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SPECIAL PROCEEDINGS the whole

world,
Special proceedings: A remedy by which a party as majority of
seeks to establish a status, right or a particular fact special
(Rule 1, Sec. 3(c)). proceedings
are in
SECTION 1. SUBJECT MATTER OF SPECIAL rem.
PROCEEDINGS
Special proceedings enumerated in the Rules of Purpose To protect or To establish a
Court enforce a right or right, status
(J-CRASHED-CHAG) prevent or or
1. Judicial approval of voluntary recognition of minor redress a wrong. fact.
natural children;
2.Change of name; Governing It is governed by It is governed
3.Rescission and revocation of adoption; Rules ordinary rules by
4.Adoption; supplemented by special rules
5. Settlement of estate of deceased persons; special rules. supplemented
6.Habeas corpus; by
7. Escheat; ordinary
8.Declaration of absence and death; rules.
9. Cancellation and correction of entries in the civil
registry; Court with It is heard by It is heard by
10.Hospitalization of insane persons; Jurisdiction courts of general courts of
11.Adoption; jurisdiction. limited
12.Guardianship and custody of children; jurisdiction.

Other Special Proceedings (LCR-VA) How Initiated by a Initiated by


1. Liquidation proceedings; initiated pleading and means
2.Corporate rehabilitation; parties respond of a petition
3.Recognition and enforcement of arbitration clause or through an and
award; answer after parties
4. Vacation, setting aside, correction or modification of being served with respond by
an arbitral award; summons. means of an
5.Any application with a court for arbitration assistance opposition
and supervision. after
notice and
Note: The list under Sec. 1, Rule 72 is not exclusive. publication
Any petition which has for its main purpose the are
establishment of a status, right or a particular fact may made.
be included as a special proceeding (Festin, Special
Proceedings, A Foresight to the Bar Exam: Question and Applicability Parties are Law on
Answer Notes, Bar Questions, Cases, Updated Laws and of pleadings generally allowed pleadings
Rules, 2011 to file an answer, generally not
ed., p. 1). counterclaim, applicable.
cross-claim and
SECTION 2. APPLICABILITY OF RULES OF CIVIL third-party
ACTIONS complaint
In the absence of special provisions, the rules provided Appeal The period to The period to
for in ordinary actions shall be, as far as practicable, appeal is only 15 appeal is 30
applicable in special proceedings. days and notice days
of appeal suffices. and aside
from a
Ordinary Action Special Proceeding notice of
appeal, a
record on
Ordinary Action Special appeal
Proceeding is required.

Nature Generally Generally no


adversarial in definite Action - formal demand of one‘s right in a court of
nature. There are adverse justice in the manner prescribed by the court or by the
definite parties – party because law (Herrera).
plaintiff vs. it is
defendant. directed Special proceeding - application or proceeding to
against establish the status or right of a party, or particular fact.
No formal pleadings are required, unless the statute enforceable
expressly so provides (Herrera). anywhere in
the
Venues and Jurisdictions for Special Proceedings Philippines)

Special Venue Jurisdiction RTC (on any


Proceeding day and at
Settlement Province of decedent’s MTC – If any time,
of Estate residence at the time estate’s gross enforceable
(Rules 73- of value does only
90) death not exceed within its
PhP300K judicial
(PhP400K in district)
Metro Manila
Escheat If decedent dies Family Court
intestate (on custody
and without heirs – of minors,
Province enforceable
where decedent last within its
resided territorial
or where estate is jurisdiction,
If reversion – Province [Sec. 20, AM
where No. 03-04-
land lies 04-SC])
wholly/partially Writ of Where the threat or SC, CA,
Guardianshi Where ward resides or Family Court Amparo act/commission or any Sandiganbay
p where his property is – If minor of its an,
located Ward elements occurred RTC
(if non-resident) Writ of Petitioner’s residence RTC
RTC – If Habeas or RTC
other than Data where the place the SC, CA,
minor information is Sandiganbay
ward gathered/collected/st an -
Trusteeship Where the will was RTC ored, at If the action
allowed the petitioner’s option concerns
or where the property public data
affected by the trust is files of
located government
Adoption If domestic – where Family Court offices
adopter or Inter- Change of If judicial - Where the RTC
Resides Country Name person
Adoption applying for the
If inter-country – Board change of
where Family Court his name resides
adoptee resides (if
filed with Family If administrative - a) Local civil
Court) Local registry or
Habeas Where detainee is SC (on any civil registry where the Philippine
Corpus detained day and at record consulate
(if filed in RTC) any time, sought to be changed
enforceable is kept
anywhere in b) Local civil registry
the of the
Philippines) place of residence of
interested party (only
Sandiganbay if
an (only in petitioner migrated to
aid of its another place in the
appellate Philippines and it
jurisdiction) would be
impractical to file in
CA (in the place
instances where records sought
authorized by to be
law, changed are kept) c)
Philippine consulates March 15, 2003);
(only 4. Rule on Custody of Minors and Writ of Habeas
for Philippine citizens Corpus in Relation to Custody of Minor Children (A.M.
who No. 03-04-04, April 22, 2003);
reside in foreign 5.Summary of Judicial Proceedings under the Family
countries Code (Arts. 238-253, New Civil Code)
Declaration Where absentee last RTC b. Proceedings for protection orders under the Violence
of Absence resided against Women and their Children Act (R.A. No. 9262)
and 1. Rule on Violence against Women and Children (A.M.
Appointmen No. 04-10-11, October 19, 2004)
t of their c. Proceedings under the Arbitration Law (R.A. No. 876)
representati and Alternative Dispute Resolution Act (R.A. No. 9285)
ve 1. Arbitration; court-annexed mediation and judicial
Cancellation If judicial – where the RTC dispute resolution (A.M. No. 01-10-5-SC-PHILJA,
or concerned civil October 16, 2001).
Correction registry is
of entries in located RULES 73-90
the Civil Different modes of settlement of estate of a
Registry If administrative - Local civil deceased
a) Local civil registry registry or person/presumed dead
where Philippine
the record sought to Consulate 1. Extrajudicial Settlement of Estate (Section 1, Rule
be 74);
changed is kept b) 2.Summary Settlement of Estate of Small Value
Local civil (Section
registry of the place of 2, Rule 74);
residence of 3. Partition (Rule 69);
interested party 4. Probate of Will (Rule 75 to 79);
(only if petitioner 5. Petition for Letters of Administration in cases of
migrated to Intestacy (Rule 79);
another place in the
Philippines and it Procedure in settlement proceedings (Judicial)
would be
impractical to file in Petition for Probate of will, if any (Rule 75-76)
the place Court order fixing the time and place for probate.
where records sought Publication of hearing for 3 successive weeks. Notice
to be shall also be given to the designated/known heirs,
changed are kept) c) legatees and devisees, and the executor if the one
Philippine consulates petitioning for allowance of the will is not the testator
(only Issuance of Letters
for Philippine citizens Testamentary/Administration (A special
who administrator may be appointed) (Rules 77-80)
reside in foreign Publication of Notice for Filing Claims
countries) Filing of Claims (Rule 86)
Petition Where petitioner or Family Court Issuance of Order of Payment or Sale of
for respondent has been Properties
declaratio residing for at least 6 Payment of Claims:
n of months prior to the Sale/Mortgage/Encumbrance of estate
nullity, date of filing If non- properties.
annulment resident petitioner,
, legal where he may be Distribution of remainder, if any
separation found at the election (But this can be made even before payment if
of the petitioner a bond is filed by the heirs).

