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Where ward resides or Family Court - If minor

I. PRELIMINARY MATTERS where his property is ward
located (if non-resident)
RTC - If other than minor
• SPECIAL PROCEEDINGS – A remedy by Where the will was RTC
which a party seeks to establish a status, right allowed or where the
or a particular fact. [Rule 1, Sec. 3(c)] property affected by the
trust is located
If domestic - Where Family Court
adopter resides
• If special rules are provided, they shall apply. If inter-country - Where Family Court or Inter-
But in the absence of such special provisions, adoptee resides (if filed Country Adoption Board
the rules applicable in special proceedings shall with Family Court)
be applied. [Rule 72, Sec. 2] If rescission of adoption Family Court
• There are special proceedings which are not - Where adoptee resides
part of the ROC (e.g. Writs of amparo and Habeas corpus
habeas data), as special proceedings are in Where detainee is SC (on any day and at any
general cases wherein one seeks to establish detained (if filed in RTC) time, enforceable
the status/right of a party or a particular fact. anywhere in the
• The State has an overriding interest in each Philippines)
special proceeding, and the matter is not a XXXXX Sandiganbayan (only in aid
of its appellate
controversy between private parties purely.
XXXXX CA (in instances
• The distinction between final and interlocutory authorized by law,
orders in civil actions for purposes of enforceable anywhere in
determining the issue of applicability, is not the Philippines)
strictly applicable to orders in special XXXXXX RTC (on any day and at
proceedings. Rule 109 specifies the orders from any time, enforceable only
which appeals may be taken. [Regalado] within its judicial district)
• Rule 33 regarding judgment on demurrer to Writ of amparo
evidence is applicable to special proceedings. Where the threat or SC, CA, Sandiganbayan,
[Matute v. CA (1969)] act/comission or any of RTC
its elements occurred, at
any day and time) (if
PROCEEDINGS Writ of habeas data
Petitioner's residence or RTC
Ordinary action Special proceeding where the place the
To protect/enforce a right To establish a right/status informaion is
or prevent/redress a or fact gathered/collected/store
wrong d, at the petitioner's
Involves 2 or more May involve only 1 party option
parties SC, CA, Sandiganbayan -
Governed by ordinary Governed by special If the action concerns
rules, supplemented by rules, supplemented by public data files of
special rules ordinary rules government offices
Initiated by a pleading, Initiated by a petition, Change of name
and parties respond and parties respond If judicial - Where the RTC
through an answer through an opposition person applying for the
change of his name
If administrative - Local civil registry or
where the record sought
Venue Jurisdiction to be changed is kept
b) Local civil registry of XXXXX
Estate settlement the place of residence of
Province of decedent's MTC - If estate's gross interested party (only if
residence at the time of value does not exceed petitioner migrated to
death P300K (P400K in Metro another place in the
Manila) Philippines and it would
If non-resident decedent RTC - If estate's gross be impractical to file in
- Province where he had value exceed MTC's the place where records
estate jurisdiction sought to be changed
Escheat are kept)
c) Philippine consulates xXXXX
If decedent dies XXXXX
(only for Philippine
intestate and without
citizens who reside in
heirs - Province where
foreign countries)
decedent last resided or
Cancellation/correction of entries in the civil
where estate is
If reversion - Province XXXXX
where land lies
If judicial - Where the RTC
concerned civil registry is
Guardianship located

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If administrative - Local civil registry or

Philippine consulate
a) Local civil registry XXXXX DECEASED PERSONS
where the record sought
to be changed is kept
b) Local civil registry of XXXXX
the place of residence of A. VENUE AND JURISDICTION
interested party (only if
petitioner migrated to
• Special proceedings for settlement of estate
another place in the
Philippines and it would may be testate (where the deceased left a will)
be impractical to file in or intestate (if there is no will).
the place where records • Probate of a will is mandatory and takes
sought to be changed precedence over intestate proceedings.
are kept) • If in the course of intestate proceedings, it is
c) Philippine consulates XXXXX found that the decedent left a will, proceedings
(only for Philippine for the probate of the latter should replace the
citizens who reside in
intestate proceedings.
foreign countries)
Declaration of absence and appointment of their
Where absentee resided RTC
before his disappearance 1) If decedent is a resident of the Philippines
(whether citizen or alien) – Court of the place
where the decedent resided at the time of
2) If decedent is a non-resident of the Philippines
– Court of the place where the decedent had
his estate.
a) RTC if estate is greater than P300K (P400K
in Metro Manila)
b) MTC if estate is less than P300K (P400K in
Metro Manila)

• Note: Upon dissolution of marriage by the

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

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g) Whether property in inventory is 1) To satisfy the contributive shares of the

conjugal or exclusive property of devisees/legatees/heirs when the latter
deceased spouse. had entered prior possession over the
h) All other matters incidental/collateral to estate. [Rule 88, Sec. 6]
the settlement and distribution of the 2) To enforce payment of the expenses of
estate. partition. [Rule 90, Sec. 3]
• Exception: [Coca v. Borromeo] 3) To satisfy the costs when a person is
Where a particular matter should cited for examination in probate
be resolved by the RTC in the proceedings. [Rule 142, Sec. 13]
exercise of its general jurisdiction
or its limited probate jurisdiction is B. PRESUMPTION OF DEATH
not a jurisdictional issue but a mere
question of procedure and can be
• General rule: A person is dead for the purpose
of settling his estate if he has been missing for
10 years. [Art. 390, CC]
DETERMINATION OF OWNERSHIP • However, if the absentee disappeared after
the age of 75 years, an absence of 5 years
• General rule: Not allowed. is sufficient for the opening of succession.
• Exceptions: • However, the following persons would be
1) Provisionally, ownership may be considered absent even for the purpose of
determined for the purpose of including opening succession after just 4 years: [Art.
property in inventory, without prejudice 391, CC]
to its final determination in a separate 1) A person on board a vessel lost during
action. a sea voyage, or an aeroplane which is
2) If all the parties are heirs and they missing.
submit the issue of ownership to 2) A person in the armed forces who has
probate court, provided that the rights taken part in war.
of 3rd parties are not prejudiced. 3) A person who has been in danger of
3) If the question is one of collation or death under other circumstances.
advancement. • If the absentee turns out to be alive, shall be
4) If the parties consent to the entitled to the balance of his estate after
assumption of jurisdiction by the payment of all his debts. The balance may be
probate court. recovered by motion in the same proceeding.
[Rule 73, Sec. 4]
• General rule: The court first taking cognizance
of the settlement of the estate of the decedent ESTATE
shall exercise jurisdiction to the exclusion of all
other courts. The probate court acquires • General rule: Estate settlement should be
jurisdiction from the moment the petition for judicially administered through an
the settlement of estate is filed with said court. administrator/executor.
It cannot be divested of such jurisdiction by the • Exceptions:
subsequent acts of the parties (e.g. if they 1) Extrajudicial settlement by agreement
entered into an extrajudicial partition between/among heirs. [Rule 74, Sec.
settlement). [Sandoval v. Santiago] 1]
• Note: In Rodriguez v. Borja, the SC said 2) Summary settlement of estates of small
that the delivery of the will is sufficient for value. [Rule 74, Sec. 2]
jurisdiction to be acquired, even if no
petition is filed.
• Exception: Estoppel by laches. 1. EXTRAJUDICIAL
• General rule: Ordinary appeal, and not
certiorari or mandamus.
• Exception: If want of jurisdiction appears
on the record of the case. [Rule 73, Sec. 1;
Eusebio v. Eusebio]


• General rule: Probate court cannot issue writ

of execution.
• Rationale: Its orders usually refer to the
adjudication of claims against the estate
which the executor/administrator may
satisfy without the need of executory
• Exception: [Vda. de Valera v. Ofilada]

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PROCEDURE IN EXTRAJUDICIAL from such distribution and such lien

cannot be substituted by a bond.
• The bond is the value of the personal
AMONG HEIRS property certified by the parties under
oath and conditioned upon payment of
just claims filed under Rule 74, Sec. 4.
Death of the decedent

Division of estate in public instrument or affidavit ESTATES OF SMALL VALUE
of adjudication


The public instrument or affidavit of adjudication OF ESTATES OF SMALL VALUE
must be filed with the proper Registry of Deeds

Publication of notice of the fact of extrajudicial Death of the decedent

settlement once a week for 3 consecutive weeks
in a newspaper of general circulation

An application for summary settlement with an

allegation that the gross value of the estate does
Filing of bond equivalent to the value of personal not exceed P10K

REQUISITES Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks
in a newspaper of general circulation (the court
A. Substantive may also order notice to be given to other
1) The decedent left: persons as such court may direct
a) No will.
b) No debts.
• It is sufficient if any debts that the
decedent incurred has been paid at Hearing to be held not less than 1 month nor
the time of the extra-judicial more than 3 months from the date of the last
settlement. [Guico v. Bautista] publication of notice
• There is also the disputable
presumption that the decedent left
no debts if no creditor files a Court to proceed summarily, without appointing
petition for letters of administration an executor/administrator, and to make orders
within 2 years after the death of as may be necessary such as:
the decedent.
2) The heirs are all of age
• If there are minors, they should be Grant allowance of the will, if any
represented by their judicial or legal
representatives duly authorized for the
purpose. Determine persons entitled to estate
B. Procedural
1) Division of estate must be in a public
instrument or by affidavit of adjudication in
the case of a sole heir Pay debts of estate which are due
• Private instrument is valid. The
requirement of a public instrument in
Rule 74, Sec. 1 is not constitutive of Filing of bond fixed by the court
the validity but is merely evidentiary in
nature. (Hernandez v. Andal)
• However, reformation of the instrument Partition of estate
may be compelled. [Regalado]
2) Filed with proper registry of deeds.
3) Publication of notice of the fact of
extrajudicial settlement at least once a REQUISITES
week for 3 consecutive weeks.
• An extrajudicial settlement, despite the 1) Gross value of the estate must not exceed
publication thereof in a newspaper, P10K.
shall not be binding on any person who 2) Application must contain allegation of gross
has not participated therein or who had value of estate.
no notice thereof. [Rule 74, Sec. 1] 3) Date of hearing:
4) Bond filed equivalent to the value of the a) Shall be set by court not less than 1 month
personal property. nor more than 3 months from date of last
• The bond is required only when publication of notice.
personalty is involved. If it is a real b) Order of hearing published once a week for
estate, it shall be subject to a lien in 3 consecutive weeks in a newspaper of
favor of creditors, heirs or other general circulation.
persons for the full period of 2 years

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4) Notice shall be served upon such interested 6. ACTION TO ANNUL A DEED OF

persons as the court may direct. EXTRAJUDICIAL SETTLMENT ON THE
• A summary settlement is not binding upon GROUND OF FRAUD WHICH SHOULD BE
heirs/creditors who were not parties therein FILED WITHIN 4 YEARS FROM THE
or had no knowledge thereof. [Sampilo v. DISCOVERY OF FRAUD [Gerona v. De
CA] Guzman]
5) Bond in an amount fixed by the court (not
value of personal property) conditioned upon EXTRAJUDICIAL SETTLEMENT VS.
payment of just claims under Rule 74, Sec. 4.
Extra-judicial Summary settlement
SUMMARY SETTLEMENT No court intervention Requires summary
judicial adjudication
Estate's value is Gross estate value must
1. CLAIM AGAINST THE BOND OR REAL immaterial not exceed P10K
ESTATE OR BOTH [Rule 74, Sec. 4] There must be no Available even if there
outstanding debts at the are debts (since the
• Remedies: time of settlement court will make
1) If there is an undue deprivation of lawful provisions for payment)
participation in the estate Resorted to at the May be instituted by any
2) The existence of debts against the estate or instance and by interested party, even
undue deprivation of lawful participation agreement of all the by a creditor of the
heirs estate, without the
payable in money
consent of all the heirs
• This remedy can be availed of only within 2
Amount of bond is equal Amount of bond is to be
years after the settlement and distribution of to the value of the determined by the court
the estate. personal property
• Such bond and such real estate shall remain
charged with a liability to creditors/heirs, or
other persons for the full period of 2 years after
such distribution, notwithstanding any transfers
of real estate that may have been made. THROUGH AN
• Period for claim of minor or incapacitated ADMINISTRATOR/ EXECUTOR
person: Within 1 year after the minority or
• Grounds for petition for relief: FAME – fraud,
accident, mistake, excusable negligence.
Death of the decedent
• Period: 60 days after the petitioner learns of
the judgment, final order or other proceeding
to be set aside, and not more than 6 months
after such judgment or final order was entered. Petition for probate of the will, if any


Court order fixing the time and place for probate
• Who is allowed to intervene with leave of court:
A person who either:
1) Has a legal interest in the matter in
The court shall cause notice of such time and
place to be published 3 weeks successively in a
2) Has such legal interest in the success of newspaper of general circulation. Notice shall
either of the parties, or an interest against also be given to the designated/known heirs,
both; legatees and devisees, and the executor if the one
3) Is so situated as to be adversely affected petitioning for allowance of the will is not the
by a distribution/disposition of property in testator
the custody of the court or of an officer
• Period: Anytime before rendition of judgment
by the TC. As long as within reglementary Issuance of Letters Testamentary/Administration
period of 2 years.



• Reglementary period: The 2 years, and not the

prescription period. Payment of claims: sale/mortgage/encumbrance
of estate properties
WITH BAD FAITH [Art. 1104, CC] Distribution of remainder, if any
(but can be made before payment if a bond is
filed by the heirs)

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• Special proceedings for estate settlement may PROCEDURE AFTER WILL IS DELIVERED TO, OR
be testate (where the deceased left a will) or WHEN A PETITION FOR ALLOWANCE OF A WILL IS
intestate (if there is no will). FILED IN, THE COURT:
• There must be judicial settlement through an 1) The court shall fix a time and place for proving
administrator/executor if it does not fall under the will.
the 2 exceptions, regardless of the existence or • Rationale: So that all concerned may
non-existence of a will. appear to contest the allowance thereof, if
• The allowance of the will shall be conclusive as such is the case.
to its due execution. [Rule 75, Sec. 1] 2) The court shall cause notice of such time and
place to be published 3 weeks successively in a
a. VENUE AND newspaper of general circulation. This rule on
newspaper publication does not apply if the
probate of the will has been filed by the
testator himself.
• RTC if estate is greater than P300K (P400K in
3) The court shall give notice of the designated
Metro Manila).
time and place to:
• MTC if estate is less than P300K (P400K in
a) Designated/known heirs, legatees and
Metro Manila).
b) Executor and co-executor (if not the
• General rule: No. The probate court’s
• The probate court acquires jurisdiction over
authority is limited to:
the interested persons and the res only
1) Extrinsic validity of the will.
after the publication and notices are sent.
2) Due execution thereof.
Also, if the testator himself is the one
3) Testator’s testamentary capacity.
asking for the allowance of the will, the
4) Compliance with the requisites or
notice shall be sent only to his compulsory
solemnities prescribed by law.
• Exception:
1) If by mail – 20 days before hearing.
time/effort/expense plus added anxiety
2) If through personal notice – 10 days before
are the practical considerations that
induce us to a belief that we might as
well meet head-on the issues of the
validity of the provisions of the will.
1) If the formalities required by law have not been
[Nuguid v. Nuguid]
complied with
• If there is a defect that is apparent on
2) If the testator was insane, or otherwise
the face of the will. [Nepomuceno v.
mentally incapable of making a will, at the time
of its execution
3) If it was executed through force or under
b. ALLOWANCE/ duress, or the influence of fear, or threats
DISALLOWANCE OF THE 4) If it was procured by undue and improper
WILL pressure and influence, on the part of the
beneficiary or of some other person
5) If the signature of the testator was procured by
6) If the testator acted by mistake or did not
1) Executor;
intend that the instrument he signed should be
2) Devisee/legatee named in the will;
his will at the time of affixing his signature
3) Person interested in the estate;
4) Testator himself during his lifetime;
5) Any creditor – as a preparatory step for filing of
his claim therein. c. DUTY OF CUSTODIAN/
1) Jurisdictional facts: Death of the testator and Sec. 2]
his residence at the time of death or the place • To deliver the will within 20 days after he
where the estate was left by the decedent who knows of the death of the testator to the court
is a non-resident. having jurisdiction or to the executor named in
2) Names/ages/residences of the heirs, legatees, the will.
and devisees.
3) Probable value and character of the estate DUTY OF THE EXECUTOR NAMED IN THE WILL
property. [Rule 75, Sec. 3]
4) Name of the person for whom the letters are 1) It is his duty to present the will within 20 days
prayed. after (a) he knows of the death of the testator
5) Name of the person having custody of the will if or (b) after he knows that he is named the
it has not been delivered to the court. executor to the court having jurisdiction, unless
• But no defect shall render void the the will has reached the court in any other
allowance of the will, or the issuance of manner.
letters testamentary or of administration 2) Signify to the court in writing his acceptance of
with the will annexed. the trust or his refusal to accept it.


