engage in conduct which the
woman or her child has the right to
desist from or desist from conduct
which the woman or her child has
the right to engage in, or
attempting to restrict or restricting
the womans or her childs
freedom of movement or conduct
by force or threat of force, physical
or other harm or threat of physical
f.
g.
h.
or other harm, or intimidation

directed against the woman or
child. This shall include, but not
limited to, the following acts
committed with the purpose or
effect of controlling or restricting
the womans or her childs
movement or conduct:
1. Threatening to deprive or
actually depriving the
woman or her child of
custody to her/his family;
2. Depriving or threatening
to deprive the woman or
her children of financial
support legally due her or
her family, or deliberately
providing the womans
children insufficient
financial support;
3. Depriving or threatening
to deprive the woman or
her child of a legal right;
4. Preventing the woman in
engaging in any legitimate
profession, occupation,
business or activity or
controlling the victims
own mon4ey or
properties, or solely
controlling the conjugal or
common money, or
properties;
Inflicting or threatening to inflict
physical harm on oneself for the
purpose of controlling her actions
or decisions;
Causing or attempting to cause the
woman or her child to engage in
any sexual activity which does not
constitute rape, by force or threat
of force, physical harm, or through
intimidation directed against the
woman or her child or her/his
immediate family;
Engaging in purposeful, knowing,
or reckless conduct, personally or
through another, that alarms or
causes substantial emotional or
psychological distress to the
woman or her child. This shall
i.
include, but not be limited to, the

following acts:
1. Stalking or following the
woman or her child in
public or private places;
2. Peering in the window or
lingering outside the
residence of the woman
or her child;
3. Entering or remaining in
the dwelling or on the
property of the woman or
her child against her/his
will;
4. Destroying the property
and personal
belongingness or inflicting
harm to animals or pets of
the woman or her child;
and
5. Engaging in any form of
harassment or violence;
Causing mental or emotional
anguish, public ridicule or
humiliation to the woman or her
child, including, but not limited to,
repeated verbal and emotional
abuse, and denial of financial
support or custody of minor
children of access to the womans
child/children.
Effect of being a battered wife in case of the

children?
RA 9262, S28
A victim who is suffering from battered woman
syndrome shall not be disqualified from having
custody of her children. In no case shall custody of
minor children be given to the perpetrator of a
woman who is suffering from Battered woman
syndrome.
The woman victim of violence shall be entitled to the
custody and support of her child/children. Children
below seven (7) years old older but with mental or
physical disabilities shall automatically be given to
the mother, with right to support, unless the court

finds compelling reasons to order otherwise.
Any other protection orders? Acts?

(see above)
Venue in case of BPO?

SEC. 14. Barangay Protection Orders (BPOs); Who
May Issue and How. - Barangay Protection Orders
(BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of
this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex
parte determination of the basis of the application. If
the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted
upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad the order must be
accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable
at the time for the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after
the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally
serve a copy of the same on the respondent, or
direct any barangay official to effect is personal
service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.

R72-109 Special Proceedings Notes

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Special Proceedings and Remedial Law Review notes under Atty Ferdinand Tan

CONSOLIDATED NOTES in SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS NOTES

Defined by R1 S4 as a remedy by which a

1970 Bar: Distinguish Special Proceedings from

Sources of Special Proceedings:

CONSTITUTIONAL PROVISIONS RELATING TO

No person shall be deprived of life, liberty, or

Judicial Power includes the duty of the courts to

The Supreme Court may review, in an appropriate

No law shall be passed reorganizing the judiciary

exercise original jurisdiction over cases

review, revise, reverse, modify, or affirm on

all cases involving the legality of

All cases in which the jurisdiction

All criminal cases in which the

All cases in which only an error or

All persons, except those charged with offenses

The state recognizes the Filipino Family as the

The state values the dignity of every human person

Marriage, as an inviolable social institution, is the

the rights of spouses to found a family in

rights of children to assistance including

10. Writ of habeas data

What are the special proceedings?

Settlement of estate of deceased persons

Nature of Special Proceedings:

Note further that Special Proceedings are not Special

Certain proceedings not mentioned are considered

Declaration of presumptive death

Binding upon the whole world

When there are no applicable provisions in

What rule governs special proceedings?

(aka Rules on Ordinary Civil Actions

Special Proceedings has its own rules, if

Settlement of Estate of the Deceased, being

What are those specific provisions in Civil

Rule 4- Rules on Venue

Can the RTC-Manila entertain petition for probate

IF the court has no jurisdiction over special

(Special Proceedings in relation to Rule 4)

Rule 7 S1- Parts of a Pleading

Note that all of special proceedings are commenced

Power or authority of the court to hear,

Motion to dismiss can be filed for lack of

What then will be your remedy?

Can the court dismiss the petition motu proprio for

Rule 16- Motion to Dismiss

R33- Demurrer to Evidence

SETTLEMENT OF THE ESTATE OF THE DECEASED

Distribution, disposition, management of

RA7160- Barangay Conciliation Law / Katarungang

SETTLEMENT OF ESTATE OF THE DECEASED

Personal and Real- Totality of Estate of

If the gross value of estate of the deceased does not

1997 Bar: The gross estate of the deceased is 200k,

If filed in the court not with jurisdiction, file motion

Jurisdiction (BP129 RA7691): Depends upon the

If the gross value of the estate of the deceased

If the decedent is:

an inhabitant of the Philippines at the time

his will shall be proved,