Special Proceedings under various laws and SC


Circulars
RULE 73
VENUE AND PROCESSES
a. Petitions under the Family Courts Act (R.A. No. 8369)
1. Rule on Declaration of Absolute Nullity of Void PERSONS SETTLED
Marriages and Annulment of Voidable Marriages Jurisdiction: It depends upon the gross value of the
(A.M. No. 02-11-10-SC, March 15, 2003); estate of the decedent:
2. Rule on Legal Separation (A.M. No. 02-11-11-SC, 1. In Metro Manila – MTC: gross value does not exceed
March 15, 2003); PhP400,000.00, otherwise, RTC;
3.Rule on Provisional Orders (A.M. No. 02-11-12-SC, 2. Outside Metro Manila – MTC: gross value does not
exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4), General Rule: Probate court cannot determine issue of
Sec. 33(1), B.P. Blg. 129). ownership.
.
Note: Jurisdiction over the subject matter is determined Exceptions:
by the allegations in the petition; (Cadimas v. Carrion, 1. Ownership may be provisionally determined for the
G.R. No. 180394, September 29, 2008); hence, it is not purpose of including property in inventory, without
the actual gross value of the estate, which is the basis prejudice to its final determination in a separate action
of jurisdiction but the alleged gross value of the (Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,
estate. May 7,1987);
2. When all the parties are heirs and they submit the
Venue issue of ownership to the probate court provided that
1. Inhabitant (Resident) of the Philippines (whether the rights of third parties are not prejudiced (Bernardo
citizen or alien) – Court of the province/city where he v. Court of Appeals, G.R. No. L-18148, Feb. 28, 1963);
resides at the time of death. 3. Question is one of collation or advancement (Coca, et
2. Inhabitant (Resident) of Foreign Country – Court of al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31,
any province wherein he had his estate (Sec. 1, Rule 1978).
73).
The RTC acting in its general jurisdiction is devoid of
Residence authority to render adjudication and resolve the issue of
Residence means his personal, actual or physical advancement of the real property in favor of an heir
habitation, his actual residence or place of abode (Fule since reconveyance and annulment of title with
v. Court of Appeals, G.R. No. L-40502, November 29, damages is not the proper vehicle to thresh out said
1976).Where the proceeding was commenced with a question (Natcher v. Court of Appeals, G.R. No. 133000,
court of improper venue, as where the decedent was October 2, 2001).
neither a resident at the time of his death nor had estate
therein, and such objection was seasonably raised in the Other questions which the probate court can
probate court, the petition should be dismissed and the Determine
proceedings should be instituted in the proper court
(Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December 1. Who the heirs of the decedent are;
28, 1956). 2. The recognition of a natural child;
3. The validity of disinheritance effected by the testator;
Remedy if venue is improperly laid 4. Status of a woman who claims to be the lawful wife
General Rule: Ordinary appeal not certiorari or of the decedent;
prohibition. 5. The validity of a waiver of hereditary rights;
6. The status of each heir;
Exception: If want of jurisdiction appears on the record 7. Whether property in inventory is conjugal or exclusive
of the case (Sec. 1, Rule 73). property of deceased spouse;
The judicial settlement of a decedent’s estate is a 8. Matters incidental or collateral to the settlement and
proceeding in rem. distribution of the estate (Regalado, Remedial Law
Compendium Vol. II, 2008 ed., p. 13).
Two kinds of settlement
1. Extrajudicial settlement – a proceeding where the Exclusionary Rule
decedent had left no will and no debts, and the heirs General Rule: The court first taking cognizance of the
adjudicate the estate among themselves without settlement of the estate of the decedent shall exercise
seeking letters of administration (Sec. 1, Rule 74). jurisdiction to the exclusion of all other courts.
2. Judicial settlement – Testate or intestate The probate court acquires jurisdiction from the
proceeding instituted in the country where decedent had moment the petition for the settlement of estate is filed
his residence at the time of his death or had estate if a with said court. It cannot be divested of such jurisdiction
nonresident (Sec. 2, Rule 74). by the subsequent acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval v.
a. Summary judicial proceedings (if the value of estate Santiago, G.R. No. L-1723, May 30, 1949); or by filing
is below PhP10,000); another petition for settlement in a proper court of
b. Regular settlement proceedings concurrent venue (Rodriguez v. De Borja, G.R. No. L-
21993, June
Extent of jurisdiction: Probate courts are courts of 21, 1966).
limited jurisdiction. It may only determine and rule upon
issues relating to the settlement of the estate, namely: Exception: Estoppel by Laches
(LAD)
SECTION 2. WHERE THE ESTATE SETTLED UPON
1. Liquidation of the estate; DISSOLUTION OF MARRIAGE
2.Administration of the estate; and
3.Distribution of the estate (Herrera, Special Upon the death of either the husband or the wife, the
Proceedings and Special Rules Implementing the Family partnership affairs must be liquidated in the testate or
Courts Act of 1997, 2005 ed., p. 12). intestate proceedings of the deceased husband or wife.
If both have died, liquidation may be made in the testate
or intestate proceedings of either (Bernardo, et. al. v. affidavit of adjudication must
Court of Appeals, et. al., G.R. No, L-18148, February 28, be filed with the proper
1963). Registry of Deeds
Publication of notice of the
Exceptions: (CEE) fact of extrajudicial settlement
1. To satisfy the contributive share of the devisees, once a week for 3 consecutive
legatees and heirs when the latter had entered prior weeks in a newspaper of
possession over the estate (Sec. 6, Rule 88); general circulation
2. To enforce payment of the expenses of partition (Sec. Filing of bond equivalent to
3, Rule 90); the value of personal property
3. To satisfy the costs when a person is cited for with the proper Registry of
examination in probate proceedings (Sec. 13, Rule Deeds
142).
Requisites:
Under the rule of inclusio unius est exclusio alterius, A. Substantive
these should be the only instances when the probate 1. The decedent left -
court can issue writ of execution (Vda. De Valera, et al., a. No will;
v. Ofilada, et al., G.R. No. L-27526, Sept. 12, 1974). b. No debts.
2. The heirs are all of age or the minors are represented
SECTION 4. PRESUMPTION OF DEATH by their judicial or legal representatives duly authorized
There is no need for an independent action for for the purpose.
Declaration of Presumptive Death for purposes of
Succession. B. Procedural
The returning absentee’s recovery of his estate is 1. Division of estate must be in a public instrument or
subject to the following conditions: by affidavit of self-adjudication in the case of a sole
heir;
1. All his debts must have been paid; 2. Filed with proper Registry of Deeds;
2. He shall recover his property in the condition in which 3. Publication of notice of the fact of extrajudicial
it may be found together with the price of any property settlement once a week for 3 consecutive weeks;
that may have been alienated or the property acquired 4. Filing of the bond with the Register of Deeds
therewith; equivalent to the value of personal property. (Sec.
3. He is not entitled to the fruits of the rent (Art. 392, 1, Rule 74).
New
Civil Code) Note: The bond is required only when personalty is
involved. If it is a real estate, it shall be subject to a lien
RULE 74 in favor of creditors, heirs or other persons for the full
period of 2 years from such distribution and such lien
SUMMARY SETTLEMENT OF
cannot be substituted by a bond (Rebong v. Ibañez,
ESTATES G.R. No. L- 1578, September 30, 1947).

General Rule: The settlement of the estate of the The bond is the value of the personal property certified
decedent should be judicially administered through an by the parties under oath and conditioned upon
administrator or executor. payment of ust claims filed under Sec. 4, Rule 74.

Exception: Affidavit of Self Adjudication


The heirs may resort to: An affidavit required by Sec 1 of Rule 74 to be executed
1. Extrajudicial settlement of estate (Sec.1); by the sole heir of a deceased person in adjudicating to
2. Summary settlement of estates of small value (Sec. himself the entire estate left by the decedent.
2).
Is a public instrument necessary for the validity of
Note: In both exceptional circumstances, an an extra-judicial settlement?
administrator or executor need not be appointed.
No. A private instrument/document or oral agreement
SECTION 1. EXTRAJUDICIAL SETTLEMENT BY of partition as well as a compromise agreement entered
AGREEMENT BETWEEN HEIRS without previous authority of the court is valid among
the heirs who participated in the extrajudicial
Extrajudicial Settlement settlement. The requirement under Sec. 1, Rule 74 that
Procedure in extrajudicial settlement by it must be in a public instrument is not constitutive of
agreement the validity but is merely evidentiary in nature
Between/among heirs (Hernandez v. Andal, G.R. No. L-273, March 29, 1947).