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• Without a satisfactory excuse, they shall be 2) That the will was in existence when the testator
fined a sum not exceeding P2K. [Rule 75, Sec. died, or if it was not, that it has been
4] fraudulently/accidentally destroyed in the
• If he retains the will and does not deliver it to lifetime of the testator without his knowledge;
the court, he may be committed to prison and and
kept there until he delivers the will. [Rule 75, 3) The provisions of the will are clearly established
Sec. 5] by at least 2 credible witnesses.

d. PROOF OF WILL • When a lost will is proved, the provisions

thereof must be distinctly stated and certified
• In the hearing for the probate of a will, the by the judge, under the seal of the court, and
compliance of publication and notice must first the certificate must be filed and recorded as
be shown before introduction of testimony in other wills are filed and recorded.
support of the will. [Rule 76, Sec. 5]
• General rule: Not allowed.
WILL • Exception: A lost/destroyed holographic
will could be proved by photostatic or xerox
1) Uncontested wills: [Rule 76, Sec. 5] copies thereof. [Rodelas v. Aranza]
a) Notarial wills – Testimony of at least 1 of
the subscribing witnesses may be allowed, PROOF OF HOLOGRAPHIC WILL IF TESTATOR
if such witness testifies that the will was PETITIONS FOR PROBATE [Rule 76, Sec. 12]
executed as is required by law. • The fact that he affirms that the holographic
• If all subscribing witnesses reside will and the signature are in his own
outside the province – Deposition is handwriting shall be sufficient evidence of the
allowed. genuineness and due execution thereof.
• If the subscribing witnesses are dead, • If contested, the burden of disproving the
insane, or if none of them resides in genuineness and due execution thereof shall be
the Philippines – The court may admit on the contestant. The testator may present
testimony of other witnesses to prove such additional proof as may be necessary to
the sanity of the testator and the due rebut the evidence for the contestant.
execution of the will; and as evidence
of the execution of the will, it may e. CONTEST TO WILL
admit proof of the handwriting of the
testator and of the subscribing
• Procedure: The person contesting the will must
witnesses or of any of them.
state his opposition in writing and serve a copy
b) Holographic wills – The testimony of 1
thereof on the petitioner and other parties
witness who knows the handwriting and
interested in the estate. [Rule 76, Sec. 10]
signature of the testator may be admitted.
In the absence thereof, the testimony of an
expert witness may be admitted. If the f. ALLOWANCE OF WILL
testator himself petitioned for the PROVED OUTSIDE THE
allowance of his holographic will, his PHILIPPINES
affirmation is sufficient evidence of the
genuineness and due execution of the will. • A will allowed/probated in a foreign country
2) Contested wills: [Rule 76, Sec. 11] must be reprobated in the Philippines.
a) Notarial wills – All subscribing witnesses • Administration of an estate extends only to the
and the notary public before whom the will assets of the decedent found within the state or
was acknowledged must be produced and country where it was granted. The
examined. administrator appointed in one state has no
• However, the will may be allowed if the power over property in another state or
court is satisfied from the testimony of country. [Leon & Ghezzi v. Manufacturer Life
other witnesses and from all the Insurance]
evidence presented that the will was • Petition to be filed in the RTC. The RTC where
executed and attested in the manner such petition is filed shall fix a time and place
required by law if any or all of them for the hearing and cause notice thereof to be
either: given as in case of an original will presented for
(1) Testify against the due execution of allowance. [Rule 77, Sec. 1 and 2]
the will;
(2) Do not remember having attested PROOF IN THE REPROBATE OF THE FOREIGN WILL
to it; [Suntay v. Suntay]
(3) Are otherwise of doubtful 1) The testator had his domicile in the foreign
credibility. country;
b) Holographic will – 3 witnesses who know 2) The will has been admitted to probate in such
the handwriting of the testator must be country;
produced. In the absence thereof, the 3) The fact that the foreign tribunal is a probate
testimony of an expert witness may be court;
resorted to. 4) The law on probate procedure of the said
foreign country and proof of compliance
LOST OR DESTROYED WILL [Rule 76, Sec. 6] 5) The legal requirements in said foreign country
1) That the will has been duly executed by the for the valid execution of the will.

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EFFECTS OF REPROBATE [Rule 77, Sec. 3 and 4] Compensation may be Compensation is to be

1) The will shall have the same effect as if provided for by the governed by Rule 85,
originally proved and allowed in the Philippines. testator in the will; Sec. 7
2) Letters testamentary or administration with a otherwise, Rule 85, Sec.
7 shall apply
will annexed shall extend to all estates of the
3) Such estate, after the payment of just debts
and expenses of administration, shall be
disposed of according to the will, so far as such
• If all of the named co-executors cannot act
will may operate upon it, and the residue, if
because of incompetency, refusal to accept the
any, shall be disposed of as provided by law in
trust, or failure to give bond, on the part of one
cases of estates in the Philippines belonging to
or more of them, letters testamentary may
persons who are inhabitants of another
issue to such of them as are competent, accept
and give bond, and they may perform the
duties and discharge the trust required by the
g. LETTERS TESTAMENTARY/ will. [Rule 78, Sec. 5]
1) Surviving spouse or next of kin.
PERSONS WHO MAY BE • NEXT OF KIN – Those persons who are
EXECUTORS/ADMINISTRATORS entitled under the statute of distribution to
1) EXECUTOR – The person named in the will to the decedent’s property.
administer the decedent’s estate and carry out 2) Any one or more of the principal creditors.
the provisions thereof. 3) Stranger.
2) ADMINISTRATOR (regular or special) – The
person appointed by the court to administer the • Rationale: The underlying assumption is that
estate where the decedent died intestate. those who will reap the benefits of a
• An administrator may also be one wise/speedy/economical administration of the
appointed by the court in cases when, estate or those who will most suffer the
although there is a will, the will does not consequences of
appoint any executor, or if appointed, said waste/improvidence/mismanagement, have the
person is either incapacitated or unwilling higher interest and most influential motive to
to serve as such. administer the estate correctly.
3) A corporation/association authorized to conduct • Letters of administration may be granted to
the business of a trust company in the any person or any other applicant even if there
Philippines may be appointed as an executor, are other competent persons with a better right
administrator, guardian of an estate, or to the administration, if such persons fail to
trustee, in like manner as an individual; but it appear when notified and claim the letters to
shall not be appointed guardian of the person themselves. [Rule 79, Sec. 6]
of a ward. [Art. 1060, CC] • If a petition for letters of administration is filed,
4) The marriage of a single woman also shall not such court shall fix a time and place for hearing
affect her authority to serve under a previous the petition and shall cause notice thereof to be
appointment. [Rule 78, Sec. 3] given to the known heirs and creditors of the
decedent, and other persons believed to have
PERSONS WHO ARE INCOMPETENT TO SERVE AS an interest in the estate. [Rule 79, Sec. 3]
1) A minor.
3) One who, in the opinion of the court, is unfit to TESTAMENTARY [Rule 79, Sec. 1]
exercise the duties of the trust by reason of: • Any interested person in the will.
a) Drunkenness. • He should state the grounds in writing why he
b) Improvidence. is opposing and he may attach a petition for
c) Want of understanding/integrity. letters of administration.
d) Conviction of an offense involving moral
turpitude. CONTENTS OF A PETITION [Rule 79, Sec. 2]
4) The executor of an executor cannot administer 1) Jurisdictional facts.
the estate of the first testator. 2) Names/ages/residences of heirs and creditors.
3) Probable value and character of the estate.
Executor Administrator 4) Name of the person for whom the letters are
Nominated by the Appointed by the court if prayed for.
testator and appointed the testator did not
by the court appoint, of if the • But no defect in the petition shall render void
appointee is the issuance of letters of administration
incapacitated or refused
Duty to present the will No such duty GROUNDS FOR OPPOSING [Rule 79, Sec. 4]
to court 1) in Letters Testamentary:
Testator may provide Administrator must
• Incompetence.
that executor may serve always give a bond
without bond (but the
2) in Letters of Administration:
court may direct him to • Incompetence.
give bond to pay debts) • Preferential right under Rule 78, Sec. 6.

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SPECIAL ADMINISTRATORS 7) To render true an just account of his

administration within 1 year of appointment.
• Court EEs should not be appointed special 8) To perform all orders by the court.
administrators as their objectivity and 9) Discharge all debts/legacies/charges as shall be
impartiality may be compromised by decreed by the court.
extraneous considerations.[Medina v. CA] 10) Give allowance to legitimate surviving spouse
• The order of preference in the appointment of or children of the decedent if the court decrees
regular administrators does not apply to the such (grandchildren are not entitled).
appointment of a special administrator, but
such order of preference may be followed by DUTIES/POWERS OF THE SPECIAL
the judge in the exercise of sound discretion. ADMINISTRATOR
[Matias v. Gonzales] 1) Possession and charge of the goods, chattels,
• Similarly, the grounds for the removal of the rights, credits and estate of the deceased.
regular administrator do not apply strictly to 2) Preserve the same.
the special administrator as he may be 3) Commence and maintain suit for the estate.
removed by the court on other grounds in its 4) Sell only: (1) perishable property; and (2)
discretion. [Junquera v. Borromeo] property ordered by the court.
• The order appointing a special administrator is 5) Pay debts only as may be ordered by the court.
an interlocutory and is not appealable. [Garcia 6) Make a true inventory and appraisal of all
v. Flores] real/personal property of decedent within 3
months after his appointment (except clothes
WHEN APPOINTED of family, marriage bed, and other articles for
1) Delay in granting of letters including appeal in subsistence of family).
the probate of the will. [Rule 80, Sec. 1] 7) To render true an just account of his
2) Executor is a claimant of the estate he administration within 1 year of appointment.
represents. [Rule 86, Sec. 8] 8) To perform all orders by the court.
• In this case, the administrator shall have 9) Give allowance to legitimate surviving spouse
the same powers as that of a general or children of the decedent if the court decrees
administrator. such (grandchildren are not entitled).
10) Deliver property he received to person
Regular administrator Special administrator appointed as executor or administrator or to
such other person as may be authorized by the
Appointment may be the Appointment is an
subject of appeal interlocutory order and court.
may not be the subject of
One of the obligations is He cannot pay the estate's ADMINISTRATOR/EXECUTOR
to pay the estate's debts debts 1) Cannot acquire by purchase, even at public or
Appointed if decedent Appointed if there is delay judicial auction, either in person or mediation
died intestate or did not in granting letters of another, the property under administration.
appoint an testamentary or letters of 2) Cannot borrow money without authority of the
administrator, or if the administration, or if the
appointee refused or is executor is a claimant of
not qualified the estate he represents
3) Cannot peculate with funds under
4) Cannot lease the property under administration
for more than 1 year.
DUTIES AND GENERAL POWERS OF 5) Cannot continue the business of the deceased
ADMINISTRATORS AND SPECIAL unless authorized by the court.
ADMINISTRATORS 6) Cannot profit by the increase/decrease in the
value of the property under administration.
1) To have access to, and examine and take (AFTER THE FIRST RESIGNS, IS REMOVED, OR
copies of books and papers relating to the REVOKED)
partnership in case of a deceased partner. 1) Collect and settle the estate not administered.
2) To examine and make invoices of the property 2) Prosecute/defend actions commenced by or
belonging to the partnership in case of a against the former executor/administrator.
deceased partner. 3) Recover execution on judgments in the name
3) To make improvements on the properties under of former executor/administrator.
administration with the necessary court
approval except for necessary repairs. BOND
4) To maintain in tenantable repair the houses • A bond is necessary. Even if the testator
and other structures and fences and to deliver provides that the executor shall serve without a
the same in such repair to the heirs or devisees bond, the court may still require the executor
when directed to do so by the court. to give a bond, but the only condition which
5) To possess and manage the estate when attaches to the bond is the payment of the
necessary for (1) the payment of debts, and debts of the testator. [Rule 81, Sec. 2]
(2) for the payment of expenses of • Additional bond may be required:
administration. 1) When there is a change in circumstances of
6) Make a true inventory and appraisal of all the executor/administrator or for other
real/personal property of decedent within 3 sufficient cause. [Rule 81, Sec. 2]
months after his appointment (except clothes 2) In case of sale/mortgage/encumbrance of
of family, marriage bed, and other articles for the property of the estate conditioned that
subsistence of family). the administrator/executor account for the

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proceeds of the sale or encumbrance. [Rule • Before the account is allowed, notice shall be
89, Sec. 7(c)] given to interested persons in order for them
• For joint executors and administrators: The for examination. [Rule 85, Sec. 10]
court may take separate bonds from each or a
joint bond from all. [Rule 81, Sec. 3] REVOCATION OF ADMINISTRATION;
• The executor/administrator is accountable for • If the letters of administration have been
the entire estate of the deceased. However, he granted because of the belief that the decedent
is not accountable for properties which never had died intestate, and then a will is discovered
came to his possession. [Rule 85, Sec. 1] and allowed by the court, the administration
• However, he would still be liable for properties shall be revoked and the administrator shall
which never came to his possession if through surrender the letters of administration to the
unfaithfulness to the trust or his own fault or court and render his account of administration.
lack of necessary action, the • It is within the court’s discretion on WON the
executor/administrator failed to recover part of intestate proceeding should be discontinued
the estate which came to his knowledge. and a new proceeding should be constituted.
• Generally, the executor/administrator is not • The discovery of a will does not ipso facto
liable for debts due the estate which are not nullify the administration unless the will has
yet paid; unless it remained uncollected been proved and allowed. [De Parreño v
because of his fault. [Rule 85, Sec. 1] Aranzanso]
• Income from realty when used by the • Acts of the administrator done before his
administrator/executor: The administrator shall removal/resignation/revocation are valid unless
account for it as may be agreed upon by him proven otherwise. [Rule 82, Sec.3]
and the parties interested, or adjusted by the
court with their assent. If the parties do not GROUNDS FOR REMOVAL OF
agree upon the sum to be allowed, the same EXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2]
may be ascertained by the court whose 1) Neglect to render accounts (within 1 year when
determination shall be final. [Rule 85, Sec. 4] the court directs).
• Neglects or delays to raise or pay money: The 2) Neglect to settle estate according to the ROC.
administrator shall be liable therefore on his 3) Neglect to perform an order/judgment of the
bond. [Rule 85, Sec. 5] court or a duty expressly provided by the ROC.
4) Absconding.
EXPENSES OF ADMINISTRATION 5) Insanity or incapacity or unsuitability to
• Expenses necessary for the management of the discharge the trust
property, for protecting it against destruction
or deterioration, and possibly for the
production of fruits.
• That provided by the will is controlling.
• However, if there is no compensation provided, • Definition: Period fixed by the ROC for the
the compensation shall be either: filing of claims against the estate for
1) P4/day for the time actually and necessarily examination and allowance. The Statute of
employed; Non-Claims applies only to claims that do not
2) Commission upon the value of so much of survive.
the estate as comes into his possession and
finally disposed of by him; PERIOD FOR CLAIMS [Rule 86, Sec. 2]
3) 2% of the first P5K, 1% in excess of P5K up • General rule: Within the time fixed in the
to P30K, ½% in excess of P30K up to notice which shall not be more than 12 months
P100K, and ¼% in excess of P100K. nor less than 6 months after the date of the
• For 2 or more executors/administrators: The first publication. Otherwise, the claims are
compensation shall be apportioned among barred forever.
them by the court according to the services • Even if the testator acknowledged the debt
actually rendered by them respectively. in his will and instructed the executor to
• Charge of legal fees rendered by pay such debt, the Statute of Non-Claims
executor/administrator to the estate: Not must still be complied with.
allowed. • Exception: BELATED CLAIMS – Claims
not filed within the original period fixed by
RENDER OF ACCOUNT the court. On application of a creditor who
• Within 1 year from receiving letters has failed to file his claim within the time
testamentary/letters of administration. [Rule previously limited, at any time before an
85, Sec. 8] order of distribution is entered, the court
• The court also may examine the may, for cause shown and on such terms
executor/administrator upon oath as to any as are equitable, allow such claim to be
matter relating to the account rendered by him. filed not exceeding 1 month from the order
[Rule 85, Sec. 9] allowing belated claims (the order may be
in open court or not).

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• The Statute of Non-Claims and the Statute admitted as creditor and shall receive no
of Limitations must concur in order for a share in the distribution of the other assets
creditor to collect. of the estate.
• A creditor barred by the Statute of Non- • These remedies are alternative; the availment
Claims may file a claim as a counterclaim in of one bars the availment of the other
any suit that the executor or administrator remedies.
may bring against such creditor.
1) Money claims, debts incurred by the deceased
during his lifetime, arising from contract:
• If executor/administrator has a claim: He shall
a) Express or implied;
give notice to the court in writing and the court
b) Due or not due;
thereafter shall appoint a special administrator.
c) Absolute or contingent.
[Rule 86, Sec. 8]
2) Claims for funeral expenses or for the last
illness of the decedent.
3) Judgment for money against decedent. PROCESS FOR CLAIMS [Rule 86, Sec. 10]

• However, a creditor barred by the statute of 1) Deliver the claim with the necessary vouchers
non-claims may file a claim as a counterclaim to the clerk of court.
in any suit that the executor or administrator 2) Serve a copy thereof on the
may bring against such creditor. executor/administrator.
3) If the claim is due, it must be supported by
NOTICE REQUIREMENT IN CLAIMING AGAINST THE affidavit stating the amount due and the fact
ESTATE: that there has been no offsets.
1) The court, after granting letters 4) If the claim is not due or contingent, it must be
testamentary/letters of administration, may accompanied by an affidavit stating the
immediately issue notices to creditors to file particulars thereof.
their claims. 5) Executor must file his answer to the claim
2) This notice must be published for 3 successive within 15 days after service of a copy of the
weeks in a newspaper of general circulation claim.
and province, and post the same in 4 public • Answer should contain:
places in the province and 2 public places in • Either admit or deny the claim and set
the municipality where the decedent last forth the substance of the matters
resided. which are relied upon to support such
3) Within 10 days after the notice has been admission or denial.
published and posted in accordance with the • If the executor/administrator has no
preceding section, the executor/administrator knowledge sufficient to enable him to
shall file or cause to be filed in the court a admit or deny specifically, he shall
printed copy of the notice accompanied with an state such want of knowledge.
affidavit setting forth the dates of the first and • The answer must also set forth claims
last publication thereof and the name of the which the decedent has against the
newspaper in which the same is printed. claimant or else it will forever be
executor/administrator may be opposed by
an heir/legatee/devisee. [Rule 86, Sec. 11]
• The claim shall be filed against the decedent as
• The court may refer contested claims to a
if he were the only debtor, without prejudice to
commissioner. [Rule 86, Sec. 12]
the right of the estate to recover contribution
from the other debtor. [Rule 86, Sec. 6]
• If the obligation of the decedent is joint with APPEAL FROM JUDGMENT ON A CLAIM
another debtor: The claim shall be confined to AGAINST ESTATE
the portion belonging to him. [Rule 86, Sec. 6]
• Judgment is appealable like in ordinary cases.
MORTGAGE DEBT DUE FROM ESTATE • A judgment against executor/administrator
shall be that he pay the amount ascertained to
• Remedies of a creditor holding a claim against be due and shall not create any lien upon the
the deceased secured by a mortgage or other property of the estate, or give the judgment
collateral security: [Rule 86, Sec. 7] creditor any priority of payment. [Rule 86, Sec.
1) ABANDON the security and prosecute his 13]
claim against the estate and share in the • The mode of appeal is record on appeal and
general distribution of the assets of the must be filed within 30 days from notice of
estate. judgment.
2) FORECLOSE his mortgage or realize upon • When the executor /administrator admits and
his security by action in court making the offers to pay part of a claim, and the claimant
executor or administrator a party defendant refuses to accept the amount offered in
and if there is judgment for deficiency, he satisfaction of his claim, if he fails to obtain a
may file a claim (contingent) against the more favorable judgment, he cannot recover
estate within the Statute of Non-Claims. costs, but must pay to the
3) RELY SOLELY ON HIS MORTGAGE and executor/administrator costs from the time of
foreclose (judicial or extrajudicial) the the offer. Where an action commenced against
same at anytime within the period of the the deceased for money has been discontinued
Statute of Limitations but he cannot be and the claim embraced therein presented as in

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this rule provided, the prevailing party shall be 1) The creditors making the application pay
allowed the costs of his action up to the time of such part of the costs and expenses;
its discontinuance. [Rule 86, Sec. 14] 2) Give security therefore to the
i. ACTIONS BY OR AGAINST • Requisites before creditor may bring action
[Rule 87, Sec. 10]
1) There is a deficiency of assets in the hands
ADMINISTRATORS of an executor/administrator for the
payment of debts and expenses of
• Heirs may not sue the executor/administrator administration.
for recovery of property left by the decedent 2) In his lifetime, the deceased had made or
until there is an order of the court assigning attempted to make a fraudulent
such lands to such heir or until the time for conveyance of his property or had so
paying debts has expired. [Rule 87, Sec. 3] conveyed such property that by law, the
conveyance would be void as against other
3) The subject of the attempted conveyance
• CLAIMS THAT SURVIVE - Actions that may would be liable to attachment in his
be commenced directly against the executor lifetime.
and administrator. [Rule 87, Sec. 1] 4) The executor/administrator has shown no
1) Recovery of real/personal property (or any desire to file the action or failed to institute
interest therein) from the estate. the same within a reasonable time.
2) Enforcement of a lien thereon. 5) Leave is granted by the court to the
3) Action to recover damages arising from creditor to file the action.
tort. 6) A bond is filed by the creditor.
7) The action by the creditor is in the name of
CLAIMS THAT DO NOT SURVIVE [Rule 86, the executor/administrator.
• The last 3 requisites are unnecessary where the
Sec. 5]
grantee is the executor/administrator himself,
in which event, the action should be in the
1) Money claims, debts incurred by the deceased
name of all the creditors.
during his lifetime arising from contract:
a) Express or implied;
c) Absolute or contingent. ENTRUSTED BY EXECUTOR/
2) Claims for funeral expenses or for the last ADMINISTRATION TO 3RD PERSON [Rule
illness of the decedent.
87, Sec. 7]
3) Judgment for money against decedent.
• Complaint of executor/administrator against
PROCEEDINGS ON MORTGAGE DUE person entrusted with estate: The court may
ESTATE require such person entrusted with the estate
to appear before it and render a full account of
• Executor/administrator can foreclose a all property which came into his possession.
mortgage belonging to the decedent. [Rule 87, • Refusal to appear or give an accounting may be
Sec. 5] punished with contempt.


• Concealment/embezzlement/conveyance away
any of the property of the deceased: The court
may cite such suspected person to appear
before it and examine him on oath on the
matter of such complaint. [Rule 87, Sec. 6] • General rule: The payment of the debts of the
• If the suspected person refuses to appear or to estate must be taken: (a) from the portion or
answer questions asked him during the property designated in the will; (b) from the
examination, the court may punish him for personal property; and (c) from the real
contempt and may commit him to prison until property, in that order. If there is still a
he submits to the order of the court. [Rule 87, deficiency, it shall be met by contributions by
Sec. 6] devisees, legatees, or heirs who have been in
• If even before the granting of the letters possession.[Rule 88, Sec. 2, 3 and 6]
testamentary/letters of administration, such • Exception: Instances when realty can be
person shall be liable for double the value of charged first:
the property sold, embezzled, or alienated to 1) When the personal property is not
be recovered for the benefit of the estate. [Rule sufficient. [Rule 88, Sec. 3]
87, Sec. 8] 2) Where the sale of such personalty
If decedent who fraudulently conveys the would be detriment of the participants
property to defraud creditors and there is a (everyone) of the estate. [Rule 88, Sec.
deficiency of assets in the hands of the 3]
administrator: Executor/administrator may 3) When sale of personal property may
commence and prosecute an action for the injure the business or interests of those
recovery of such property for the benefit of interested in the estate. [Rule 89, Sec.
credits BUT he shall not be bound to commence 2]
the action unless either: [Rule 87, Sec. 9] 4) When the testator has not made
sufficient provision for payment of such

100% UP LAW UP BAROPS 2008 Page 103 of 40


debts/expenses/legacies. [Rule 89, 2) The court shall thereupon fix a time and
Sec. 2] place for hearing such petition, and cause
5) When the decedent was, in his lifetime, notice stating the nature of the petition, the
under contract, binding in law, to deed reason for the same, and the time and place
real property to beneficiary. [Rule 89, of hearing, to be given personally or by mail to
Sec. 8] the persons interested, and may cause such
6) When the decedent during his lifetime further notice to be given, by publication or
held real property in trust for another otherwise, as it shall deem proper;
person. [Rule 89, Sec. 9] 3) If the court requires it, the
• Requisites for exception to ensue: executor/administrator shall give an additional
1) Application by executor/administrator; bond, in such sum as the court directs,
2) Written notice to persons interested; conditioned that such executor/administrator
3) Hearing. will account for the proceeds of the
• The same principles apply if the debt of the sale/mortgage/encumbrance;
estate is in another country. 4) If the requirements in the preceding
• The court may authorize an subdivisions of this section have been complied
executor/administrator to with, the court, by order stating such
sell/mortgage/encumber real estate acquired compliance, may authorize the
by him on execution or foreclosure sale, under executor/administrator to
the same circumstances and under the same sell/mortgage/encumber, in proper cases, such
regulations as prescribed in this rule for the part of the estate as is deemed necessary, and
sale/mortgage/encumbrance of other real in case of sale the court may authorize it to be
estate. public or private, as would be most beneficial
• If testator orders the payment of a debt he to all parties concerned. The
believes he owes but does not in fact owe: The executor/administrator shall be furnished with
disposition shall be considered as not written. If a certified copy of such order;
as regards a specified debt more than the 5) If the estate is to be sold at auction, the mode
amount thereof is ordered paid, the excess is of giving notice of the time and place of the
not due, unless a contrary intention appears. sale shall be governed by the provisions
• Order of the sale of personal property: [Rule concerning notice of execution sale;
89,Sec. 1] 6) There shall be recorded in the registry of deeds
1) To pay the debts and expenses of of the province in which the real estate
administration; thus sold/mortgaged/encumbered is situated,
2) To pay legacies; a certified copy of the order of the court,
3) To cover expenses for the preservation of together with the deed of the
the estate. executor/administrator for such real estate,
which shall be as valid as if the deed had been
EXCEPTIONS; executed by the deceased in his lifetime.
• If sale/mortgage/encumbrance of the property
REALTY EVEN IF PERSONALTY IS of the decedent prevented by an interested
SUFFICIENT TO PAY DEBTS person: That person can give a bond, in a sum
fixed by the court, conditioned to pay the
WHEN REALTY IS CHARGED FIRST debts, expenses of administration, and
1) When the personal property is not sufficient. legacies, and such bond shall be for the
[Rule 88, Sec. 3] security of the creditors, as well as of the
2) Where the sale of such personalty would be executor/administrator, and may be prosecuted
detriment of the participants (everyone) of the for the benefit of either. [Rule 89, Sec. 3]
estate. [Rule 88, Sec. 3] • Effect if the sale, mortgage, or encumbrance of
3) When sale of personal property may injure the the decedent’s property is done without notice:
business or interests of those interested in the Void. Since the heirs are the presumptive
estate. [Rule 89, Sec. 2] owners, they succeed to the rights and
4) When the testator has not made sufficient obligations of the deceased at the moment of
provision for payment of such the latter’s death, and are the persons directly
debts/expenses/legacies. [Rule 89, Sec. 2] affected by the sale/mortgage and therefore
5) When the decedent was, in his lifetime, under cannot be deprived of the property, except in
contract, binding in law, to deed real property the manner provided by law. [Maneclang v.
to beneficiary. [Rule 89, Sec. 8] Baun]
6) When the decedent during his lifetime held real
property in trust for another person. [Rule 89, PAYMENT OF CONTINGENT CLAIMS [Rule
Sec. 9] 88, Sec. 4]


SELL/MORTGAGE/ENCUMBER ESTATES [Rule 89, to the happening of a future uncertain event.
Sec. 7] • If the court is satisfied that a contingent claim
1) The executor/administrator shall file a written duly filed is valid, it may order the
petition setting forth the debts due from the executor/administrator to retain in his hands
deceased, the expenses of administration, the sufficient estate to pay such contingent claim
legacies, the value of the personal estate, the when the same becomes absolute, or, if the
situation of the estate to be estate is insolvent, sufficient to pay a portion
sold/mortgaged/encumbered, and such other equal to the dividend of the other creditors.
facts as show that the • Requisites for the estate to be retained to meet
sale/mortgage/encumbrance is necessary or contingent claims:

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1) Contingent claim is duly filed within the 2 property of such deceased person there
year period allowed for the creditors to found is not equally apportioned to the
present claims; creditors residing in the Philippines and the
2) Court is satisfied that the claim is valid; other creditors, according to their
3) The claim has become absolute. respective claims.
• If contingent claim that is not presented after
becoming absolute within the 2 year period ORDER OF PAYMENT OF DEBTS
allowed: The assets retained in the hands of
the executor/administrator, not exhausted in
• Before the expiration of the time limited for the
the payment of claims, shall be distributed by
payment of debts (1 year, but may be
the order of the court to the persons entitled to
extended), the court shall order the payment
the same; but the assets so distributed may
thereof. [Rule 88, Sec. 11]
still be applied to the payment of the claim
• The court may suspend the order for the
when established, and the creditor may
payment of debts or may order the distribution
maintain an action against the distributees to
if an appeal is taken, among the creditors
recover the debt, and such distributees and
whose claims are definitely allowed, leaving in
their estates shall be liable for the debt in
the hands of the executor/administrator
proportion to the estate they have respectively
sufficient assets to pay the claim disputed and
received form the property of the deceased.
appealed. [Rule 88, Sec. 12]

FOR DEBTS [Rule 88, Sec. 15 and 16]

• If heirs have taken possession of portions of • Need not exceed 1 year in the first instance;
the estate before the debts have been settled, but court may extend on application of
they shall become liable to contribute for the executor/administrator and after hearing and
payment of debts and expenses, and the court notice thereof.
may, after hearing, settle the amount of their • Extension must not exceed 6 months for single
several liabilities, and order how much and in extension. The whole period allowed to the
what manner each person shall contribute. original executor/administrator shall not exceed
[Rule 88, Sec. 6] 2 years.
• The successor of dead executor/administrator
PAYMENT IF ESTATE INSOLVENT OR may be allowed an extension not to exceed 6