Division of estate in public Under the new Rules, it would appear that a public
instrument or affidavit of instrument is now required for registration. If the
adjudication settlement is in a private instrument, it is believed that
The public instrument or
the same is still valid and reformation of the instrument
may be compelled (Arts. 1359, et. seq., New No. Extrajudicial settlement under Sec. 1 of Rule 74 is
Civil Code). an ex parte proceeding, and the rule plainly states that
persons who do not participate or had no notice of an
Extra Judicial Summary extrajudicial settlement will not be bound thereby, and
No court intervention. Requires summary contemplates a notice that has been sent out or issued
judicial before any deed of settlement or partition is agreed
adjudication. upon, and not after such agreement has already been
Value of the estate is Gross estate must not executed. The publication of the settlement does not
immaterial. exceed PhP10,000. constitute constructive notice to the heirs who had no
Allowed only in intestate Allowed in both testate knowledge or did not take part because the same was
succession. and notice after the fact of execution. The requirement of
intestate publication is geared for the protection of creditors and
There must be no It is available even if was never intended to deprive heirs of their lawful
outstanding debts of the there participation in the estate (Benatiro v. Heirs of Cuyos,
estate at the time of are debts; it is the court G.R. No. 161220, July 28, 2008).
settlement. which will make provision
for its payment Note: The other heirs are also not bound by thE
Resorted at the instance May be instituted by any extrajudicial settlement should the Deed of Extrajudicial
and by agreement of all interested party even by Partition or Affidavit of Self-Adjudication be false (Sec.
heirs. a 4 in relation to Sec. 1).
credit of the estate
without Remedies of the Aggrieved Parties after
the consent of all heirs. Settlement of the Estate
Amount of bond is equal Amount of bond is to be
to determined by the court. 1. Within 2 years - claim against the bond or the real
the value of personal estate or both (Sec.4, Rule 74);
property 2. Rescission in case of preterition of compulsory heir
Bond is filed with the Bond is filed with the in partition tainted with bad faith (Article 1104, NCC);
Register of Deeds. court. 3. Reconveyance of real property;
4. Action to annul a deed of extrajudicial settlement on
SECTION 2. SUMMARY SETTLEMENT OF ESTATES the ground of fraud which should be filed within 4 years
OF SMALL VALUE from the discovery of fraud;
5. Petition for Relief on the ground of FAME – fraud,
accident, mistake, excusable negligence – 60 days
The gross value of the estate must not exceed
after the petitioner learns of the judgment, final order
PhP10,000. In accordance with B.P. Blg. 129, the
or other proceeding to be set aside, and not more than
summary settlement of estates of small value is within
the jurisdiction of the MTCs. 6 months after such judgment or final order was entered
(Rule 38);
Important Requirements: 6. Reopening by Intervention within anytime before
1. Application must contain allegation of gross value of rendition of judgment, as long as it is within the
reglementary period of 2 years;
estate;
7. New action to annul settlement within reglementary
2. Date for hearing:
period of 2 years.
a. Shall be set by court not less than 1 month nor more
than 3 months from date of last publication of notice;
b. Order of hearing published, once a week for 3 An heir deprived of his share may file an action for
consecutive weeks in a newspaper of general reconveyance based on an implied or constructive trust
which prescribes 10 years from the date of registration
circulation.
or date of issuance of certificate of title or from actual
3. Notice shall be served upon such interested persons
discovery of fraud if the registration was made in bad
as the court may direct;
faith (Marquez v. Court of Appeals, G.R. No. 125715,
4. Bond in an amount fixed by the court (not value of
personal property) conditioned upon payment of just December 29, 1998)
claims under Sec. 4.
SECTION 5. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
SECTION 3. BOND TO BE FILED BY DISTRIBUTEES
If on the date of the expiration of the two-year period,
The amount of bond required under a summary
the creditor or heir is:
settlement is determined by the court, unlike in an
extrajudicial settlement where the amount is equal to 1. A minor; or
the value of the personal property as established by the 2. Incapacitated; or
instrument of adjudication (Regalado, p. 21). 3. In prison; or
4. Outside the Philippines. He may present his claim
within one year after such disability is removed (Sec. 5
Is a person who had no knowledge or had not
Rule 75).
participated in the extrajudicial settlement bound
thereby by reason of constructive notice of
publication? RULE 75
PRODUCTION OF WILL 2. Administrator, regular or special – the one
appointed by the Court in accordance with the Rules or
ALLOWANCE OF WILL NECESSARY governing
statutes to administer and settle the intestate estate
SECTION 1. ALLOWANCE NECESSARY. (Rule 80).
CONCLUSIVE AS TO EXECUTION
3. Administrator with a will annexed – the one
Nature of probate proceedings appointed by the court in cases when, although there is
1. In Rem: binding on the whole world (Regalado, p. a will, the will does not appoint any executor, or if
31). appointed, said person is either incapacitated or
2. Mandatory: no will shall pass either real or personal unwilling to serve as such (Rule RUU, Section 1).
property unless it is proved and allowed in the proper
court (Sec. 1, Rule 75). Who may serve as an executor or administrator?
Any competent person may serve as executor or
However, a will may be sustained on the basis of Article administrator
1080 of the Civil Code which states that: “If the testator
should make a partition of his properties by an act inter SECTION 1. WHO ARE INCOMPETENT TO SERVE AS
vivos, or by will, such partition shall stand in so far as it EXECUTORS OR ADMINISTRATORS
does not prejudice the legitime of the forced heir” 1. A minor;
(Mang-Oy v. Court of Appeals, G.R. No. L-27421, 2. A non-resident;
September 12, 1986). 3. One who in the opinion of the court is unfit to exercise
the duties of the trust by reason of:
3. Imprescriptible – because of the public policy to a. Drunkenness – when the habits of drink are carried
obey the will of the testator. so far as to cloud the brain and weaken their respect for
honesty and integrity; The drunkenness contemplated
4. The doctrine of estoppel does not apply. by this statute, undoubtedly, is that excessive,
The presentation and probate of the will is required by inveterate and continued use of intoxicants, to such an
public policy. It involves public interest (Fernandez v. extent as to render the subject of the habit as unsafe
Dimagiba, G.R. No. L-23638, October 12, 1967). against to entrust with the care of property or the
transaction of business (Herrera, p.
SECTION 2. CUSTODIAN OF WILL TO DELIVER 78).
The custodian must deliver the will to the court or to the b. Improvidence – means the want of care and
executor within 20 days after he learns of the death of foresight in the management of property which would
the testator. be likely to render the estate and effects of the intestate
unsafe and liable to be lost or diminished in value
SECTION 3. EXECUTOR TO PRESENT WILL AND (Black’s Law Dictionary, 5th ed., p.682).
ACCEPT OR REFUSE TRUST c. Want of understanding – amounts to lack of
intelligence such as would or might subject one to
The executor, within 20 days after he knows of the sinister influence or coercion against the general
testator’s death or after he knows that he is named an interest of the estate (Herrera, p.80).
executor if he knows it after the testator’s death, shall: d. Want of integrity – integrity is synonymous to
1. Present the will to the court (unless it has reached probity, honesty and uprightness in business relations
the court in any other manner); and with others. The accusation should be certain and
2. Signify in writing his acceptance or refusal of the grave in its nature (Herrera, p.80).
trust. e. Conviction for an offense involving moral
turpitude – an act of baseness, vileness or depravity in
Probate the private and social duties which a man owes his
The act of proving in a court a document purporting to fellow men, to society in general, contrary to the
be the last will and testament of a deceased person in accepted and customary rule of right and duty between
order that it may be officially recognized, registered and man and woman or conduct contrary to Justice,
its provisions carried out insofar as they are in honesty, modesty or good morals (Zari v.
accordance with the law (also referred to as allowance Flores, A.M. No. (2170-MC) P-1356 November 21,
of the will) (Jurado, Comments and Jurisprudence on 1979).
Succession,
2009, 9th Edition, p. 134). 4. The executor of an executor cannot administer the
estate of the first testator (Sec. 2).
RULE 78
Executor Administrator
LETTERS TESTAMENTARY AND OF Nominated by the Appointed by the court in
ADMINISTRATION, WHEN AND TO testator and appointed case the testator did not
WHOM ISSUED by court. appoint an executor or if
the executor refused
appointment(administrator
Who can administer the estate?
with a will annexed) or if
1. Executor – the one named by the testator in his will
the will was disallowed or if
for the administration of his property after his death.
a person did not make a for 30 days after the death of the decedent to apply for
will (intestate succession). administration by them or their nominee, any one or
Must present will to the No such duty. more of the principal creditors, if competent and willing
court within 20 days to serve; However, neglect of such persons to apply for
after letters administration for 30 days after death is not
he knows of the death sufficient to exclude the widow from the administration
of of the estate of her husband. There must be a very
testator or after he strong case to justify the exclusion of the widow from
knew the administration (Herrera, p. 84).
that he was appointed 3. If there is no such creditor competent and willing to
as serve, it may be granted to such other person as the
executor (if he obtained court may select (stranger).
such knowledge after
death Note: As a general rule, the court cannot set aside the
of testator), unless the order of preference under Sec. 6 Rule 78.
will
has reached the court in Exception: In case the persons who have the
any manner preferential right to be appointed under the rule are not
Testator may provide Required unless exempted competent or are unwilling to serve, administration or
that he may serve by law they neglect to apply for letters of administration for 30
without a bond (but days after the decedent’s death, the letters may be
court may direct him to granted to such other person as the court may appoint.
give a bond conditioned The order of appointment of regular administrator is
only to pay debts). final and appealable.
Compensation may be Compensation is governed
provided for by the by Sec. 7, Rule 85. Scope or limits of administration: The general rule
testator in the will, is that administration extends only to the assets of a
otherwise Sec. 7, Rule decedent found within the state or country where it was
85 will be followed. granted, so that an administrator appointed in one state
or country has no power over the property in another
Testamentary Privilege state or country (Leon v. Manufacturers Life Insurance
The right given by law to a person to dispose of his Co., G.R.
property when he dies. No. L-3677, November 29, 1951).

Letters Testamentary Note: A party indebted to the decedent’s estate cannot


An authority issued to an executor named in the will to compatibly perform the duties of an administrator and
administer the estate (Festin, p. 46). should not be appointed as such (Lim v. Diaz-Millarez,
G.R. No. L-17633, October 19, 1966). Where such fact
Letters of Administration of indebtedness was only subsequently discovered after
An authority issued by the court to a competent person the administrator had been duly appointed, he should
to administer the estate of the deceased who died not be removed, absent any other lawful ground
intestate (Dalisay, etc. v. Consolacion, etc., G.R. No. L-44702,
(Festin, p. 46). July 30, 1979).