• If insufficient estate to pay all debts: The k. SALES AND CONVEYANCE OF

executor/administrator shall pay the debts PERSONALTY/REALTY FOR
according to the concurrence and preference of
credits provided by Art. 1059 and 2239-2251, OTHER REASONS
CC. [Rule 88, Sec. 7]
• After following the order of preference of WHEN BENEFICIAL TO INTERESTED
credits, if all the creditors belonging to that PERSONS
class cannot be paid in full, then all of them will
suffer a reduction in proportion to that creditors • Authorization of sale as beneficial to interested
claim No creditor of any one class shall receive persons: [Rule 89, Sec. 4]
any payment until those of the preceding class 1) Upon application by the
are paid. [Rule 88, Sec. 8] executor/administrator and on notice to
• Estate of an insolvent non-resident disposed of: interested persons (heirs/devisees, etc.),
His estate in the Philippines shall be so the court may authorize the
disposed of that his creditors in and outside the executor/administrator to sell the whole or
Philippines may receive an equal share, in part of the estate.
proportion to their respective credits. [Rule 88, 2) Authority shall not be granted if
Sec. 9] inconsistent with the provisions of a will.
• Claim proven outside the Philippines against an The proceeds of such sale shall be assigned
insolvent resident’s estate paid: Claims proven to the persons entitled to the estate in the
outside the Philippines where the executor had proper proportions.
knowledge and opportunity to contest its
allowance therein may be added to the list of
claims in the Philippines against the estate of
an insolvent resident and the estate will be DECEASED CONTRACTED TO CONVEY
distributed equally among those creditors. The DURING LIFETIME
claims of foreign creditors against insolvent
non-residents and against insolvent residents AUTHORIZATION OF CONVEYANCE OF REALTY
would not be able to recover from the estate if WHICH DECEASED CONTRACTED TO CONVEY [Rule
there is no reciprocity with that creditor’s 88, Sec. 8]
country granting the same benefit to Filipinos. • If the decedent was in his lifetime under
[Rule 88, Sec. 10] contract, binding in law, to deed real property
• However, the benefit of this and the pre- on an interest therein, the court may authorize
ceding sections shall not be extended to the executor/administrator to convey such
the creditors in another country if the property according to such contract, or with

100% UP LAW UP BAROPS 2008 Page 105 of 40


such modifications as are agreed upon by the EXPENSES OF PARTITION [Rule 90, Sec. 3]
parties and approved by the court.
• If the property is to be conveyed to the • General rule: If there are sufficient effects in
executor/administrator, it is the clerk of court the hands of the executor/administrator, and if
which shall execute the deed. it not inconsistent with the intention of the
testator, then such may be applied for the
PROCEDURE payment of the expenses of partition.
• There should be an application for such • Exception: If it cannot be paid by the
purpose and notice should be given to the executor/administrator, it should be paid
interested persons and such further notice, by by the parties in proportion to their
publication or otherwise, as the court deems respective shares or interest in the estate,
proper. [Rule 89, Sec. 8] and the apportionment shall be settled and
• While Rule 89, Sec. 8 does not specify who allowed by the court.
should file the application, it stands to • Person interested in the partition does not
reason that the proper party must be one pay his proportion/share of the expenses of
who is to be benefited/injured from the partition, the court may issue an execution
judgment or one who is entitled to the in the name of the executor/administrator
avails of the suit (i.e. even people not the against him.
executor/administrator can file the
application). [Heirs of Spouses Sandejas v.
• Partition may be set aside only if interested
DECEASED HELD IN TRUST party is left out by reason of circumstances
beyond his control or mistake/inadvertence not
• Authorization of conveyance of realty which the imputable to negligence.
deceased held in trust: Following the notice • Remedies: Motion to reopen within the 30-day
requirement required as in the case where the reglementary period; then appeal from the
decedent was under contract to convey realty, order of denial (the latter is not an independent
the court may allow the executor/administrator action.
to deed such property to the person for whose • Since it is a proceeding in rem, all interested
use and benefit the property was held. The persons have constructive notice, and
court may order the execution of such trust jurisdiction of probate court is exclusive.
whether by deed or by law. [Rule 89, Sec. 9] • Non-distribution of estate is not a ground for
reopening. Remedy for such case is a
l. PARTITION AND motion for execution, or, if beyond the
DISTRIBUTION OF ESTATE reglementary period, a separate action for
recovery of shares.

• General rule: Order of distribution shall be

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

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

1) There should be an application by the

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

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III. GUARDIANSHIP proceedings may be served. [Gorostiaga v.



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

INCOMPETENTS [Rule 92, Sec. 2]

Service of judgment on the local civil registrar
1) Persons suffering the penalty of civil
2) Hospitalized lepers;
3) Prodigals;
Filing of bond by the guardian
4) Deaf and dumb who are unable to read and
5) Those who are of unsound mind, even though
they have lucid intervals;
Termination of guardianship 6) Persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid,
take care of themselves and manage their
DEFINITION property, thereby becoming an easy prey for
deceit and exploitation.
1) LEGAL GUARDIAN – Deemed as guardian by
TRANSFER OF VENUE [Rule 92, Sec. 3]
provision of law, without need of court
appointment. [Art. 320, CC; Art. 225, FC]
• The court taking cognizance of a guardianship
2) GUARDIAN AD LITEM – Appointed by the
proceeding may transfer the same to the court
courts of justice to prosecute or defend a
of another province/municipality wherein the
minor, insane or person declared to be
ward has acquired real property, if he has
incompetent, in a court action.
transferred thereto his bona-fide residence. The
3) JUDICIAL GUARDIAN – Appointed by the
latter court shall have full jurisdiction to
court in pursuance to law, as guardian for
continue the proceedings, without requiring
insane persons, prodigals, minor heirs or
payment of additional court fees.
deceased war veterans and other incompetent
a) Guardian over the person; PETITION FOR APPOINTMENT OF A
b) Guardian of the property; GUARDIAN
c) GENERAL GUARDIAN – Has custody and
care of the ward’s person and property. WHO MAY PETITION
1) For resident incompetents: [Rule 93, Sec. 1]
BASIS a) Any relative/friend/person on behalf of the
• It is the State’s duty to protect the rights of incompetent who has no parent or lawful
persons/individuals who because of guardian;
age/incapacity are in an unfavorable position b) Health Secretary, in favor of:
vis-à-vis other parties. This parens patriae is (1) an insane person who should be
inherent in the supreme power of the State. It hospitalized;
is a most beneficent function and often (2) an isolated leper.
necessary to be exercised in the interest of 2) For non-resident incompetents: [Rule 93, Sec.
humanity and for the prevention of injury to 6]
those who cannot protect themselves. [Nery v. a) Any relative/friend;
Lorenzo, (1972)] b) Anyone interested in the incompetent’s
NECESSITY • If the interested person is a creditor
• Jurisdiction over an incompetent’s person and mortgagee of the ward’s estate, he
cannot be had unless a guardian was appointed cannot be appointed guardian of the
upon whom summons and notice of the

100% UP LAW UP BAROPS 2008 Page 107 of 40


ward’s person and property. No man person in question is an incompetent, the court
can serve two masters. [Garchitorena shall appoint a suitable guardian of his
v. Sotelo] person/estate/both. [Rule 93, Sec. 5]
• The guardian’s appointment is good until set
PETITION’S CONTENTS [Rule 93, Sec. 2] aside; and, despite and appeal therefrom, the
1) Jurisdictional facts; guardian can do what is necessary (under
2) Incompetency rendering the appointment court’s direction) for the protection of the
necessary/convenient; ward/estate. [Zafra-Sarte v. CA (1970)]
3) Names/ages/residences of the incompetent’s
relatives, and of the persons having him in SERVICE OF JUDGMENT
their care; • The final order or judgment shall be served
4) Estate’s probable value and character; upon the civil registrar of the municipality/city
5) Name of the person for whom letters of where the incompetent resides or where his
guardianship are prayed. property is situated. [Rule 93, Sec. 8]

• The petition shall be verified; but no defect in GUARDIAN’S BOND

the petition or verification shall render void the
issuance of letters of guardianship. [Rule 93, • Before an appointed guardian enters upon the
Sec. 2] execution of his trust, or letters of guardianship
issue, he shall give a bond. [Rule 94, Sec. 1]
HEARING • Conditions on the bond: [Rule 94, Sec. 1]
1) To make and return, within 3 months, the
• When a petition is filed, the court shall fix a estate’s inventory;
time and place for hearing. The court shall 2) To faithfully execute the duties of his trust,
cause notice to be given to the persons to manage and dispose of the estate
mentioned in the petition residing in the according to ward’s best interests, and to
province, including the incompetent himself. provide for the ward’s proper
[Rule 93, Sec. 3] care/custody/education;
• Notice to the ward’s relatives is a jurisdictional 3) To account for the estate and all
requirement. [Yangco v. CFI] proceeds/interest derived therefrom;
4) At the expiration of his trust, to settle his
OPPOSITION [Rule 93, Sec. 4] accounts with the court and deliver the
• Any interested person may file a written remaining estate to the person lawfully
opposition and pray that: entitled thereto;
1) Petition be dismissed; 5) To perform all court orders.
2) Letters of guardianship issue to himself or • In case of breach of the bond’s conditions, the
to any suitable person named in the bond may be prosecuted in the same
opposition. proceeding or in a separate action, for the use
• Grounds for opposition: and benefit of the ward or of any person legally
1) Competency of the alleged incompetent; interested in the estate. [Rule 94, Sec. 3]
2) Unsuitability of the person for whom letters
are prayed. NEW BOND
• Whenever necessary, the court may require a
CONSIDERATIONS IN THE CHOICE OF THE new bond to be given by the guardian. After
GUARDIAN [Francisco v. CA (1984)] notice to interested persons, the sureties on
• The court may consider the financial situation, the old bond may then be discharged from
the physical condition and sound judgment, further liability when no injury will result to
prudence and trustworthiness, the morals, interested parties. [Rule 94, Sec. 2]
character and conduct, and the present and
past history of a prospective appointee, as well GUARDIAN’S GENERAL POWERS AND
as the probability of his being able to exercise
the powers and duties of a guardian for the full
period during which guardianship will be
1) To pay the ward's just debts out of:
a) the personal estate and the real estate’s
• The courts should not appoint as a guardian
any person who is not personally subject to
b) if insufficient, the real estate (upon
their jurisdiction (e.g. non-residents).
obtaining court order). [Rule 96, Sec. 2]
[Guerrero v. Teran]
2) To settle all the ward’s accounts;
• The best interests of a ward can override
demand/sue/receive for all debts due the ward,
procedural rules and even the rights of parents
or for the same and give discharges to the
to the custody of their children.
debtor, on receiving a fair and just dividend of
• A person who is incompetent to act as an
the estate and effects; and appear for the ward
executor/administrator does not necessarily
in all actions/proceedings, unless another
need to be placed under guardianship. But if a
person is appointed for that purpose. [Rule 96,
person is incompetent to act as executor or
Sec. 3]
administrator, then he is not the incompetent
3) To manage the ward’s estate frugally and
person envisaged in the law of guardianship.
without waste; apply the income/profits to the
[Lopez Vda. De Baluyot v. Ines-Luciano (1976)]
comfortable and suitable maintenance of the
ward and his family; and if the income/profits
are insufficient, sell/encumber the real estate
• The alleged incompetent must be present at
(upon court authorization). [Rule 96, Sec. 4]
the hearing, if able to attend. It must also be
• If the guardian delegates his duties to
shown that the required notice was given. The
another, he shall be responsible for the
court shall then hear parties’ evidences. If the

100% UP LAW UP BAROPS 2008 Page 108 of 227


other’s actions in the premises and for any 2) If it appears that it is for the ward’s benefit
resulting loss. [Zubeldia v. Hermanos] that his real estate (or part thereof) be
• Exception: If he shows that he used sold/encumbered and the proceeds put out
reasonable care and discretion in the at interest or invested.
manner of selecting those whom he • The grounds enumerated in this section are
employs. exclusive. No order will be issued for another
4) To render an inventory of the ward’s estate purpose not found in this rule. Sale of the
within 3 months after his appointment; and an ward’s realty without court order is void. [Inton
inventory and account annually after the v. Quintana]
appointment. [Rule 96, Sec. 7] • The guardian may file a verified petition with
• The inventory and account may be the court which appointed him. The petition
compelled upon the application of an shall set forth the grounds, and pray for
interested person. authorization of the sale/encumbrance.
• The inventories and accounts shall be
sworn to by the guardian. SHOW CAUSE ORDER [Rule 95, Sec. 2]
• All the estate described in the first • If it seems probable that the sale/encumbrance
inventory shall be appraised. The court is necessary/beneficial, the court shall direct
may request the assistance of inheritance the ward’s next of kin and all interested
tax appraisers. persons to appear and show cause why the
• If any property of the ward not included in petition should not be granted.
an inventory already rendered is • Next of kin - Relatives whose relationships
discovered/acquired by the ward, like are such as to entitle them to shares in the
proceedings shall be had for inventory and estate as distributes. [Lopez v. Teodoro]
appraisement within 3 months.
5) The court may authorize the guardian to join in HEARING [Rule 95, Sec. 3]
an assent to an estate partition held by the • At the time and place designated in the show
ward jointly or in common with others. The cause order, the court shall hear evidences and
authority shall only be granted after hearing, grant/refuse the petition’s prayer as the ward’s
notice to the ward’s relatives, and a careful best interests require.
investigation as to the proposed action’s
necessity/propriety. [Rule 96, Sec. 5] ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4]
6) Upon complaint of the guardian/ward or any • After full examination, if it appears that it is
person interested in the ward’s estate, that necessary/beneficial to the ward to
anyone is suspected of having sell/encumber the estate (or some portion of
embezzled/concealed/conveyed away any of it), the court shall order the sale/encumbrance.
the ward/estate’s property, the court may cite • Contents of the order:
the suspected person to appear for examination 1) That the proceeds be expended for the
and may order to secure the estate. [Rule 96, maintenance of the ward and his family, or
Sec. 6] put out at interest, or invested;
• Purpose: To secure evidence from persons 2) Specific causes why the sale/encumbrance
suspected of embezzling, concealing or is necessary/beneficial;
conveying away any property of the ward 3) May direct that estate be disposed of at
so as to enable the guardian to institute the either public or private sale, subject to
appropriate action to obtain possession of conditions on time and manner of payment
and secure title to the property. [Cui v. and security.
Piccio] • The guardian’s original bond shall stand as
7) Upon the expiration of a year from his security for the proper appropriation of the
appointment, and as often thereafter as sale’s proceeds; but the judge may require an
required, the guardian must present his additional bond as a condition for the granting
account to the court for settlement and of the order of sale.
allowance. [Rule 96, Sec. 8] • The order of sale cannot continue in force for
• A non-parent guardian is allowed the more than 1 year without a sale being had.
amount of his reasonable expenses • The court may authorize and require the
incurred in the execution of his trust, plus guardian to invest the sale/encumbrance’s
just compensation for his services, not proceeds or the ward's money, for the best
exceeding 15% of the ward’s net income. interest of all concerned. The court may make
• Extra allowance may be made in each other orders for the
case as the importance and difficulty of management/investment/disposition of the
the management of the estate may estate and effects. [Rule 95, Sec. 5]
require. [Ramos v. PNB (1957)] • This seeks to protect the ward’s funds
• A guardian may be imprisoned for failure to against imprudent or unsafe investments
render his account and ordered to deliver by the guardian. [Philippine Trust Co. v.
the estate to his successor. [Doronila v. Ballesteros]
Lopez] • The guardian cannot acquire by purchase, even
at a public or judicial auction, the property of
• If the authority to sell was obtained under
suspicious circumstances indicative of fraud
and collusion, the guardian’s sale may
PETITION [Rule 95, Sec. 1]
subsequently be annulled by the court.
• Grounds for the petition:
[Mendoza v. Labrador] However, the
1) If the estate’s income is insufficient to
cancellation of the guardian’s authority to sell
maintain the ward and his family;
will not affect the buyer’s rights. [Margate v.

100% UP LAW UP BAROPS 2008 Page 109 of 40


• Appeal is the proper remedy against a court • ANCILLARY GUARDIANSHIP -

order authorizing the sale of the ward’s Guardianship in a state other than that in
property. [Lopez v. Teodoro (1950)] which guardianship is originally granted
and which is subservient and subsidiary to
GUARDIANSHIP’S TERMINATION the later. [Johannes v. Harvey]
• After filing of petition, notice and hearing, if the
GROUNDS FOR TERMINATION court is satisfied that the nonresident is an
1) If the incompetent is no longer incompetent. incompetent rendering a guardian
[Rule 97, Sec. 1] necessary/convenient, it may appoint a
• The person who was declared incompetent, guardian for the non-resident’s estate. [Rule
or his guardian/relative/friend, may petition 93, Sec. 6]
the court to have his present competency
judicially determined.
• The petition shall be verified by oath, and
shall state that the subject person is then
• Upon receipt of the petition, the court shall
fix the time for hearing, and cause notice to
be given to the guardian and the ward.
• On the trial, the guardian, the relatives and
(court’s discretion) any person may contest
the right to the relief demanded. Witnesses
may be called and examined by the parties
or by the court. If it is found that the
person is no longer incompetent, his
competency shall be adjudged and
guardianship shall cease.
2) If the incompetent dies.
3) If the guardian: [Rule 97, Sec. 2]
a) becomes insane or incapable/unsuitable of
discharging his trust;
b) wasted/mismanaged the estate;
c) failed for 30 days after it is due to render
an account or make a return;
d) resigns.
• Upon notice to the guardian, the court may
remove him and compel him to surrender
the ward’s estate to the person lawfully
entitled to it.
• An order removing a guardian is an order
constituting a final determination of his
rights. Hence, the guardian may appeal.
[Olarte v. Enriquez (1960)]
• A guardian may resign if it appears proper
to allow him.
• Upon the guardian’s resignation/removal,
the court may appoint another in his place.
4) If it appears that the guardianship is no longer
necessary, the court may discharge the
guardian. [Rule 97, Sec. 3]

• The court which appointed the guardian is also

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


• The guardian of a nonresident’ estate has

management of all the ward’s estate within the
Philippines. [Rule 96, Sec. 1]
• Only the court which appointed the non-
resident’s guardian has jurisdiction over the
guardianship. [Rule 96, Sec. 1]

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IV. TRUSTEES • Rule 98 applies only to express trusts under

CC. [Regalado]
• Express trust on an immovable, or interests in
it, may not be proved by parole evidence. [Art.
TRUSTEES UNDER RULE 98 • While an implied trust may be established
by parol evidence, an express trust cannot.
Even then, an implied trust cannot be
Allowance of the instrument creating the trust
established upon vague and inconclusive
proof. [Heirs of Lorenzo Yap v. CA (1999)]
• No particular words are required to create an
express trust. It is sufficient that a trust is
Petition by the executor/administrator or the clearly intended. [Art. 1444, CC]
person appointed as trustee in the instrument • The right creating/declaring a trust need
not be contemporaneous or inter-parties.
An express trust may even be declared by
a writing made after the legal estate has
Appointment of trustee by the court vested in the trustee. The fact that an
express trust was created by a deed which
was absolute on its face may be shown by
a writing separate from the deed itself. [De
Leon v. Molo-Peckson (1962)]
Notice to all interested parties • A trust shall not fail because the trustee
appointed declines. [Art. 1445, CC]
• Exception: The contrary appears in the
instrument constituting the trust.
• Beneficiary’s acceptance is necessary. But if the
Filing of bond by the trustee
trust does not impose any onerous condition on
the beneficiary, his acceptance is presumed;
Exception: If there is contrary proof. [Art.
1446, CC]
• General rule: A voluntary trust is irrevocable
without the consent of the beneficiary. [De
• The legal relationship between a person having
Leon v. Molo-Peckson (1962)]
an equitable ownership in the property and
• Exception: If the power to revoke was
another person owning the legal title to the
property; the equitable ownership of the former
entitles him to performance of certain duties
and the exercise of certain powers by the VENUE [Rule 98, Sec.1]
latter. [Saltiga v. CA (1999)]
• DECLARATION OF TRUST – Act by which a • If a trustee is necessary to carry into effect a
person acknowledges that the property, title to will/instrument, the trustee shall be appointed
which he holds, is held by him for the use of by the RTC where:
another. [De Leon v. Molo-Peckson (1962)] 1) the will was allowed; or
2) the property was located.
2) Trustee
3) Beneficiary (cestui que trust) • If testator omitted appointment of trustee, the
court may appoint a trustee. That trustee shall
KINDS OF TRUST [Saltiga v. CA (1999)] have the same rights, powers and duties as if
1) EXPRESS – Created by parties’ direct and he was appointed by the testator. [Rule 98,
positive acts; by some writing/words Sec. 2]
evidencing an intention to create a trust. • The power to appoint a trustee is discretionary
2) IMPLIED – Deducible from the nature of the with the court, and the appellate court will
transaction as matters of intent; or decline to interfere except in cases of clear
superinduced on the transaction by operation abuse. Thereafter, it is likewise the discretion
of law as a matter of equity, independently of of the court to remove the trustee. [Tiangco v.
the parties’ particular intention. Francisco]
a) RESULTING TRUSTS – Based on equity
that valuable consideration (and not title) SUCCESSOR TRUSTEES
determines the equitable title/interest, and • If the trustee declines/resigns/dies or is
are presumed always to have been removed before the trust’s objects are
contemplated by parties. accomplished, and there is no adequate
b) CONSTRUCTIVE TRUSTS – Created by provision in the instrument creating the trust,
the construction of equity in order to satisfy the court may appoint a new trustee to act
the demands of justice and prevent unjust alone or jointly with others. That trustee shall
enrichment. They arise contrary to have the same rights, powers and duties as if
intention against one who fraudulently he was originally appointed. The court may
obtains/holds the legal right to property order former/remaining trustees to convey the
which he should not, in equity, hold. estate to him. [Rule 98, Sec. 3]
• A person succeeding to a trust (as the former
SCOPE AND APPLICABILITY trustee’s executor/administrator) is not
required to accept the trust. [Rule 98, Sec. 2]

100% UP LAW UP BAROPS 2008 Page 111 of 40



AUTHORITY – The powers of a trustee • If the trustee’s compensation is not determined
appointed by a Philippine court cannot extend in the instrument creating the trust, it shall be
beyond the confines of the Philippine territory. fixed by the court. [Rule 98, Sec. 7]
• Proceedings if the trustee is appointed abroad:
Philippine land is held in trust for Philippine 98, Sec. 8]
residents, by a trustee who derives authority from
outside the Philippines
• Grounds for removal of a trustee:
1) If essential to the interests of the party
petitioning the removal;
Petition filed in the RTC of the province where the • Requires petition of a beneficially
land is situated interested person, notice to trustee and
2) If trustee becomes insane or otherwise
incapable/unsuitable of discharging the
Notice to all interested parties trust;
• Requires notice to all interested parties.
3) If trustee assumes to be possessing in his
own right and thus renounces the trust.
Trustee is ordered by the court to apply for [Martinez v. Grano]
appointment • General Rule: A trustee cannot
acquire the trust estate by prescription
• If trustee fails to comply with the court order, because for the purpose of prescription,
the court will declare the trust vacant and the possession of the property by the
appoint a new trustee. The trust shall vest in trustee is not an adverse possession,
the new trustee as if he was originally but only a possession in behalf of the
appointed. owner of the same. [Palma v. Cristobal]
• Exception: If there is an open,
clear and unequivocal repudiation
TRUSTEE’S BOND [Rule 98, Sec.5]
of the trust, and the beneficiary
knows of the repudiation. [Salinas
• Before entering his duties, a trustee must file a
v. Tuazon]
bond with the COC in an amount fixed by the
• A trustee may resign if it is proper for the court
court, payable to the Philippine government
to allow him, whether the trustee was ppointed
and sufficient and available to protect any party
by the court or by a will.
in interest.
• Failure to file bond is considered as
decline/resignation of the trust. TRUSTEE VS.
• Court may exempt from giving bond: EXECUTOR/ADMINISTRATOR
1) A trustee under a will, if the testator so
directed/requested; or Trustee Executor/
2) Any trustee, if all persons beneficially Administrator
interested are of full age and request the Holds an office of trust Holds an office of trust
exemption. Duties may cover a wider Duties are fixed and/or
range, and are usually limited by law
• The court may cancel the bond exemption
governed by the intention
anytime; the trustee shall then file the bond. of the trustor or the
parties (if established by
[Araneta v. Perez (1962)]
• Conditions upon the bond, WON written: [Rule
1) To make and return the estate’s inventory; Sec. 9]
• Exception: If inventory was already
filed, succeeding trustees need not file. • If estate’s sale/encumbrance is
• Court may order inheritance tax necessary/expedient, court may order such
appraisers to assist in the appraisal of sale/encumbrance and
the estate. [Rule 98, Sec. 7] reinvestment/application of the proceeds.
2) To manage the estate and faithfully • Proceedings shall conform as much as possible
discharge his trust; with the provisions on a guardian’s
3) To render an accounting under oath, once a sale/encumbrance of a ward’s properties.
year until the trust is fulfilled;
• Exception: If excused by the court in
any year.
4) To settle his accounts in court and deliver
the remaining estate to those entitle, at the
trust’s expiration.
• It is the trustee’s duty to deliver the
properties to the beneficiary free from
all liens and encumbrances. [De Leon
v. Molo-Peckson (1962)]

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V. ADOPTION exceeding 60 days in 1 year does not break the

continuity requirement.
14) ALIEN – Any person, not a Filipino citizen, who
enters and remains in the Philippines and is in
DEFINITION [Sec. 3, Rule on Adoption] possession of a valid passport or travel
documents and visa.
1) CHILD – Person below 18 years of age at the
time of the filing of the petition for adoption. NATURE OF PROCEEDING
ADOPTION – Child who was in/voluntarily
• Adoption is a juridical act which created
committed to DSWD or to a duly licensed and
between two persons a relation similar to that
accredited child-placing/child-caring agency,
which results from legitimate filiation. [Prasnick
freed of the parental authority of his biological
v. Republic]
parents, or in case of rescission of adoption, his
• Adoption is a privilege — not innate or
fundamental, but rather a right created by
statute. It is a privilege which is governed by
whose parents knowingly and willingly
the state’s determination of what is for the best
relinquish parental authority over him in favor
welfare of the child. [Lahum v. Sibulo (2003)]
of DSWD.
whose parents have been permanently and
• Adoption is not an adversarial proceeding since
judicially deprived of parental authority over
it has no particular defendant. [Republic v.
him due to abandonment;
Elepano (1991)]
substantial/continuous/repeated neglect and
• No court may entertain it unless it has
abuse; or incompetence to discharge parental
jurisdiction over the parties and the res – the
personal status of the parties.
5) FOUNDLING – A deserted/abandoned
• Constructive notice is enough where the
infant/child whose parents/guardian/relatives
residence of the parents unknown. When the
are unknown; or a child committed to an
parent has abandoned the child to be adopted,
orphanage/institution with unknown facts of
notice to the former is not required. [Santos v.
birth and parentage and registered in the Civil
Arazanso, (1966)]
Register as a “foundling.”
6) ABANDONED CHILD – One who has no
proper parental care or guardianship or whose A. DOMESTIC ADOPTION
parents deserted him for at least 6 continuous
months and was judicially declared as such.
parent/guardian/custodian, or whose
UNDER AM-02-6-02-SC
parents/guardian/custodian for good cause
desires to be relieved of his care and custody
and is dependent upon the public for support. Petition for domestic adoption
8) NEGLECTED CHILD – One whose basic needs
have been deliberately unattended or
inadequately attended to by his Order of hearing by the court
9) CHILD STUDY REPORT – Study made by the
court social worker of the child’s legal status,
placement history, psychological, social, Child and home study reports by the social worker
spiritual, medical, ethno-cultural background
and that of his biological family needed in
determining the most appropriate placement Hearing on the petition for adoption
for him.
10) HOME STUDY REPORT – Study made by the
court social worker of the motivation and
capacity of the prospective adoptive parents to Supervised trial custody
provide a home that meets the needs of a
11) SUPERVISED TRIAL CUSTODY – Period Adoption decree issued by the court
during which a social worker oversees the
adjustment and emotional readiness of both
adopters and adoptee in stabilizing their filial
12) SIMULATION OF BIRTH – Tampering of the
civil registry to make it appear in the birth • The Rule on Adoption [AM-02-6-02-SC (July
records that a certain child was born to a 31, 2002)] expressly repealed Rules 99 and
person who is not his biological mother, thus 100. [Sec. 25, Rule on Adoption]
causing such child to lose his true identity and • RA 8552 (Domestic Adoption Act) governs the
status. domestic adoption of Filipino children. [Sec. 1,
13) RESIDENCE – A person’s actual stay in the Rule on Adoption]
Philippines for 3 continuous years immediately
prior to the filing of a petition for adoption and OBJECTIVES [Sec. 2, Rule on Adoption]
which is maintained until the adoption decree is
entered. Temporary absences for professional,
business, health, or emergency reasons not

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1) The child’s best interest is the paramount QUALIFIED ADOPTEES [Sec. 5, Rule on
consideration in the child’s Adoption]
2) The State shall provide alternative protection 1) Any person below 18 years of age who was
and assistance to foundlings, neglected, voluntarily committed to DSWD or judicially
orphaned and abandoned children. declared available for adoption;
2) The legitimate child of one spouse, by the other
QUALIFIED ADOPTERS [Sec. 4, Rule on spouse;
Adoption] 3) An illegitimate child, by a qualified adopter to
raise the status of the former to that of
1) Any Filipino citizen: legitimacy;
a) of legal age; 4) A person of legal age regardless of civil status,
b) in possession of full civil capacity and legal if, prior to the adoption, said he was
rights; consistently considered and treated by the
c) of good moral character; adopters as their own child since minority;
d) has not been convicted of any crime 5) A child whose adoption was rescinded;
involving moral turpitude; 6) A child whose biological/adoptive parents died.
e) who is emotionally and psychologically But no proceedings shall be initiated within 6
capable of caring for children; months from the time of the parents’ death;
f) at least 16 years older than the adoptee; 7) A child not disqualified by law or these rules.
• Exception: when the adopter is:
(1) the adoptee’s biological parent; VENUE [Sec. 6, Rule on Adoption]
(2) the spouse of the adoptee’s parent.
g) who is in a position to support and care for • Family Court of the province/city where the
his children in keeping with the means of prospective adoptive parents reside.
the family.
2) Any alien:
a) possessing the same qualifications as
b) whose country has diplomatic relations with
7, Rule on Adoption]
the Philippines;
1) Adoptee’s first name, surname or names, age
c) who has been living in the Philippines for at
and residence as shown by his birth record,
least 3 continuous years prior to the filing
baptismal/foundling certificate and school
of the petition for adoption and maintains
such residence until the adoption decree is
2) That the adoptee is not disqualified by law;
3) Adoptee’s estate’s value and character;
d) certified by his diplomatic/consular office to
4) First name, surname or names by which the
have the legal capacity to adopt in his
adoptee is to be known and registered in the
Civil Registry.
e) whose government allows the adoptee to
enter his country as his adopted child.
• Residency and certification requirements on
alien may be waived for:
specific allegations
(1) a former Filipino citizen who seeks to
adopt a relative within the 4th degree If Filipino adopter a) Jurisdictional facts
of consanguinity/affinity; b) Adopter's qualifications
c) That adopter has
(2) one who seeks to adopt the legitimate
undergone pre-adoption
child of his Filipino spouse; services
(3) one who is married to a Filipino citizen
and seeks to adopt jointly with his
If alien adopter a) Jurisdictional facts
spouse a relative within the 4th degree b) Adopter's qualifications
of consanguinity/affinity of the Filipino
spouse. If guardian-adopter Adopter's qualifications
3) The guardian with respect to the ward, after
If foundling-adoptee Entries which should appear
the termination of the guardianship and
in the birth certificate
clearance of his financial accountabilities.
If petition also prays for a) Child's registered name
JOINT ADOPTION BY SPOUSES change of name b) Aliases or other names
• General rule: Husband and wife shall jointly by which the child has
adopt. been known
• Exception: c) The full name by which
1) If one spouse seeks to adopt the the child is to be known
legitimate child of the other spouse;
2) If one spouse seeks to adopt his own
illegitimate child; provided the other
spouse consented;
3) If the spouses are legally separated.
• If the spouses jointly adopt or one spouse
adopts the illegitimate child of the other, joint
parental authority shall be exercised by the