Letters of Administration with a Will Annexed RULE 86


An authority issued by the court to a competent person CLAIMS AGAINST ESTATE
to administer the estate of the deceased if the executor
named in the will refused to accept the office or if the
SECTION 1. NOTICE TO CREDITORS TO BE ISSUED
person name is incompetent.
BY COURT
Money Claims
Order of preference in granting letters of
Claims for money, debt or interest thereon upon a
administration
liability contracted by the decedent before his death
(Festin, p. 75).
1. The surviving husband or wife or the next of kin, or
both in the discretion of the court, or to such person as
When may the court issue notices to creditors to
such surviving spouse or next of kin, requests to have
file their claims? Immediately after granting letters
appointed, if competent and willing to serve (surviving
testamentary or of administration. Claims arising after
spouse or next of kin or their nominee);
his death cannot be presented except for:
1. Funeral expenses; and
Next of Kin
2. Expenses of the last sickness of the decedent. Claims
Those persons who are entitled by law to receive the
for taxes (inheritance and estate) due and assessed
decedent’s property (Regalado, p. 46).
after the death of the decedent need not be presented
2. If the surviving spouse or the next of kin or the
in the form of a claim. The court in the exercise of its
person selected by them be incompetent or unwilling to
administrative control over the executor or
serve, or if the surviving spouse or next of kin neglects
administrator may direct the latter to pay such taxes
(Pineda v. CFI of Tayabas, G.R. No. L-30921, February lifetime arising from contract:
16, 1929). a. Express or implied;
b. Due or not due;
Statute of Non-Claims c. Absolute or contingent.
The period fixed by the rule for the filing of the claims 2. Claims for funeral expenses;
against the estate. 3. For the last illness of the decedent;
Reason for the rule: For the speedy settlement of the 4. Judgment for money against decedent.
affairs of the deceased and the early delivery of the
property to the distributees, legatees or heirs. Note: The enumeration is exclusive (Festin, p. 75).
A money claim arising from a crime of quasi-delict
Where to File Claims: All money claims must be committed by the decedent is not included in the
entertained by Settlement Court regardless of amount. concept of claims which have to be filed under this Rule
(Sec. 1) In other words, B.P. Blg. 129 is not applicable. but should be the subject of an action against the
executor or administrator (Sec. 1, Rule 87) or against
When to file claims the heirs (Belamala v. Polinar, G.R. No. L- 24098,
General Rule: Within the time fixed in the notice which November 18, 1967).
shall not be more than 12 months nor less than 6
months after the date of the first publication. Otherwise, Unpaid taxes are not covered by the statute of non-
they are barred forever. Even if the testator claims as these are monetary obligations created by law
acknowledged the debt in his will and instructed the (Vera, et al. v. Fernandez, et al., G.R. No. L- 31364,
executor to pay the debt, the statute of nonclaims must March 30,
still be complied with; otherwise the claim may also be 1979).
barred.
Absolute Claim
Exception: Belated claims Such a claim as, if contested between living persons,
Belated Claims would be proper subject of immediate legal action and
Claims not filed within the original period fixed by the would supply a basis of a judgment for a sum certain.
court. On application of a creditor who has failed to file Contingent Claim
his claim within the time previously limited, at any time A conditional claim or claim that is subject to the
before an order of distribution is entered, the court may, happening of a future uncertain event.
for cause shown and on such terms as are equitable, It has reference to the uncertainty of liability, and not
allow such claim to be filed within a time not exceeding to uncertainty of collection (Gaskell v. Tan Sit, G.R. No.
1 month from the order allowing belated claims. 18405, September 23, 1922). Claims not yet due or
contingent may be approved at their present value.
Note: The statute of non-claims supersedes the statute
of limitations insofar as the debts of deceased persons A deficiency judgment is a contingent claim and
are concerned because if a creditor fails to file his claim therefore, must be filed with the probate court where
within the time fixed by the court in the notice, then the the settlement of the deceased is pending, within the
claim is barred forever. However, both statute of non- period fixed for the filing of claims (First National City
claims and statute of limitations must concur in order Bank of New York v.
for a creditor to collect; thus, a creditor cannot claim, Cheng Tan, G.R. No. L-14234, February 28, 1962).
even if within the statute of non-claims, if his claim has
already prescribed under the statute of limitations. Claims extinguished by Actions which survive
However, a creditor barred by the Statute of Non-claims death
may file a claim as a counterclaim in any suit that the Personal to either of the Claim is not extinguished
executor or administrator may bring against such parties and is by death but shall be
creditor (Sec 5). extinguished by death prosecuted as a money
Good excuse for late filing claim against the estate
The pendency of the action before the regular courts of the deceased
was cited as a good excuse for the tardiness of the claim Examples: legal Example: contractual
(Echaus v. Blanco, G.R. No. L-30453, December 4, separation, annulment of money claim
1989). marriage, declaration of
nullity of marriage
SECTION 5. CLAIMS WHICH MUST BE FILED
UNDER NOTICE. IF NOT FILED, BARRED; Where the defendant dies while the action for a sum of
EXCEPTIONS. money is pending against him in the Court of Appeals,
Claims referred to under this section refer to claims for he shall be substituted therein by his legal
the recovery of money and which are not secured by a representative but the final judgment of the appellate
lien against the property of the estate (Olave v. Canlas, court shall not be enforceable by a writ of execution but
G.R. No. L-12709, February 28, 1962). If the claim is should be filed in the probate court as a money claim in
secured; apply Sec. 7 of this Rule. accordance with Sec. 5 of Rule 86 (Paredes, et al. v.
Moya, G.R. No. L- 38051, December 26, 1973). If none
Claims which should be filed under the Statute of of the heirs is willing to be substituted defendant, the
Non-claims creditor has to procure the appointment of an
1. Money claims, debts incurred by deceased during his executor/administrator (Sec. 16,
Rule 3). SECTION 9. HOW TO FILE A CLAIM. CONTENTS
THEREOF. NOTICE TO EXECUTOR OR
If a final judgment had already been rendered against ADMINISTRATOR
the decedent prior to his death, but without levy on How to file a claim:
execution having been effected against his property, 1. Deliver the claim with the necessary vouchers to the
such judgment must also be filed as a claim against the clerk of court;
estate in the manner provided for by this Rule. If levy 2. Serve a copy thereof on the executor or
has already been made before his death, execution shall administrator;
proceed (Sec. 7 3. If the claim is due, it must be supported by an
[c], Rule 39). affidavit
stating the amount due and the fact that there has been
SECTION 6. SOLIDARY OBLIGATION OF no offsets;
DECEDENT 4. If the claim is not due or contingent, it must be
Claim should be filed against decedent as if he were the accompanied by an affidavit stating the particulars
only debtor without prejudice on the part of the estate thereof.
to recover contribution from the other debtor.
RULE 91
Joint obligation of decedent
The claim must be confined to the portion belonging to ESCHEATS
the decedent.
Escheat
Creditor holding a claim secured by a mortgage or The proceeding whereby the real and personal property
other collateral security of a deceased person in the Philippines, who dies
Alternative remedies: (AFR) without leaving any will (or if the will was not allowed,
1.Abandon or waive the security and prosecute his claim hence, intestacy) and without any legal heirs, becomes
against the estate and share in the general distribution the property of the State upon his death.
of the assets of the estate;
2. Foreclose his mortgage or realize upon his security Nature of escheat proceedings: Escheat is not an
by action in court making the executor or administrator ordinary civil action but a special proceeding that should
a party defendant and if there is judgment for be commenced not by complaint but by petition
deficiency, he may file a claim (contingent) against the (Municipal Council of San Pedro, Laguna v. Colegio de
estate within the statute of non-claims; San Jose,G.R. No. L-45460, February 25, 1938).
3.Rely solely on his mortgage and foreclose (judicially
or extrajudicially) the same at anytime within the period Three instances of escheats
of the statute of limitations but he cannot be admitted 1. When a person dies intestate leaving no heir but
as creditor and shall not receive in the distribution of the leaving property in the Philippines (Section 1);
other assets of the estate. 2. Reversion Proceedings – Sale in violation of the
Constitutional provision; This shall be governed by Rule
Note: The mortgage creditor can avail of only one of the 91. However, the action must be instituted in the
three remedies and if he fails to recover under that province where the land lies in whole or in part.
remedy he can not avail of any of the other two
remedies (Bachrach Motor Co., Inc., v. Icarangal, G.R. Note: Reversion will not be allowed even if the original
No. L-45350, buyer was an alien, if later on the title to the property
May 29,1939). was transferred by succession to the buyer’s heirs who
are qualified parties, i.e. Philippine citizens (see
The rule reserves a right to the executor or Republic v. Registry of Deeds of Roxas City, G.R. No.
administrator of an estate to redeem a mortgaged or 158230, 16 July 2008).
pledged property of a decedent which the mortgage or
pledgee has opted to foreclose, instead of filing a money 3. Unclaimed Balances Act (dormant accounts for 10
claim with the probate court, under said Section 7 of years shall be escheated).
Rule 86. While the redemption is subject to the approval
of the probate court, the exercise of the right is Escheat under the Unclaimed Balances Acts must be
discretionary upon the said executor or administrator filed in the RTC of the place where the dormant
and may not be ordered by the Probate court upon its deposits are found.
own motion (Manalansan v. Castaneda, G.R. No. L-
43607, June 27, 1978). What is the basis of the state’s right to receive
property in escheat? Order of succession under the
SECTION 8. CLAIM OF EXECUTOR OR Civil Code, the state is the last heir of the decedent.
ADMINISTRATOR AGAINST AN ESTATE
This is one of the instances where a special Who is the real party in interest? In all actions for
administrator is appointed. The special administrator the reversion to the Government of lands of the public
will have authority to act only with respect to the claim domain or improvements thereon, the Republic of the
of the regular administrator or the executor (Regalado, Philippines is the real party in interest. The action shall
p. 83). be instituted
by the Solicitor General or the officer acting in his stead,
In behalf of the Republic of the Philippines (Luis B. Note: Under Art. 1014 of the Civil Code, the 5-year
Manese, period is reckoned from the date the property was
et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January delivered to the state and further provides that if the
29, 2009). property had been sold, the municipality or city shall be
accountable only for such part of the proceeds as may
Where to file: not have been lawfully spent.
Resident – RTC of last residence.
Non-Resident – RTC of the place where his estate is By whom: A person with interest.
Located Proceedings in escheat cannot be converted into
Requisites for filing of petition: settlement of the estate. For the distribution of the
1. That a person died intestate; estate of the decedent to be instituted, the proper
2. That he left no heirs or persons by law entitled to the petitions must be presented and the proceedings should
same; and comply with the requirements of the Rule. An escheat
3. The deceased left properties. court does not have the power to order or proceed with
the distribution of the estate of a decedent in escheat
ORDER FOR HEARING proceedings and adjudicate the properties to the
If the petition is sufficient in form and substance the oppositors (Municipality of Magalloon, Negros Occ. v.
court shall: Ignatius Henry Bezore, G.R. No. L- 14157, October 26,
1. Make an order of hearing – hearing shall not be more 1960).
than 6 months after entry of order;
2. Direct the publication of a copy of the order – at least RULES ON DOMESTIC ADOPTION
once a week for 6 consecutive weeks. (Secs. 1-25, A.M. No. 02-6-02)
Remedy of respondent: When the petition does not
state facts which entitle the petitioner to the remedy Procedure for Domestic Adoption under AM-02-6-
prayed for, the respondent may file a Motion to Dismiss 02-
the petition SC
(Herrera, p.227).
Petition for Domestic
HEARING AND JUDGMENT Adoption
Requisites: Order of Hearing by the
1. Publication of the order; court
2. Person died intestate; Child and Home Study
3. He is seized of real/personal property in the Reports by the Social
Philippines; Worker
4. He left no heir or person entitled to such property; Hearing on the Petition for
and Adoption
5. There is no sufficient cause to the contrary. Supervised Trial Custody
Adoption Decree issued
To whom the property escheated will be assigned: by the court
1. If personal property – to the municipality or city
where he last resided;
2. If real property – to the municipality or city where the Who may adopt (Sec.4)
property is situated; A.Any Filipino Citizen –
3. If deceased never resided in the Philippines – to the 1. Of legal age;
municipality or city where the property may be found. 2. In possession of full civil capacity and legal rights;
The court, at the instance of an interested party, or on 3. Of good moral character;
its own motion, may order the establishment of a 4. Has not been convicted of any crime involving moral
permanent trust, so that only the income from the turpitude;
property shall be used (Sec. 3, Rule 91). 5. Emotionally and psychologically capable of caring for
The right to escheat may be waived expressly or children;
impliedly (Herrera, p.229) 6. At least 16 years older than the adoptee.