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If petition for rectification a) That it is an application • If the petition and attachments are sufficient in
of simulated birth for rectification of a form and substance, the court shall issue an
simulated birth order.
b) That the simulation was • Order’s contents:
made prior to the
1) Adoptee’s registered name in the birth
effectivity date of RA
8552, and that the certificate, and the names by which the
application for adoptee has been known (to be stated in
rectificaion and the the caption);
petition for adoption 2) Petition’s purpose;
were filed within 5 years 3) Complete name which the adoptee will use
from that date if the petition is granted;
c) That the petitioner made 4) Hearing’s date and place of hearing (within
the simulation for the
6 months from the date of the order’s
adoptee's best interests
d) That the adoptee was issuance)
consistently considered • Copy of the order shall be published at
and treated by petitioner least once a week for 3 successive
as his own child weeks before the hearing, in a
newspaper of general circulation in the
If petition for adoption of a) Facts showing that the province/city where the court is
foundling, abandoned, child is a foundling, situated.
dependent or neglected abandoned, dependent • If the application is for change of name,
children or neglected
the hearing shall not be within 4
b) Parents' names and
residence, if known, and months after the last publication of the
their residence. If notice nor within 30 days prior to an
unknown, then those of election.
the guardian 5) Directive to the social worker to prepare
c) Name of the duly and submit child and home study reports
licensed child-placement before the hearing, if such reports were not
agency or individual who attached to the petition due to
has care and custody of
unavailability at the time of the filing; and
the child
d) That the DSWD/agency 6) Directive to the social worker to conduct
is authorized to give its counseling sessions with the biological
consent parents and to submit a report before the
• Court has discretion to furnish copies of the
order to OSG, DSWD and the adoptee’s
PETITION’S ANNEXES [Sec. 11, Rule on Adoption] biological parents.
1) Birth/baptismal/foundling certificate and school • If a change in the adoptee’s name is prayed
records, showing adoptee’s name, age and for, notice to OSG is mandatory.
2) Affidavit of consent of: CHILD AND HOME STUDY REPORTS [Sec.
a) The adoptee, if 10 years of age or over; 13, Rule on Adoption]
b) The child’s biological parents or legal
guardian, child-placement/child-caring • The social worker shall verify with the Civil
agency or proper government agency; Registry the adoptee’s real identity and
c) The adopter’s and the adoptee’s legitimate registered name. If the adoptee’s birth was not
and adopted children who are 10 years of registered, the social worker shall register the
age or over; adoptee and secure a certificate of foundling or
d) The adopter’s illegitimate children living late registration.
with him who are 10 years of age or over; • The social worker shall establish that:
e) The adopter’s and the adoptee’s spouses. 1) the child is legally available for adoption;
3) Child study report on the adoptee and his 2) the documents in support thereof are valid
biological parents; and authentic;
4) If petitioner is an alien, certification by his 3) that the adopter has sincere intentions;
diplomatic/consular office that he has the legal 4) that the adoption shall inure to the child’s
capacity to adopt in his country and that his best interests.
government allows the adoptee to enter his • If the adopter is an alien, the home study
country as his own adopted child unless report must show:
exempted under Sec.4(2); 1) his legal capacity to adopt;
5) Home study report on the adopters. If the 2) that his government allows the adoptee to
adopter is an alien or residing abroad but enter his country as his adopted child in the
qualified to adopt, the home study report by a absence of the certification required under
foreign adoption agency duly accredited by the Sec. 7(b), RA 8552.
Inter-Country Adoption Board; and • If the social worker finds that there are
6) Decree of annulment, nullity or legal separation grounds to deny the petition, he shall make the
of the adopter and of the adoptee’s biological proper recommendation to the court, with copy
parents, if any. furnished the petitioner.

ORDER OF HEARING [Sec. 12, Rule on HEARING [Sec. 14, Rule on Adoption]
• Upon satisfactory proof of publication and
jurisdiction, the court shall hear the petition.

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The petitioner and the adoptee must personally 1) Name by which the child is to be known and
appear. The petitioner must testify. registered;
• The court shall verify from the social worker to: 2) Order for the COC to issue to the adopter a
1) determine WON the biological parent was certificate of finality upon expiration of the 15-
properly counseled against making hasty day reglementary period for appeal;
decisions caused by strain/anxiety to give 3) Order for the adopter to submit a certified true
up the child; copy of the adoption decree and the certificate
2) ensure that all measures to strengthen the of finality to the Civil Registrar where the child
family have been exhausted; was originally registered, within 30 days from
3) ascertain if any prolonged stay of the child receipt of the certificate of finality. In case of
in his own home will be inimical to his change of name, the decree shall be submitted
welfare and interest. to the Civil Registrar where the issuing court is
SUPERVISED TRIAL CUSTODY [Sec. 15, Rule 4) Order for the Civil Registrar of the place where
on Adoption] the adoptee was registered:
a) to annotate on the adoptee’s original birth
• Before issuance of the adoption decree, the certificate the adoption decree, within 30
court shall give the adopter trial custody of the days from receipt of the certificate of
adoptee for at least 6 months. Within this finality;
period, the parties are expected to adjust b) to issue a birth certificate which shall not
psychologically and emotionally to each other bear any notation that it is a new/amended
and establish a bonding relationship. certificate;
• The trial custody shall be monitored by the c) to seal the original birth certificate in the
social worker who submitted and prepared the civil registry records, which can be opened
case studies. only upon order of the court which issued
• During the period, temporary parental authority the adoption decree;
shall be vested in the adopter. d) to submit to the court issuing the adoption
• Where the trial custody had not yet begun decree proof of compliance within 30 days
or had already been completed at the time from receipt of the decree;
of a quasi-delict committed by the child to e) If the adoptee is a foundling, to annotate
be adopted, the adopting parents cannot the adoption decree on the foundling
assume any liability therefor. Accordingly, certificate.
his natural parents should be joined as
indispensable parties to the suit for CONFIDENTIALITY OF PROCEEDINGS AND
damages. [Tamargo v. CA (1992)] RECORDS [Sec. 18, Rule on Adoption]
• The court may reduce the period or exempt the
parties if it finds that the same shall be for the • After compliance with jurisdictional
adoptee’s best interests. requirements, all adoption hearings shall be
• General rule: An alien adopter must complete confidential and shall not be open to the public.
the 6-month trial custody. All related records shall be kept strictly
• Exception: confidential.
1) A former Filipino citizen who seeks to • If the court finds that disclosure to a 3rd
adopt a relative within the 4th degree; person is necessary for security reasons or for
2) One who seeks to adopt the legitimate purposes connected with or arising out of the
child of his Filipino spouse; adoption and will be for the adoptee’s best
3) One who is married to a Filipino citizen interests, the court may order the necessary
and seeks to adopt jointly with his information to be released, restricting the
spouse the latter’s relative within the purposes for which it may be used.
4th degree.
• If the child is below 7 years of age and is
placed with the prospective adopter through a
DSWD pre-adoption placement authority, the
• Adoption may not be rescinded by the adopter;
court shall order that the prospective adopter
but he may disinherit the adoptee under Art.
shall enjoy all the benefits to which the
919, CC. [Sec. 19, Rule on Adoption]
biological parent is entitled from the date the
• Rationale: Adoption is for the child’s best
adoptee is placed with him.
• The social worker shall submit to the court a
report on the result of the trial custody within 2
weeks after its termination.
ADOPTION DECREE [Sec. 16, Rule on 1) repeated physical and verbal maltreatment
Adoption] despite having undergone counseling;
2) attempt on the adoptee’s life;
• If the supervised trial custody is satisfactory to 3) sexual assault/violence;
the parties, the court is convinced from the trial 4) abandonment or failure to comply with parental
custody report and the evidence that the obligations.
adoption shall redound to the adoptee’s best
interests, an adoption decree shall be issued. VENUE [Sec. 20, Rule on Adoption]
• The adoption decree shall take effect as of the • Family Court of the city/province where the
date the original petition was filed, even if the adoptee resides.
petitioners die before its issuance.
ADOPTION DECREE’S CONTENTS [Sec. 19, Rule on Adoption]

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• The adoptee who is over 18 years of age. cannot be placed in a foster/adoptive family or
• With the assistance of: cannot be cared for in the Philippines;
1) DSWD, if he is a minor; 2) To ensure that the child enjoys the same
2) His guardian/counsel, if he is over 18 years protection accorded to children in domestic
of age but is incapacitated. adoption;
3) To ensure that the placement does not result in
WHEN TO FILE THE PETITION FOR RESCISSION improper financial gain for those involved.
[Sec. 21, Rule on Adoption]
• Within 5 years: QUALIFIED ADOPTEES [Sec. 29, Rule on
1) After reaching the age of majority, if the Adoption]
adoptee is incapacitated;
2) After recovery from incompetency, if the • Only a child legally available for domestic
adoptee is incompetent. adoption may be the subject of inter-country
ORDER TO ANSWER [Sec. 22, Rule on Adoption]
• The court shall order the adverse party to
VENUE [Sec. 28, Rule on Adoption]
answer the petition within 15 days from
receipt of a copy thereof.
1) Family Court having jurisdiction over the place
where the child resides or may be found.
JUDGMENT [Sec. 23, Rule on Adoption]
2) Directly with the Inter-Country Adoption Board.
• If the court finds that the petition’s allegations
are true, it shall order the rescission of
• The court shall order that:
1) The biological parents’ parental authority, PETITION’S CONTENTS [Sec. 30, Rule on Adoption]
or the DSWD’s legal custody, shall be 1) Age of the petitioner and of the child to be
restored if the adoptee is still a adopted, showing that petitioner is at least 27
minor/incapacitated. years of age and at least 16 years older than
2) The reciprocal rights and obligations of the the child at the time of application;
adopter and the adoptee shall be • Exception: If the petitioner is the child’s
extinguished. biological parent or the spouse of such
3) The successional rights shall revert to its parent.
status prior to adoption, as of the date of 2) If petitioner is married, the name of the spouse
judgment of judicial rescission. Vested who must be joined as co-petitioner;
rights acquired prior to judicial rescission • Exception: If the adoptee is the spouse’s
shall be respected. legitimate child.
4) The adoptee shall use the name stated in 3) Petitioner’s capacity to act and assume all
his original birth/foundling certificate. rights and responsibilities of parental authority
5) The Civil Registrar where the adoption under his national laws, and that he has
decree was registered shall cancel the new undergone the appropriate counseling from an
birth certificate of the adoptee and accredited counselor in his country;
reinstate his original birth/foundling 4) Non-conviction of crimes involving moral
certificate. turpitude;
5) Eligibility to adopt under his national law;
SERVICE OF JUDGMENT [Sec. 24, Rule on 6) That he can provide the proper care and
Adoption] support and instill the necessary moral values
• A certified true copy of the judgment and a and example to all his children, including the
certificate of finality shall be served by the child to be adopted;
petitioner upon the Civil Registrar within 30 7) That he agrees to uphold the basic rights of the
days from receipt of the certificate of finality. child;
The Civil Registrar shall enter the rescission 8) That he comes from a country with which the
decree in the register and submit proof of Philippines has diplomatic relations and whose
compliance to the court within 30 days from government maintains a similarly authorized
receipt of the decree. and accredited agency; and that adoption of a
Filipino child is allowed under his national laws;
9) That he possesses all the qualifications and
B. INTER-COUNTRY none of the disqualifications provided in this
ADOPTION Rule, in RA 8043 and other Philippine laws.

SCOPE AND APPLICABILITY [Sec. 26, Rule PETITION’S ANNEXES [Sec. 31, Rule on Adoption]
1) Petitioner’s birth certificate;
on Adoption]
2) Marriage contract, divorce decree or judgment
dissolving the marriage;
• RA 8043 (Inter-Country Adoption Act) governs
3) Sworn statement of consent of petitioner’s
the adoption of Filipino children by:
biological/adopted children above 10 years of
1) Foreign nationals;
2) Filipino citizens permanently residing
4) Physical, medical and psychological evaluation
of the petitioner certified by a duly licensed
physician and psychologist;
OBJECTIVES [Sec. 27, Rule on Adoption] 5) Income tax returns or any authentic document
showing the petitioner’s current financial
1) To consider inter-country adoption as an capability;
alternative means of child care, if the child 6) Police clearance issued within 6 months before
the filing of the petition;

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7) Character reference from the local VI. HOSPITALIZATION OF

church/minister, the petitioner’s ER and a
member of the immediate community who INSANE PERSONS
have known the petitioner for at least 5 years;
8) Full body postcard-size pictures of the
petitioner and his immediate family taken at PROCEDURE IN THE HOSPITALIZATION
least 6 months before the filing of the petition.
Petition for commitment filed in RTC
• If the court finds that petition is sufficient in
form and substance and that there is a proper
case for inter-country adoption, it shall
transmit the petition to the Inter-Country Court order fixing the date and place for hearing
and ordering the sheriff to produce the alleged
Adoption Board. [Sec. 32, Rule on Adoption] insane person in the hearing
• An adoption created under the law of a foreign
country is entitled to registration in the
corresponding civil register of the Philippines.
The effects of such adoption shall be governed Service of notice of the court order to the alleged
by the law of the Philippines. [Marcaida v. insane person and to the person who has custody
Aglubat (1967)] of him/her

Hearing on the petition

Judgment granting/denying the petition


• Definition: Condition of the mind where it is

so impaired in function or so deranged as to
induce deviation from normal conduct in the
person so afflicted.


1 and 5]

• Petition is filed in the RTC of the province

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


101, Sec. 2-3]

1) The court shall fix a date and place for hearing

where all concerned may appear to contest the
2) Copies of the notice of hearing shall be served
a) The person alleged to be insane; and
b) The one having charge of him, or on such
of his relatives residing in the province/city
as the judge may deem proper.
3) The court shall order the sheriff to produce the
alleged insane person (if possible) on the date
of hearing.
4) Upon satisfactory proof that the commitment is
necessary and that his relatives are unable to
take proper custody and care of him, the court
shall order his commitment in a

100% UP LAW UP BAROPS 2008 Page 118 of 227


5) The court shall make proper provisions for the VII. ABSENTEES
custody of the ward’s property until a guardian
is properly appointed.


• To prove insanity, the burden is on the party
who alleges insanity. Petition for declaration of absence


Court order fixing the hearing for petition
• The Health Secretary may file a petition for the
discharge of the insane person in the RTC
which ordered the commitment when he is of
the opinion that the person is Notice and publication of the notice of hearing
permanently/temporarily cured or may be
released without danger. [Rule 101, Sec. 4]
• The Health Secretary cannot order release Hearing and appointment of administrator/trustee
without the approval of the RTC. [Chin Ah Foo
v. Concepcion]. On the other hand, the RTC
cannot order release without recommendation
from the Health Secretary. Termination of administration/trusteeship


• Rule 107 is proper only where the absentee has

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

[Rule 107, Sec. 1; Art. 381, CC]

• If a person disappears from his domicile, his

whereabouts is unknown, and there is no agent
left to administer his property or the agent’s
power has expired, any interested party may
petition for the appointment of the absentee’s



WHEN TO PETITION [Rule 107, Sec. 2; Art. 384,

1) After 2 years:
a) from the disappearance and without any
news about the absentee; or
b) since the receipt of the last news about
2) After 5 years, if he left an administrator of his

WHO MAY PETITION [Rule 107, Sec. 2; Art. 385,

1) Spouse present;

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2) Heirs instituted in a will; VIII. WRITS

3) Relatives who will succeed by intestacy;
4) Those who have some (over the absentee’s
property) subordinated to the condition of his
1) Jurisdictional facts;
2) Names/ages/residences of:
a) Heirs instituted in the will;
b) Relatives who would succeed by intestacy; Petition alleging illegal confinement/detention
3) Names/residences of creditors and others who
may have any adverse interest over the
absentee’s property;
Issuance of the writ by a court with jurisdiction
4) Absentee’s properties.


Service by leaving the original with the person to
whom the writ is directed and preserving a copy

• When a petition is filed, the court shall fix the

hearing’s date and place.
• Copies of the notice of hearing shall be served Hearing by the court
upon the known interested persons, at least 10
days before the hearing.
• Publish the notice of hearing once a week for 3 Recommitment, bail or discharge of the detained
consecutive weeks before the hearing, in a
newspaper of general circulation in the
province/city where the absentee resided.
Execution of the writ by conveying the detained
person before the court, with return of service

• Anyone appearing to contest the petition shall DEFINITION

state his grounds in writing, and serve a copy
on the other interested parties on or before the • HC WRIT – Writ directed to the person
hearing. [Rule 107, Sec. 5] detaining another and commanding him to
• Upon proof of notice, publication and the produce the body of the detained at a certain
petition’s allegations, the court shall grant the time and place, with the day and the cause of
petition and appointing the absentee’s his caption and detention, to do, to submit to
representative/trustee/administrator. [Rule and receive whatever the court shall consider in
107, Sec. 6] that behalf. [Bouvier’s Law Dictionary]
• The court shall safeguard the absentee’s rights • The HC writ is a speedy and effectual remedy
and interests and shall specify the to relieve persons from unlawful restraint, and
representative/trustee/administrator’s powers, is the best and only sufficient defense of
obligations and remuneration, regulating them personal freedom. It secures to a prisoner to
by the rules on guardians. [Rule 107, Sec. 6; have the cause of his detention examined and
Art. 382, CC] determined by a court of justice, and to have
• Declaration of absence takes effect 6 months the issue ascertained as to WON he is held
after its publication in a newspaper of general under lawful authority. [Feria v. CA (2000)]
circulation and in the OG. [Rule 107, Sec. 6;
Art. 386, CC] KINDS OF HC WRIT [Lee Yick Hon v. Insular
Collector of Customs]
REPRESENTATIVE/ADMINISTRATOR/TRUSTEE [Rule detained under governmental authority and the
107, Sec. 7; Art. 383, CC] illegality of his detention is not patent from the
1) The spouse present is preferred; petition for the writ, the court issues the
• Exception: If there is legal separation. citation to the government officer having
2) If the absentee has no spouse, or the spouse is custody to show cause why the HC writ should
a minor/incompetent, any competent person not issue.
2) PEREMPTORY WRIT – If the cause of the
TERMINATION detention appears to be patently illegal. Non-
compliance with this is punishable.
1) If the absentee appears personally or by agent; SCOPE AND APPLICABILITY
2) If absentee’s death is proved and heirs appear;
3) If a 3rd person appears, showing by a proper • HC writ extends to:
document that he has acquired the absentee's 1) All cases of illegal confinement/detention
property by title. by which any party is deprived of his
liberty. [Cruz v. CA (2000)]
• Administrator/trustee shall cease in the 2) If the rightful custody of a person is
performance of his office, and the property withheld from the one entitled to it.
shall be placed at the disposal of those who [Ilusorio v. Bildner (2000)]
may have a right to it.

100% UP LAW UP BAROPS 2008 Page 120 of 227


• General rule: HC writ shall not issue if court had jurisdiction. [Harden v. Director
the restraint is voluntary. [Kelly v. (1948)]
Director of Prisons] • HC writ is not intended as a substitute for the
• Exception: HC is a proper remedy functions of a trial court. In the absence of
to enable parents to regain custody exceptional circumstances, the orderly course
of a minor, even if the minor is in of trial should be pursued and the usual
the custody of a 3rd person of his remedies exhausted before the writ may be
own free will. [Tijing v. CA] invoked. HC writ is not ordinarily available in
• Rationale: Custody cases advance of trial to determine jurisdictional
involving minors are prosecuted errors that may arise. [Galvez v. CA (1994)]
to determine custody rights • HC writ may not be validly resorted to in lieu of
over a child. a lost/dismissed appeal. [In re: Azucena Garcia
3) If, as a consequence of a judicial (2000)]
proceeding: [Feria v. CA (2000)] • It is necessary that the court judgment which
a) There is deprivation of a constitutional resulted in the illegal deprivation of liberty is no
right resulting in the person’s restraint; longer appealable, in which case the writ is in
b) The court has no jurisdiction to impose the nature of a collateral attack against a final
the sentence; or but void judgment. [Chavez v. CA (1968)]
c) An excessive penalty was imposed,
because the sentence is void as to the HC PETITION
• A signed and verified petition must allege:
• The essential object of the HC writ is to inquire 1) Fact of confinement/detention;
into inbvoluntary restraint and to relieve the 2) By whom;
detained person. Thus, the restraint of liberty • If the restraining person is
must be an illegal and involuntary deprivation unknown/uncertain, use an assumed
of freedom of action which must be actual and appellation. But the person served is
effective, not merely nominal/moral. [Ilusorio deemed the person intended.
v. Bildner (2000)] 3) Where; and
• It is not physical restraint alone which is 4) Cause or commitment order (if it can be
inquired into by the HC writ. Any restraint procured without impairing HC writ’s
which will prejudice freedom of action is efficiency), or lack thereof.
sufficient ground. [Moncupa v. Enrile (1986)]
• Freedom may be lost due to external moral
compulsion, fear or erroneous belief in the
existence of the will. If the actual effect of
• General rule: If it appears that the writ should
such psychological spell is to plow a person
issue, the COC issues the writ under the court’s
at the mercy of another, the victim is
seal. [Rule 102, Sec. 5]
entitled to the courts’ protection as much
• Exception: In emergency cases, the judge
as an individual who is illegally deprived of
may issue the writ under his own hand and
liberty by physical coercion. [Caunca v.
deputize any person to serve it.
• The law even makes it the duty of the court
• Jurisprudence extended the definition of
to grant the HC writ if there is evidence
“restraint” to an accused who is out on bail and
that a person is unjustly restrained within
to convicts on parole. [In re: Azucena Garcia
the court’s jurisdiction, though no
application for the writ was made.
[Villavicencio v. Lukban (1919)]
• Contents of the writ: [Rule 102, Sec. 6]
• The sole issue in HC proceedings is detention.
When the release of the detained person is
distraint by officer distraint NOT by officer
effected, the petition for the issuance of the HC
writ becomes moot and academic. [Olaguer v. directed to him directed to an officer
Military Commission (1987)] orders him to produce the orders officer to: 1) take
• The release that renders a petition for the HC person before the court and produce the person
writ moot and academic is one that is free from before the court and 2)
involuntary restraints. Hence, the writ may still summon the person
detaining to show the cause
be applied for if: [Moncupa v. Enrile (1986)]
of destraint
1) A person continues to be denied any of his
constitutional rights;
• Grounds for denying the writ: [Rule 102, Sec.
2) The restraints are not merely involuntary
but appear to be unnecessary;
1) Custody under process/order by a court
3) An originally valid deprivation of liberty
with jurisdiction;
became arbitrary, in light of subsequent
2) If jurisdiction appears after the writ is
allowed, the detained cannot be discharged
because of informality/defect in the
3) Charge/conviction for an offense in the
• The HC writ does not lie to correct errors of fact
or law. If a court has jurisdiction, its
4) Imprisonment under lawful order.
judgment/order is not subject to collateral
attack by HC. The writ cannot perform the
function of a writ of error, even if the HC WRIT’S SERVICE
judgment/order is erroneous, provided the

100% UP LAW UP BAROPS 2008 Page 121 of 40


• If the person to whom the writ is directed apparent effect of the process. [Feria v. CA
cannot be found or does not have custody of (2000)]
the detained person, serve the writ on any • Exception: [Rule 102, Sec. 13]
person who has such custody. [Rule 102, Sec.
7] if custody is under if custody is by any
warrant of commitment alleged private
pursuant to law authority
return is considered prima return is only a plea of
• General rule: Officer to whom writ is directed facie evidence of the cause the facts set forth
shall convey the detained person on the day of restraint therein, and the party
specified in the writ: claiming custody must
1) Before the judge who allowed the writ; prove such facts
2) If he is absent, before any judge of the
same court. [Rule 102, Sec. 8]
• Exception: If the person to be produced
has sickness/infirmity such that he cannot
be brought before the court without
danger. if unlawfully restrained if lawfully committed for
an offense
• The writ cannot be disobeyed for formal defect,
court shall order 1) if offense is punishable
if it sufficiently appears therefrom:
discharge from by death - detained
1) Who has custody of the detained; and confinement; but person cannot be
2) The judge/court before whom the detained discharge is not effective released/discharged.
must be produced. [Rule 102, Sec. 9] until copy of order is 2) if offense is NOT
served on detaining punishable by death -
HC WRIT’S RETURN person. If detaining either:
• The return is signed by the person who made person does not desire to a) recommit to prison;
it. It shall be sworn to if: appeal, detained person b) admit to bail.
shall be released.
1) The detained is not produced; or
[Rule 102, Sec. 15] [Rule 102, Sec. 14]
2) If it was not made and signed by a sworn
public officer in his official capacity. [Rule
102, Sec. 11] • If detained person is admitted to bail, he shall
• Contents of the return: [Rule 102, Sec. 10] file a bond conditioned on appearance in court;
1) WON he has custody of the detained; otherwise, he will be recommitted. [Rule 102,
2) Copy of the authority for the custody; Sec. 14]
3) If the person is not produced in court, the • Person set at liberty by the writ shall not be
nature and gravity of sickness/infirmity; imprisoned for the same offense. [Rule 102,
4) If custody is transferred, the circumstances Sec. 17]
of the transfer. • Exception: If there is lawful order/process
• General rule: A person imprisoned for of a court having jurisdiction.
any criminal matter cannot be removed
from one custody to another. [Rule PENALTY FOR REFUSING/DISOBEYING
102, Sec. 18]
THE HC WRIT [Rule 102, Sec. 16]
• Exception:
1) By legal process;
2) To be delivered to an inferior PUNISHABLE ACTS/OMMISSIONS
officer to carry to jail; 1) If COC refuses to issue the writ after allowance
3) For trial; by the court and demand.
4) In cases of necessity or public 2) If person directed in the writ:
calamity. a) Neglects/refuse to obey or make the
b) Makes a false return;
c) Refuses to deliver a true copy of the
12] warrant/order of commitment, within 6
hours after demand.
• When the writ is returned, the court must 3) Imprisoning a person set at liberty by the writ,
immediately hear the case. for the same offense. [Rule 102, Sec. 17]
• Hearing may be adjourned for good causes, 4) Removing a prisoner from one custody to
with the court making provisions for the another. [Rule 102, Sec. 18]
safekeeping of the detained person.
• If the detained person is not produced, the PENALTIES
court must be satisfied of the gravity of the 1) Forfeiture of P1,000 to the aggrieved party.
alleged sickness/infirmity. 2) Punished for contempt.
• In the hearing, the court shall disregard
matters of form and technicalities of the HC WRIT AND CERTIORARI
authority/order of commitment.
• The writs of HC and certiorari may be ancillary
BURDEN OF PROOF to each other where necessary to give effect to
the supervisory powers of the higher courts.
• General rule: The burden of proving illegal [Regalado]
restraint rests on the petitioner who attacks the • Rationale: An HC writ reaches the body
restraint. If the return sets forth process which and the jurisdictional matters, but not the
prima facie shows good ground for the record. A certiorari writ reaches the record,
prisoner’s detention, petitioner must allege and but not the body. Hence, the two may be
prove new matter that tends to invalidate the used together for review purposes.

100% UP LAW UP BAROPS 2008 Page 122 of 227


B. WRIT OF AMPARO • HD WRIT – An independent remedy to protect

the right to privacy, especially the right to
informational privacy.
• AMPARO – Literally, to protect.
• Rationale:
• The instrument originated in Mexico and has
• The privacy of one’s person/family/home is
been constitutionally adopted by Latin
a sanctified right in the history of
American countries (except Cuba) to protect
constitutional law. A person’s home is his
against human rights abuses, especially during
kingdom, which even the king has to
the time when they were governed by military
juntas. The writ was adopted to provide for a
• The right to privacy is accorded a
remedy to protect the whole range of
recognition independent of its identification
constitutional rights, including socio-economic
with liberty. In itself, it is fully deserving of
constitutional protection. A system of
• In light of the recent prevalence of extralegal
limited government safeguards a private
killings and enforced disappearances (ELKED),
sector, which belongs to the individual;
SC exercised its enhanced power to promulgate
firmly distinguishing it from the public
rules to protect and enforce constitutional
sector, which the government can control.
rights. [Art. 8, Sec. 5[5], Consti]
Protection of this private sector (i.e. of the
individual’s dignity and integrity) has
committed without due process of law (i.e.
become increasingly important as modern
without legal safeguards or judicial
society developed. All the forces of
technological age operate to narrow the
area of privacy and facilitate intrusion into
Attended by the following circumstances:
it. In modern terms, the capacity to
1) Arrest/detention/abduction of a person
maintain and support this enclave of
by a government official or organized
private life marks the difference between a
groups or private individuals acting
democratic and a totalitarian society.
with the in/direct acquiescence of the
[Morfe v. Mutuc (1968)
• The HD writ is also a remedy to protect the
2) Refusal of the State to disclose the
right to life/liberty/security of a person
fate/whereabouts of the person
from violation (or threat thereof) by an
concerned, or refusal to acknowledge
unlawful act/omission of a public official/EE
the deprivation of liberty, which places
or of a private individual/entity.]
such persons outside the protection of
the law. [Declaration on the Protection
of All Persons from Enforced
• The Philippine Constitution does not explicitly
provide for the writ. However, several amparo
protections are available under the 1987
• The Grave Abuse Clause in Art. 8, Sec. 1,
Consti accords the same protection to human
rights given by amparo.

Constitutional basis
Amparo contra leyes Art. 5, Sec.5(2)(a), Consti:
SC has review powers over
all cases in which the
constitutionality/validity of
any treaty,
agreement, law,
presidential issuances, or
regulation is in question

Amparo casacion Art. 5, Sec.5(2), Consti:

SC has explicit review
powers over judicial
Amparo administrative Recognized in form by the
1987 Consti
Amparo libertad Comparable to HC remedy
under the ROC (which
adopted the Old English
rule on protection of
individual liberty) and
Consti provisions (Art. 3,
Sec. 13 and 15; Art. 7,
Sec. 18; Art. 8, Sec. 5,
par. 1)



100% UP LAW UP BAROPS 2008 Page 123 of 40


Xxx writ of amparo writ of HD

Nature of remedy If right to life/liberty/security is violated (or If right to privacy is so violated (or
threatened to be so) by a public official/EE threatened to be so) in
or a private individual/entity gathering/collecting/storing data or
information about aggrieved party's
Who may file 1) Aggrieved party; 1) SAME
Xxx 2) In order: 2) If ELKED cases (in order):
Xxx a) Immediate family members a) SAME
Xxx b) Ascendant/descendant or collateral b) SAME
relative within 4th civil degree
Xxx c) Concerned citizen/organization Xxx
Xxx * Aggrieved party's filing suspends the right Xxx
to file of others
Xxx * Filing by an authorized party suspends the Xxx
right of all others down the order
Docket fees Exempt If indigent petitioner, exempt
Docket petition and act immediately SAME, but without prejudice to submission of
proof of indigency within 15 days from filing

Contents of petition Signed, verified and allege: Xxx

Xxx 1) Petitioner's circumstances 1) SAME
Xxx 2) Respondent's circumstances 2) SAME
Xxx 3) Right violated or threatened to be 3) File/database location and person/entity in
violated, and how violated/threatened possession/control
Xxx 4) Investigations conducted
Xxx 5) Petitioner's actions/recourses to 4) Petitioner's actions/recourses to secure the
determine aggrieved party's data/information
identity/whereabouts and violator's identity

Xxx 6) Relief prayed for 5) SAME, including the

of the file/database or enjoinment of the
Xxx * Include general prayer for other just and * SAME
equitable reliefs
Issuance of writ Upon filing and petition's prima facie SAME
Xxx Court shall immediately issue the writ SAME
Xxx Clerk of court shall issue the writ under the SAME, and he shall serve it within 3 days
court's seal from issuance
Xxx * If urgent, the judge/justice may issue the * SAME
writ in his own handwriting and deputize
anyone to serve it
Xxx * The writ shall set the date and time for * SAME, but within 10 days from issuance
summary hearing, which should be within 7
days from issuance
Penalty for refusing Contempt, without prejudice to other SAME
to issue writ disciplinary actions
Service of writ Serve a copy on respondent and retain a SAME
copy on which to make a return of service
* If respondent cannot be served personally, * SAME
apply substituted service rules
Return on the writ Respondent must file a verified written SAME, but within 5 working days (the court
return within 72 hours after service may extend the period for justifiable reasons)
Xxx Contents of return:
Xxx 1) Lawful defenses 1) SAME
Xxx 2) Steps/actions taken to determine the 2) If respondent has possession/control of the
whereabouts of the aggrieved party and the data/information:
Xxx 3) All relevant information a) Disclosure of the data/information, its
nature, and the purpose of its collection

Xxx 4) If respondent is a public official/EE, b) Steps/actions taken to secure the

actions that were taken or will be taken: data/information's confidentiality

Xxx a) To verify the aggrieved party's identity c) Data/information's currency and accuracy