Who may file a claim on the escheated property: Except: when the adopter is the adoptee’s biological
Any devisee, legatee, heir, widow/er, or other person parent or the spouse of the adoptee’s parent; and
entitled thereto.
7. In a position to support and care for his/her children
When to File: Within 5 years from date of judgment, inkeeping with the means of the family.
otherwise it will be barred forever.
B.Any alien possessing the same qualifications as
Rationale: To encourage would-be claimants to be above, Provided:
punctual in asserting their claims (Festin, p.103). 1. That his country has diplomatic relations with the
Philippines;
Period of filing claim: Within 5 years from the date of 2. That he has been living in the Philippines for at least
judgment. 3 continuous years prior to the filing of the application
for adoption; 19-SC) under special laws
3. Maintains residence until the adoption decree is
entered; Joint adoption of spouses
4. Certified by his diplomatic or consular office or any General rule: Husband and wife shall jointly adopt (Art.
appropriate government agency to have legal capacity 185, Family Code).
to adopt by his country; and Exceptions:
5. That his government allows the adoptee to enter his 1. If one spouse seeks to adopt the legitimate child of
country as his adopted child. the other;
2. If one spouse seeks to adopt his own illegitimate
The requirements on residency and certification of son/daughter, provided that the other spouse has
the alien’s qualification to adopt in his country signified his consent thereto;
may be waived for the following: 3. If the spouses are legally separated from each other
a. A former Filipino citizen who seeks to adopt a relative (Sec. 4, A.M. 02-6-02-SC).
within the 4th degree of consanguinity or affinity; or This is in consonance with the concept of joint parental
b. One who seeks to adopt the legitimate child of his authority over the child which is the ideal situation. As
Filipino spouse; or the child to be adopted is elevated to the level if
c. One who is married to a Filipino citizen and seeks to illegitimate child, it is but natural to require both the
adopt jointly with his spouse a relative within the 4th spouses to adopt jointly (Republic v. Toledano, G.R. No.
degree of consanguinity or affinity of the Filipino 9447, June 8,
spouse. 1994).
d. guardian with respect to the ward after the
termination of the guardianship and clearance of his Venue (Sec.6)
financial accountabilities. Family Court where the prospective adoptive parents
reside.
Who may be adopted (Sec. 5)
1. Any person below 18 years of age who has been Contents of the petition (Sec.7)
judicially declared available for adoption or voluntarily A.If the adopter is a Filipino citizen, the petition
committed to DSWD; shall
2. The legitimate child of one spouse, by the other allege the following:
spouse; 1. The jurisdictional facts;
3. An illegitimate child, by a qualified adopter to raise 2. That the petitioner is of legal age, in possession of
the status of the former to that of legitimacy; full civil capacity and legal rights; is of good moral
4. A person of legal age regardless of civil status, if, character; has not been convicted of any crime involving
prior to the adoption, said person has been consistently moral turpitude; is emotionally and psychologically
considered and treated by the adopters as their own capable of caring for children; is at least 16 years older
child since minority; than the adoptee, unless the adopter is the biological
5. A child whose adoption has been previously parent of the adoptee or is the spouse of the adoptee’s
rescinded; parent; and is in a position to support and care for his
6. A child whose biological or adoptive parents have children in keeping with the means of the family and has
died, but no proceedings shall be initiated within 6 undergone pre-adoption services as required by
months from the time of death of said parents; Section 4 of R.A. No. 8552.
7. A child not otherwise disqualified by law or these
rules. B.If the adopter is an alien, the petition shall
allege the following:
“A child legally available for adoption” 1. The jurisdictional facts
It refers to a child who has been voluntarily or 2. Sub-paragraph A.2 above;
involuntarily committed to the DSWD or to a duly 3. That his country has diplomatic relations with the
licensed and accredited child-placing or child caring Republic of the Philippines;
agency, freed of the parental authority of his biological 4. That he has been certified by his diplomatic or
parents, or in case or rescission of adoption, his consular office or any appropriate government agency
guardian or adopter/s (Sec. to have the legal capacity to adopt in his country and
3). his government allows the adoptee to enter his country
as his adopted child and reside there permanently as an
Two ways to commit a child adopted child; and
1. Administrative/Voluntary: In this case, the parent 5. That he has been living in the Philippines for at least
or guardian of the child voluntarily committed him to the three (3) continuous years prior to the filing of the
DSWD or any duly licensed child placement or child petition and he maintains such residence until the
caring agency. The child must be surrendered in writing. adoption decree is entered.
Such written instrument must be notarized and signed
in the presence of an authorized representative of the C.If the adopter is the legal guardian of the
department after counseling has been made to adoptee:
encourage the parents to keep the child (Sec. 5, AM 02- The petition shall allege that guardianship had been
1-19-SC). terminated and the guardian had cleared his financial
2. Judicial/Involuntary: Follow the procedure in accountabilities.
Proposed Rule on Commitment of Children (AM 02-1-
D.If the adopter is married, the spouse shall be a September 25, 1998).
copetitioner for joint adoption except if:
1. One spouse seeks to adopt the legitimate child of the
other; or Confidentiality of proceedings and records
2. One spouse seeks to adopt his own illegitimate child General Rule: After compliance with jurisdictional
and the other spouse signified written consent thereto; requirements, all adoption hearings shall be confidential
or and shall not be open to the public. All related records
3. The spouses are legally separated from each other. shall be kept strictly confidential (Sec. 18).

E.If the adoptee is a foundling: Exception: For security reasons or for the best interest
The petition shall allege the entries which should appear of the child, the Court may, upon meritorious grounds
in his birth certificate, such as name of child, date of allow the release of the information with restrictions, if
birth, place of birth, if known; sex, name and citizenship necessary (Herrera, p. 348).
of adoptive mother and father, and the date and place
of their marriage. Effects of adoption
1. Adopter will exercise parental authority;
F.If the petition prays for a change of name: 2. All legal ties between biological parents and the
It shall also state the cause or reason for the change of adoptee shall be severed, except when biological parent
name. is spouse of adopter;
3. Adoptee shall be considered legitimate child of
All petitions shall allege: adopter for all intents and purposes;
1. The first name, surname or names, age and residence 4. Adopters shall have reciprocal rights of succession
of the adoptee as shown by his record of birth, baptismal without distinction from legitimate filiation.
or foundling certificate and school records; The decree of adoption shall have a retroactive effect
2. That the adoptee is not disqualified by law to be from the time of the petition.
adopted; “It is a settled rule that adoption statutes, being human
3. The probable value and character of the estate of the and salutary, should be liberally construed to carry out
adoptee; the beneficent purposes of adoption. x x x. Hence, since
4. The first name, surname or names by which the there is no law prohibiting an illegitimate child adopted
adoptee is to be known and registered in the Civil by her natural father, x x x, to use, as middle name her
Registry. mother’s surname, we find no reason why she should
not be allowed to do so” (In Re: Adoption of Stephanie
The petition shall be verified with a certificate of Nathy Garcia, G.R. No. 148311, March 31, 2005).
nonforum shopping and specifically state at the heading
of the initiatory pleading whether the petition contains Who may rescind the adoption? The adopter cannot
an application for a change of name, rectification of rescind the adoption, only the adoptee may rescind
simulated birth, voluntary or involuntary commitment of within 5 years from reaching the age of majority or after
children, or declaration of child as abandoned, recovery from incompetency. Such a petition for
dependent or neglected. rescission shall be filed in the Family Court where the
adoptee resides. In case of a minor, he shall be assisted
Adoption of a foundling, an abandoned, dependent by a social work from DSWD or by the minor’s guardian,
or neglected child if he is over 18 years of age but is incapacitated.
The petition shall allege: The adopter may not rescind the adoption; however, he
1. The facts showing that the child is a foundling, may disinherit the adopted child (Art. 919, Civil Code).
abandoned, dependent or neglected;
2. The names of the parents, if known, and their Grounds for rescission (Sec. 19)
residence. If the child has no known or living parents, 1. Repeated physical and verbal maltreatment despite
then the name and residence of the guardian, if any; having undergone counseling;
3. The name of the duly licensed child-placement 2. Attempt on the adoptee’s life;
agency or individual under whose care the child is in 3. Sexual assault or violence;
custody; and 4. Abandonment or failure to comply with parental
4. That the Department, child-placement or child-caring obligations.
agency is authorized to give its consent (Sec. 9).
INTER-COUNTRY ADOPTION
Abandonment
In its ordinary sense, it means to forsake entirely, to Objectives
renounce utterly (Herrera, p. 351). 1. To consider inter-country adoption as an alternative
In reference to abandonment of a child by his parent, means of child care, if the child cannot be placed in a
the act of abandonment imports “any conduct of the foster/adoptive family or cannot be cared for in the
parent which evinces a settled purpose to forego all Philippines;
parental duties and relinquish all parental claims to the 2. To ensure that the child enjoys the same protection
child.” It means “neglect or refusal to perform the accorded to children in domestic adoption;
natural and legal obligations of care and support, which 3. To ensure that the placement does not result in
parents owe their children” (Cang v. Court of Appeals, improper financial gain for those involved (Sec. 27).
G.R. No. 105308, Where to file petition
1. A verified petition to adopt a Filipino child may be congenial to the survival, protection, and feelings of
filed by a foreign national or Filipino citizen permanently security of the minor encouraging to his physical,
residing abroad with the Family Court having jurisdiction psychological and emotional development. It also
over the place where the child resides or may be found; means the least detrimental available alternative for
2. It may be filed directly with the Inter-Country safeguarding the growth and development of the minor
Adoption Board (Sec. 28). (Sec. 14 A.M. No. 03-04-04-SC 2003-04-22).
Who may adopt:
1. Any alien or Filipino citizen permanently residing RULE 102
abroad who is at least twenty-seven (27) years of age; HABEAS CORPUS
2. Other requirements are the same as with R.A. No.
8552. Writ of Habeas Corpus
Who may be adopted: Only a child legally available A writ directed to the person detaining another and
for domestic adoption may be the subject of inter- commanding him to produce the body of the prisoner at
country adoption (Sec.29). a certain time and place, with the day and the cause of
his caption and detention, to do, submit to, and receive
A child under the Inter-Country Adoption Act is whatsoever the court or judge awarding the writ shall
defined as any person below fifteen (15) years of consider in that behalf (Ilusorio v. Bildner, G.R. No.
age. In domestic adoption “Child” is defined a person 139789, May 12, 2000).
below 18 years of age.
The function of the special proceeding of habeas corpus
The Board shall ensure that all possibilities for adoption is to inquire into the legality of one’s detention. In all
of the child under the Family Code have been exhausted petitions for habeas corpus, the court must inquire into
and that inter-country adoption is in the best interest of every phase and aspect of petitioner’s detention – from
the child (Section 7, R.A. No. 8043). the moment petitioner was taken into custody up to the
moment the court passes upon the merits of the petition
Contents of petition and “only after such a scrutiny can the court satisfy itself
Petitioner must allege: that the due process clause of our Constitution has been
1. His age and the age of the child to be adopted, satisfied (Bernarte v. Court of Appeals, G.R. No.
showing that he is at least twenty-seven (27) years of 107741. October 18, 1996).
age and at least sixteen (16) years older than the child
to be adopted at the time of application, unless the
petitioner is the parent by nature of the child to be Certiorari, Prohibition, Habeas Corpus
adopted or the spouse of such parent, in which case the Mandamus
age difference does not apply; Special Civil Action (Rule Special Proceeding
2. If married, the name of the spouse who must be 65)
joined as co-petitioner except when the adoptee is a It reaches the record but It reaches the body but
legitimate child of his spouse; not the body; concerned not
3. That he has the capacity to act and assume all rights with errors committed by the record; inquiry on the
and responsibilities of parental authority under his a legality of the detention.
national laws, and has undergone the appropriate court.
counseling from an accredited counselor in his country; Direct attack. Collateral attack.
4. That he has not been convicted of a crime involving Failure of respondent to Failure to file return
moral turpitude; file constitutes contempt
5. That he is eligible to adopt under his national law; comment will not be (indirect).
6. That he can provide the proper care and support and punished by contempt
instill the necessary moral values and example to all his and
children, including the child to be adopted; will not even be declared
7. That he agrees to uphold the basic rights of the child, in
as embodied under Philippine laws and the U.N. default.
Convention on the Rights of the Child, and to abide by Court and prevailing Respondent is the
the rules and regulations issued to implement the party detainer
provisions of R.A. No. 8043; are named as
8. That he comes from a country with which the respondents
Philippines has diplomatic relations and whose
government maintains a similarly authorized and Kinds of Writ of Habeas Corpus
accredited agency and that adoption of a Filipino child is 1. Preliminary citation – If the person is detained
allowed under his national laws; and under governmental authority and the illegality of his
9. That he possesses all the qualifications and none of detention is not patent from the petition for the writ, the
the disqualifications provided in this Rule, in R.A. No. court issues the citation to the government officer
8043 and in all other applicable Philippine laws (Sec. having custody to show cause why the writ of habeas
30). corpus should not issue.
2. Peremptory writ – If the cause of the detention
“Best interest of the minor” standard appears to be patently illegal. Noncompliance with this
“Best interest of the minor” standard refers to the is punishable.
totality ofthe circumstances and conditions as are most
TO WHAT HABEAS CORPUS EXTENDS 4. The writ is not ordinarily granted where the law
1. Cases of illegal confinement or detention by which a provides for other remedies in the regular course, and
person is deprived of his liberty; and in the absence of exceptional circumstances.
2. Cases by which the rightful custody of the person is 5. Habeas corpus should not be granted in advance of
withheld from the person entitled thereto. trial.
Note: Actual physical restraint is not required; any 6. Habeas corpus is a summary remedy.
restraint which will prejudice freedom of action is 7. The writ of habeas corpus does not act upon the
sufficient prisoner who seeks relief, but upon the person who
(Moncupa v. Enrile, G.R. No. 63345, January 30, 1986). holds him in what is alleged to be the unlawful authority.
Hence, the only parties before the court are the
When availed of (As a consequence of a judicial petitioner (prisoner) and the person holding the
proceeding): petitioner in custody, and the only question to be
1. There has been a deprivation of a constitutional right resolved is whether the custodian has authority to
resulting in the restraint of a person; deprive the petitioner of his liberty. The writ may be
2. The court had no jurisdiction to impose the sentence; denied if the petitioner fails to show facts that he is
3.An excessive penalty has been imposed, as such entitled thereto ex merito justicias.
sentence is void as to such excess; 8. A writ of habeas corpus, which is regarded as a
4. Where the law is amended, as when the penalty is “palladium of liberty” is a prerogative writ which does
lowered. Obtain freedom after serving minimum not issue as a matter of right but in the sound discretion
sentence when the penalty under an old law has been of the court. It is, however, a writ of right on proper
reduced by an amendatory law (Cruz v. Director of formalities being made by proof. Resort to the writ is
Prisons, G.R. No. L-6497, November 3, 1910); not to inquire into the criminal act of which a complaint
5. Denial of right to a speedy trial (since it is is made but unto the right of liberty, notwithstanding
jurisdictional); the act, and the immediate purpose to be served is relief
6. Where the results of post-conviction DNA testing are from the illegal restraint.
favorable to the convict.
7. Enable the parents to regain custody of a minor child, Purpose: The essential object and purpose of the writ
even if the latter be in the custody of a third person of of involuntary restraint as distinguished from voluntary,
her own free will (Salvaña v. Gaela, G.R. No. L-341155, and to relieve a person therefrom if such restraint is
February 21, 1931); illegal (Moncupa v. Enrile, G.R. No. 63345, January 30,
8. In determining the constitutionality of a statute 1986).
(People of the Philippines v. Vera, G.R. No. L-45685,
November 16,1937); The ultimate purpose of the writ of habeas corpus is to
9.When testing the legality of an alien‘s confinement relieve a person from unlawful restraint (Castriciones v.
and proposed expulsion from the Philippines (Lao Tang Chief of Staff of Armed forces of the Philippines, G.R.
Bun v. Fabre, G.R. No. L-1673, October 22, 1948); No. 65731, September 28, 1989).
10.In permitting an alien to land in the Philippines (Lim
Cheng v. Insular Collector of Customs, G.R. No. The writ of habeas corpus was devised and exists as a
16406, September 13, 1920); speedy and effectual remedy to relieve persons from
11.In determining the legality of an extradition (United defense of personal freedom. And any further rights of
States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425, the parties are left untouched by decision on the writ,
December 6, 1886). whose principal purpose is to set the individual at liberty
(Villavicencio v. Lukban, G.R. No. L-14639, March 25,
Nature of the petition: Petition for habeas corpus, 1919).
which is an inquisition by the government, at the
suggestion and instance of an individual, most probably, Grounds for suspension of the privilege of the writ
but still in the name and capacity of the sovereign is like of habeas corpus under the Constitution
a proceeding in rem. It is also instituted for the purpose 1. Invasion, when public safety requires it;
of fixing the status of a person and that there can be no 2. Rebellion, when public safety requires it (Article VII,
judgment entered against anybody since there is no real Section 18 of the 1987 Constitution)
plaintiff and defendant (Alimpoos v. Court of Appeals, In cases of illegal confinement or detention
G.R. No. L- 27331, July 30, 1981). General rule: The release, whether permanent or
temporary, of a detained person renders the petition for
1. It is not in the nature of a writ of error; nor intended habeas corpus moot and academic.
as substitute for the trial court’s function. The writ
cannot be used to investigate and consider questions of Exception: When there are restraints attached to his
error that might be raised relating to procedure or on release which precludes freedom of action, in which case
the merits. the court can still inquire into the nature of his
2. It cannot take the place of appeal, certiorari or writ involuntary restraint (Villavicencio v. Lukban, G.R. No.
of error. L- 14639, March 25, 1919).
3. The inquiry in a habeas corpus proceeding is In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
addressed to the question of whether the proceedings 166682, November 27, 2009), the Court held that the
and the assailed order are, for any reason, null and mere production of child in the habeas corpus case does
void. not warrant outright dismissal. A trial to determine who
had rightful custody over the child should be conducted Scope of effectivity
by the court.
Collegiate Court RTC
Voluntary Restraint Enforceable throughout Enforceable only within
General Rule: Writ not available if restraint is voluntary the their respective judicial
(Kelly v. Director of Prisons, G.R. No. L-20478, March Philippines. region.
14, 1923). Returnable to any court. Returnable only to itself.