Xxx b) To recover and preserve evidence for 3) Other relevant allegations

Xxx c) To determine death's/disappearance's xxx

100% UP LAW UP BAROPS 2008 Page 124 of 227


Xxx d) To identify and apprehend persons xxx

Xxx e) To bring suspected offenders to court xxx
Xxx * General denial of petition's allegations is * SAME
not allowed
Defenses raised All defenses not raised in the return are Hearing may be in chambers if respondent
deemed waived invokes the following defenses:

Xxx Xxx 1) Release of the data/information will

compromise national security or State secrets

Xxx Xxx 2) Data/information cannot be divulged to

public because of its nature or privileged
Prohibited 1) MTD SAME
Xxx 2) Motion for extension to file pleading xxx
Xxx 3) Dilatory motion for postponement xxx
Xxx 4) Motion for bill of particulars xxx
Xxx 5) Counter/cross complaint xxx
Xxx 6) 3rd party complaint xxx
Xxx 7) Reply xxx
Xxx 8) Motion to declare respondent in default xxx

Xxx 9) Intervention xxx

Xxx 10) Memorandum xxx
Xxx 11) MFR of interlocutory orders or interim xxx
relief orders
Xxx 12) Petition for xxx
certiorari/mandamus/prohibition against
interlocutory orders
Effect of failure to Ex parte hearing SAME
file return
Xxx Xxx May grant petitioner relief as petition
warrants, although it is the court's discretion
to require petitioner to submit evidence
Summary hearing Allowed, but the court may call for a SAME
preliminary conference to simplify issues and
determine possibility of obtaining
stipulations and admissions
Xxx Hearing will be day to day until completed, xxx
and has the same priority as HC petitions

Interim reliefs Upon filing and anytime before judgment, xxx

the court may grant any of the following:

Xxx 1) Temporary protection order xxx

Xxx 2) Inspection order = To permit entry for xxx
inspecting relevant objects/operations

Xxx 3) Production order = To produce and permit xxx

inspection of evidence
Xxx 4) Witness protection order xxx
Availability of Only #2 and #3 xxx
interim reliefs to
Contempt For disobeying lawful court orders/processes SAME

Burden of proof Substantial evidence xxx

Required standard If respondent is: xxx
of diligence
Xxx 1) Private individual/entity: Ordinary xxx
Xxx 2) Public official/EE: Extraordinary; and xxx
cannot invoke presumption of regularity in
performance of official duty to evade liability

Judgment Must be rendered within 10 days from SAME

petition's submission for decision
Xxx * If petition's allegations are proven by * SAME
substantial evidence, grant writ and reliefs;
otherwise, deny
Xxx Xxx * Upon judgment's finality, enforce within 5
Return of service Xxx Executing officer must make return within 3
days from enforcement

100% UP LAW UP BAROPS 2008 Page 125 of 40


Xxx Xxx * Notice and hearing on the executing

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

ROC application Suppletory SAME

100% UP LAW UP BAROPS 2008 Page 126 of 227



VENUE [Rule 103, Sec. 1]

A. CHANGE OF NAME • In the RTC of the province where the

petitioner has been residing for years prior to
UNDER RULE 103 the filing of the petition.


• A petition for change of name shall be signed
Petition for change of name
and verified by the person desiring his name
changed, or some other person on his behalf.
It shall contain: [Secan Kok v. Republic
Court order fixing the date and place for hearing 1) That the petitioner has been a bona fide
resident of the province where the
petition is filed for at least 3 years prior
to the date of such filing;
2) The cause for which the change of the
Publication of the court order fixing the date and
petitioner's name is sought;
place of hearing, at least once a week for 3
successive weeks in a newspaper of general 3) The name asked for;
circulation 4) All names by which petitioner is known.
• All aliases of the applicant must be set forth
in the petition’s title; otherwise, such defect
would be fatal even if said aliases are
Hearing on the petition contained in the body of the petition. [Go
Chiu Beng v. Republic (1972)]
• Verification is a formal, not a jurisdictional
requirement. The lack of verification is not a
Judgment granting/denying the change of name. ground for dismissing the petition. [Oshito v.
Copy of the judgment shall be served upon the civil Republic]
registrar, who shall annotate the same • Petition should be filed by applicant upon
reaching the age of majority. [Regalado]


Change of Name (Rule Correction of clerical 1) When the name is ridiculous, dishonorable, or
103) or typographical error extremely difficult to write/pronounce.
(RA 9048) 2) Consequence of a change in status (e.g.
Judicial Administrative: Local civil legitimation).
registrar or consul 3) To avoid confusion. [Alfon v. Republic
general (for nonresident (1980)]
citizens) 4) Having continuously used and been known
Includes change in Clerical/typographical
since childhood by a Filipino name, unaware
surname errors and change in
first/nick name
of his/her alien parentage. [Ang Chay et al.
v. Republic (1970)]
5) A sincere desire to adopt a Filipino name to
• A change of name is a proceeding in rem. As
erase signs of former alienage, all in good
such, strict compliance with all jurisdictional
faith and without prejudicing anybody. [Uy v.
requirements, particularly on publication, is
Republic (1965)]
essential in order to vest the court with
jurisdiction. [Regalado]
• An alien can petition for a change of name COURT ACTION [Rule 103, Sec. 3]
but he must be domiciled in the Philippines.
[Ong Huan Tin v. Republic (1967)] • The court shall promulgate an order:
• The name that can be changed is the name 1) Reciting the purpose of the petition;
that appears in the civil register, and not in 2) Fixing a date and place of hearing;
the baptismal certificate or that by which the 3) Directing that a copy of the order be
person is known in the community. [Ng Yao published before hearing at least once a
Siong v. Republic (1966)] week for 3 successive weeks in a
• Legal separation is not a ground for the newspaper of general circulation.
female spouse for a change of name under • The date for hearing shall not be within 30
Rule 103. [Laperal v. Republic (1962)] days prior to an election nor within 4 months
• A change of name granted by the court after the last publication of notice of hearing.
affects only a petitioner. A separate petition
for change of name must be filed for his/her WHO MAY OPPOSE PETITION [Rule 103,
spouse and children. [Secan Kok v. Republic Sec. 4]
• Sex reassignment is not a valid ground to 1) Any interested person;
change one’s first name (applies to both Rule 2) The Solicitor General (OSG) or the proper
103 and RA 9048). [Silverio v. Republic provincial/city fiscal shall appear on behalf of
(2007)] the Republic of the Philippines. The OSG

100% UP LAW UP BAROPS 2008 Page 127 of 40


must be notified by service of a copy of the APPLICATION OF RA 9048 TO CHANGES

GRANTED [Rule 103, Sec. 5] • RA 9048 can only be used with regards
clerical or typographical errors and change of
• If there is satisfactory proof in open court on first or nickname which can be corrected or
the date fixed in the order that such order changed by the Civil Registrar or by the
has been published as directed and that the Consul General as regards non-residents.
allegations of the petition are true, the court
shall, if proper and reasonable cause appears
for changing the name of the petitioner,
[RA 9048, Sec. 2(3)]
adjudge that such name by changed in
accordance with the prayer of the petition.
• Definition: A mistake committed in the
• Judgments/orders allowing the change of
performance of clerical work in
name shall be furnished the civil registrar of
writing/copying/transcribing/ typing an entry
the municipality/city where the court issuing
in the civil register that is harmless and
the same is situated, who shall forthwith
innocuous, such as misspelled name or
enter the same in the Civil Register.
misspelled place of birth or the like, which is
visible to the eyes or obvious to the
DISCREPANCY IN PETITION AND understanding, and can be
PUBLISHED ORDER corrected/changed only by reference to other
existing record/s: Provided, however, That no
• A discrepancy in the name sought to be correction must involve the change of
adopted as stated in the petition and in the nationality, age, status or sex of the
published order constitutes a substantial petitioner.
defect because it did not correctly identify the
parties to the proceedings. As such, there is WHO MAY FILE PETITION [RA 9048, Sec. 3]
no strict compliance with the publication
requirement and renders the entire • Any person having direct and personal
proceedings null and void since the court has interest in the correction of a
not acquired jurisdiction. [Jacobo v. clerical/typographical error in an entry and/or
Republic] change of first name or nickname in the civil
VENUE UNDER RA 9048 [RA 9048, Sec. 3]
1) Local Civil Registry of the city/municipality
PROCEDURE IN CHANGE OF NAME where the record being sought is kept.
UNDER RA 9048 2) Local Civil Registry where the interested
party is presently residing/domiciled: Only if
the petitioner migrated to another place in
Petition with the civil registrar or consul general the country and it would not be practical for
such party, in terms of transportation
expenses, time and effort to appear in person
before the local civil registrar keeping the
Publication of the petition at least once a week for 2 documents to be corrected or changed. In
consecutive weeks this case, the 2 local civil registrars
concerned will communicate to facilitate the
processing of the petition.
3) Philippine consulates: Only in cases of
Posting by the civil registar of the petition in a Philippine citizens who are residing/domiciled
conspicuous place for 10 consecutive days
in foreign countries.

• All petitions for correction of errors/change of

first names/nicknames may be availed of
Decision by the civil registrar within 5 days after the only once.
completion of the posting requirement


Transmission by the civil registrar of a copy of his [RA 9048, Sec. 4]
decision (together with the records of the proceeding)
to the Civil Registrar General 1) When the name is ridiculous, dishonorable or
extremely difficult to write/pronounce.
2) The new first/nick name has been habitually
and continuously used by the petitioner and
The Civil Registrar General may impugn the decision he has been publicly known by that first/nick
based on grounds in RA 9048, and exercise appellate name in the community.
3) To avoid confusion.


100% UP LAW UP BAROPS 2008 Page 128 of 227


[RA 9048, Sec. 5] 1) Within 10 working days from receipt of the

decision granting a petition, the Civil
• The petition shall be in the form of an Registrar General shall exercise the power to
affidavit, subscribed and sworn to before any impugn such decision by way of an objection
person authorized by the law to administer based on the following grounds:
oaths and shall set forth: [Secan Kok v. a) The error is not clerical/typographical.
Republic (1973)] b) The correction of entries is
1) The facts necessary to establish the substantial/controversial as it affects the
merits of the petition; civil status of a person.
2) That the petitioner is competent to testify c) The basis used in changing the first/nick
to the matters stated; name of a person does not fall under
3) The erroneous entry which are sought to those provided by law.
be corrected; 2) The Civil Registrar General shall immediately
4) All names by which petitioner is known. notify the city/municipal civil registrar or the
consul general of the action taken on the
Sec. 5] 3) He has appellate powers over the decision of
the local civil registrars/consul generals.
1) A certified true machine copy of the
certificate or of the page of the registry book • If the Civil Registrar General fails to exercise
containing the entries sought to be his power to impugn within the prescribed
corrected/changed. period, the decision of the city/municipal civil
2) At least 2 public/private documents showing registrar or the consul general shall become
the correct entries upon which final and executory.
correction/change shall be based
3) Other documents which the petitioner or the
city/municipal civil registrar or the consul
general may consider relevant and necessary
for the approval of the petition.
4) Certification from appropriate law
enforcement agencies that the petitioner has
no pending case or no criminal record.


Sec. 5]

• The petition must be published at least once

a week for 2 consecutive weeks in a
newspaper of general circulation.


[RA 9048, Sec. 5]

1) For the city/municipal civil registrar, or the

consul general;
2) For the Office of the Civil Registrar General.
3) For the petitioner.


[RA 9048, Sec. 6]

1) Examine the petition and its supporting

2) Post the petition in a conspicuous place
provided for that purpose for 10 consecutive
days after he finds the petition and its
supporting documents sufficient in form and
3) Act on the petition and render a decision not
later than 5 working days after the
completion of the posting and/or publication
4) Transmit a copy of his decision together with
the records of the proceedings to the Office
of the Civil Registrar General within 5
working days from the date of the decision.



100% UP LAW UP BAROPS 2008 Page 129 of 40


Civil registar is not a Civil registrar concerned is

X. CANCELLATION OR party to the proceeding made a party to the
respondent. The OSG
IN THE CIVIL REGISTRY must also be served a
copy of the petition
Petition is filed by person Petition is filed by any
desiring to change his person interested in any
A. CANCELLATION OR name act/event/order/decree
CORRECTION OF concerning the civil status
of persons
ENTRIES IN THE CIVIL Order for hearing shall Order for hearing shall be
be published once a published once a week for
REGISTRY UNDER RULE week for 3 consecutive 3 consecutive weeks AND
weeks. No mention of the court shall cause
108 causing notice to be sent reasonable notice to be
given to persons named in
• Cancellation/correction of entries in the civil
REGISTRY UNDER RULE 108 registry is a proceeding in rem. As such,
strict compliance with all jurisdictional
Petition for change of name requirements, particularly on publication, is
essential in order to vest the court with

Court order fixing the date and place for hearing WHO MAY FILE PETITION [Rule 108, Sec. 1]

• Any person interested in any

act/event/order/ decree concerning the civil
Publication of the court order at least once a week
status of persons.
for 3 successive weeks in a newspaper of general
circulation, with reasonable notice given to persons • The civil registrar and all persons who
named in the petition have/claim any interest shall be made parties
to the proceeding.

VENUE [Rule 108, Sec. 1]

Filing of opposition by the civil registar and any
person having/claiming interest under the entry
whose cancellation/correction is sought, within 15
• RTC of the place where the corresponding
days from notice of the petition or from the last date civil registrar is located.
of publication of the notice
OR CORRECTION [Rule 108, Sec. 2]
Hearing on the petition
1) Births;
2) Marriages;
3) Deaths;
4) Legal separations;
Judgment granting/denying the petition. Copy of the
judgment shall be served upon the civil registrar, 5) Judgments of annulments of marriage;
who shall annotate the same 6) Judgments declaring marriages void ab initio;
7) Legitimations;
8) Adoptions;
9) Acknowledgements of natural children;
RULE 103, 108 AND RA 9048 COMPARED 10) Naturalization;
11) Election/loss/recovery of citizenship;
Cancellation/correctio Correction of clerical or 12) Civil interdiction;
n of entries in the civil typographical error (RA 13) Judicial determination of filiation;
registry (Rule 108) 9048) 14) Voluntary emancipation of a minor;
Judicial Administrative: Local civil 15) Change of name.
registrar or consul general
(for nonresident citizens)
Substantial changes (i.e. Clerical/typographical
those affecting civil errors and change in PETITION
status, citizenship, first/nick name
nationality and 1) Fix the date and place for the hearing.
substantial errors)
2) Cause reasonable notice to be given to the
persons named in the petition.
3) Cause the order to be published once a week
Rule 103 Rule 108 for 3 consecutive weeks in a newspaper of
Petition to be filed in the Verified petition filed in the general circulation in the province.
RTC where the petitioner RTC where the 4) Make orders expediting the proceedings, and
resides corresponding civil registry
may also grant preliminary injunction for the
is located
preservation of parties’ rights pending such
5) Grant/deny the petition. In either case, a
certified copy of the judgment shall be served

100% UP LAW UP BAROPS 2008 Page 130 of 227


upon the civil registrar concerned, who shall XI. APPEALS IN SPECIAL
annotate the same.
PETITION [Rule 108, Sec. 5]
• The civil registrar and any person 109, Sec. 1]
having/claiming any interest under the entry
whose cancellation or correction is sought 1) If it dis/allows a will;
may file an opposition in court, within 15 2) If it determines who are the lawful heirs or
days from notice of the petition or from the the distributive shares;
last date of such notice. 3) If it wholly or partially dis/allows a claim
against a decedent’s estate, or any claim
presented on the estate’s behalf in offset to a
B. CANCELLATION OR claim against it;
CORRECTION OF 4) If it settles the account of an
ENTRIES IN THE CIVIL 5) If it constitutes a final determination in the
REGISTRY UNDER RA lower court of the rights of the party
appealing, in proceedings relating to estate
9048 settlement or administration of a
• Note: See the section on change of name. • Exception: Appointment of a special
administrator is not appealable.
6) If it is the final order/judgment rendered in
the case, and affects the substantial rights of
the person appealing.
• Exception: Orders granting/denying a

• While some of the items in Rule 109, Sec.1

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



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

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