Exception: Writ will lie to enable the parents (or person REQUISITES FOR APPLICATION
having substituted parental authority) to recover THEREFOR
custody of a minor child although she is in custody of a
3rd person on her own volition (Tijing v. Court of Who may apply:
Appeals, G.R. No. 125901, March 8, 2001). 1. Party for whose relief it is intended; or
Note: Voluntariness is viewed from the point of view of 2. Some person on his behalf.
the person entitled to custody.
Verified petition must set forth:
When petition for habeas corpus not proper: 1. That the person in whose behalf the application is
1. For asserting or vindicating denial of right to bail; made is imprisoned or restrained of his liberty;
2.For correcting errors in appreciation of 2. The name of the person detaining another;
facts/appreciation of law. 3.The place where he is imprisoned or restrained of his
liberty;
Whether the petition for the writ of habeas corpus 4. The cause of his detention;
may be properly filed together with the petition 5. The verified petition must be signed.
for certiorari and mandamus: The writs of habeas
corpus and certiorari may be ancillary to each other Note: The formalities required for petitions for habeas
where necessary to give effect to the supervisory corpus must be construed liberally. Strict compliance
powers of the higher courts. with the technical requirements for a habeas corpus
Hence, a writ of habeas corpus may be used with the petition may be dispensed with where the allegations in
writ of certiorari for the purpose of review (Galvez v. the application are sufficient to make out a case for
Court of Appeals, G.R. No. 114046, October 24, 1994). habeas corpus (Fletcher v. Director of Bureau of
Corrections, UDK-14071, July 17, 2009).
WHO MAY GRANT THE WRIT
The RTC, CA, and SC have concurrent jurisdiction to WHEN WRIT NOT ALLOWED OR
issue writs of habeas corpus. DISCHARGED AUTHORIZED
(JUCIT)
The MTC, by virtue of 1. If jurisdiction appears after the writ is allowed;
special jurisdiction under B.P. Blg. 129, can issue the 2. If the person is in the custody of an officer under
writ in case there is no available RTC judge. process issued by a court or by virtue of a judgment or
order of a court of record which has jurisdiction to issue
Hierarchy of courts is not observed. the process, render the judgment or make the order;
3. If the person is charged with or convicted of an
The writ issued by the RTC is enforceable within its offense in the Philippines;
territorial jurisdiction. While the writ issued by CA or Sc 4. If the person is suffering imprisonment under lawful
is enforceable anywhere in the Philippines. judgment.
5. Three (3)-day detention of a suspect for three (3)
The Sandiganbayan may issue writs of habeas corpus days without charge (Sec. 18, Ra No. 9372 “Human
only if it is in aid of its appellate jurisdiction. This Security Act of 2007” to take effect on July 14, 2007).
provision is another exception to the rule that processes
of the Regional Trial Court are enforceable throughout Supervening events may bar release: Even if the
the Philippines (Regalado, p. 176). Family Courts have arrest of a person is illegal, supervening events may bar
exclusive jurisdiction to issue writs of habeas corpus release or discharge from custody. What is to be
involving custody of minors. inquired into is the legality of his detention as of, at the
earliest, the filing of the application for the writ of
The use of habeas corpus, not a petition for mandamus, habeas corpus, for even if the detention is at its
to test the legality of an alien’s detention and proposed inception illegal, it may, by reason of some supervening
because aside from being thorough and complete, it events such as the instances mentioned in Sec. 4, be no
affords prompt relief from unlawful imprisonment longer illegal at the time of the filing of the application
(Bisschop v. Galang, G.R. No. L-18365, May 31, 1963). (Velasco v. Court of Appeals, G.R.
No. 118644, July 7, 1995).
A petition for habeas corpus cannot be granted if the
accused has only served the minimum of his sentence Note: Posting of bail is not a waiver. Under the Revised
as he must serve his sentence up to its maximum term Rules on Criminal Procedure, as application for bail is
(Office of the Court Administrator v. Judge Perello, A.M. not necessarily a bar to challenge the validity of the
No. RTJ-05-1953, 24 December 2008). arrest
(Sec. 26, Rule 114).
3. By order of proper court or judge directing that he be
TO WHOM WRIT DIRECTED, AND WHAT removed from one place to another within the
TO REQUIRE Philippines for trial;
A.In case of imprisonment or restraint by an officer: 4. In case of fire, epidemic, insurrection or other
1. The writ shall be directed to him; necessity or public calamity.
2.The officer shall produce the body of the person
before the court. RULE ON WRIT OF AMPARO
3. State the cause of detention and prove his authority.
B.In case of imprisonment or restraint by a person not (A.M. No. 07-9-12-SC, September 25,
an officer: 2007)
1. The writ shall be directed to an officer;
2. The officer shall take and produce the body of the Writ of Amparo
person before the court; A remedy available to any person whose right to life,
3. The officer shall summon the person detaining liberty and security is violated or threatened with
another to appear before the court to show the cause violation by an unlawful act or omission of a public
of the imprisonment or restraint. official or employee, or of a private individual or entity.
It covers extralegal killings and enforced
HOW WRIT EXECUTED AND RETURNED disappearances or threats thereof (applicable in pending
General rule: Officer to whom writ is directed shall cases due to the remedial nature of the writ).
convey the detained person on the day specified in the
writ: Extralegal Killings
1. Before the judge who allowed the writ; Killings committed without due process of law (e.g.
2. If he is absent, before any judge of the same court. salvage, summary and arbitrary executions).
Exception: If the person to be produced has sickness
or infirmity such that he cannot be brought before the Enforced Disappearances
court without danger. Arrest, detention or abduction of a person by a
Officer shall: government officer or organized groups or private
1. Convey the person so imprisoned before the judge, individuals acting with direct or indirect acquiescence of
unless from sickness or infirmity, such person cannot, the government; refusal of the state to disclose the fate
without danger be brought before the court. or whereabouts of the person concerned or refusal to
2. Make the return of the writ together with the day and acknowledge the deprivation of liberty which places
the cause of caption or restraint. such persons outside the protection of law.
1. Writ of Amparo (“to protect”) – originated in
DEFECT OF FORM Mexico;
No writ can be disobeyed for defect of form if it 2.Amparo Libertad – for the protection of personal
sufficiently states: freedom equivalent to Habeas Corpus writ;
1. The person in whose custody or under whose restraint 3.Amparo Contra Leyes – for judicial review of
the party imprisoned or restraint is held; and constitutionality of statutes;
2. The court or judge before whom he is to be brought. 4.Amparo Casacion – for judicial review of
constitutionality and legality of judicial decisions;
PERSON DISCHARGED NOT TO BE 5.Amparo Administrativo – for judicial review of
AGAIN IMPRISONED administrative actions; and
6.Amparo Agrario – protection of peasant’s rights
General Rule: A person who is set at liberty upon a writ derived from agrarian reform process (Secretary of
of habeas corpus shall not be again imprisoned for the National Defense v. Manalo, G.R. No. 180906, October
same offense. 7, 2008).
Exception: He is imprisoned by virtue of lawful order
or process of court having jurisdiction of the offense or Limited to life, liberty and security because there are
cause. other enforced remedies.
Whether the State can reserve the power to re-
arrest a person for an offense after a court of Broad enough to encompass both actual and threatened
competent jurisdiction has absolved him of the violation of human rights.
offense:
Ruling: Such a reservation is repugnant to the principle Who may file (order of preference): By the
that the government is one of laws and not of men. aggrieved party or by any qualified person or entity in
Under this principle, the moment a person is acquitted the following order:
of a criminal charge he can no longer be detained or 1. Any member of the immediate family, namely: the
rearrested for the same offense (Toyoto v. Ramos, G.R. spouse, children and parents of the aggrieved party;
No. L-69270 October 15, 1985). 2. Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
WHEN PRISONER MAY BE REMOVED consanguinity or affinity, in default of those mentioned
FROM ONE CUSTODY TO ANOTHER in the preceding paragraph; or
1. By legal process; 3. Any concerned citizen, organization, association or
2. Prisoner is delivered to an inferior officer to carry to institution, if there is no known member of the
jail; immediate family or relative of the aggrieved party.
Filing of a petition by the aggrieved party suspends the 7. Reply;
right of all other authorized parties to file similar 8. Motion to declare respondent in default;
petitions. Likewise, the filing of the petition by an 9. Intervention;
authorized party on behalf of the aggrieved party 10.Memorandum;
suspends the right of all others, observing the order 11.Motion for reconsideration of interlocutory orders or
established herein (Sec. 2). interim relief orders; and
Ratio: To prevent the indiscriminate and groundless 12.Petition for certiorari, mandamus or prohibition
filing of petitions for amparo which may even prejudice against any interlocutory order (Sec. 11).
the right to life, liberty or security of the aggrieved The filing of motion for new trial and petition for relief
party. from judgment are allowed because denial of these
remedies may jeopardize the rights of the aggrieved
Where to file: party. (Annotation to the Writ of Amparo).
1. Regional Trial Court where the threat, act or omission
was committed or any of its elements occurred; Interim reliefs available to petitioner (TIP)
2. With the Sandiganbayan, Court of Appeals, the 1. Temporary protection order – The court, justice or
Supreme Court or any justice of such courts. judge, upon motion or motu proprio, may order that the
petitioner or the aggrieved party and any member of the
This writ shall be enforceable anywhere in the immediate family be protected in a government agency
Philippines. or by an accredited person or private institution capable
of keeping and securing their safety. If the petitioner is
Where returnable; enforceable an organization, association or institution referred to in
1. When issued by the RTC or an judge thereof, the writ Section 3(c) of this Rule, the protection may be
is returnable before such court or judge; extended to the officers involved.
2. When issued by the Sandiganbayan, Court of Appeals 2. Inspection order - The court, justice or judge, upon
or any of their justices, it may be returnable to such verified motion and after due hearing, may order any
court or any justice thereof, or to any RTC where the person in possession or control of a designated land or
threat, act or omission was committed or any of its other property, to permit entry for the purpose of
elements occurred; inspecting, measuring, surveying, or photographing the
3.When issued by the Supreme Court or any of its property or any relevant object or operation thereon.
justices, it may be returnable to such Court or any 3. Production order - The court, justice or judge, upon
justice thereof, or before the Sandiganbayan or the verified motion and after due hearing, may order any
Court of Appeals or any of their justices, or to any RTC person in possession, custody or control of any
in the place where the threat, act or omission was designated documents, papers, books, accounts,
committed or any of its elements took place (Sec.3). letters, photographs, objects or tangible things, or
Note: Due to the extraordinary nature of the writ, which objects in digitized or electronic form, which constitute
protects the mother of all rights –the right to life – the or contain evidence relevant to the petition or the
petition may be filed on any day, including Saturdays, return, to produce and permit their inspection, copying
Sundays and holidays; and at any time, from morning or photographing by or on behalf of the movant.
until evening.
Interim reliefs available to the respondent: Upon
No docket fees verified motion of the respondent and after due hearing,
Ratio: The enforcement of these sacrosanct rights the court, justice or judge may issue an inspection
should not be frustrated by lack of finances. order or production order. A motion for inspection
order shall be supported by affidavits or testimonies of
Issuance of the Writ: Upon the filing of the petition, witnesses having personal knowledge of the defenses of
the court, justice or judge shall immediately order the the respondent.
issuance of the writ if on its face it ought to issue. The
writ shall be served immediately. The writ should set the Burden of proof and standard of diligence
date and time for a summary hearing of the petition required:
which shall not be later than seven (7) days from the Parties shall establish their claims by substantial
date of its issuance (Sec. 13). evidence.

Omnibus waiver rule If respondent is a private individual or entity, must


The respondent must plead all his defenses in the prove that ordinary diligence as required by applicable
return. Failure to do so shall operate as a waiver of such laws, rules and regulations was observed in the
defenses not therein pleaded (Sec. 10). performance of duty.

Prohibited pleadings and motions If a public official or employee, extraordinary


1. Motion to dismiss; diligence is required.
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings; Presumption of regularity in the performance of official
3. Dilatory motion for postponement; duty cannot be invoked which is in accord with current
4. Motion for a bill of particulars; jurisprudence on custodial interrogation and search
5. Counterclaim or cross-claim; warrant cases.
6. Third-party complaint;
There is no need to show that petitioner has exhausted A.M. No. 08-1-16-SC, January 22, 2008)
prior administrative remedies. (Effectivity: February 2, 2008)

The privilege of the Writ of Amparo should be Writ of Habeas Data


distinguished from the actual order called the Writ of A remedy available to any person whose right to
Amparo. The prvilege includes availment of the entire privacy in life, liberty or security is violated or
procedure outlined in AM No. 07-9-12-SC (De Lima v. threatened by an unlawful act or omission of a public
Gatdula, G.R. No. 204528, February 19, 2013). writ of official or employee, or of a private individual or entity
amparo shall not preclude the filing of separate criminal, engaged in the gathering, collecting or storing of data
civil or administrative actions (Sec. 21). or information regarding the person, family, home and
correspondence of the aggrieved party (Sec. 1).
Effect of filing of a criminal action: When a criminal The writ in general is designed to safeguard individual
action has been commenced, no separate petition for freedom from abuse in the information age by means of
the writ shall be filed. The reliefs under the writ shall be an individual complaint presented in a constitutional
available by motion in the criminal case. The procedure court. Specifically, it protects the image, privacy, honor,
under the Rule on the Writ of Amparo shall govern the information, self determination, and freedom of
disposition of reliefs available under the writ Sec. 22). information of a person (The Philippine Supreme Court’s
Bulletin, Benchmark Online November 2007).
Consolidation: When a criminal action is filed
subsequent to the filing of a petition for the writ, the Habeas data vis-à-vis amparo: Habeas data
latter shall be consolidated with the criminal action. essentially allows families of victims of enforced
When a criminal action and a separate civil action are disappearance to petition the courts to compel
filed subsequent to a petition for a writ of amparo, the government and security officials to allow access to
latter shall be consolidated with the criminal action. documents about the missing person. While amparo
After consolidation, the procedure under this Rule shall denies state officials the defense of denial with which
continue to apply to the disposition of the reliefs in the they normally evade petitions for habeas corpus that
petition (Sec. 23). families of missing persons file, and compels them
instead to exert efforts to find these missing persons
Doctrine of command responsibility in amparo or face sanctions (Festin, p.213).
proceedings: It would be inappropriate to apply to
these proceedings the doctrine of command Note: The writ of habeas data cannot be invoked in
responsibility, as a form of criminal complicity through labor disputes where there is no unlawful violation of the
omission, for the criminal liability is beyond the reach of right to life, liberty, or security (Meralco v. Lim, G.R. No.
amparo. 184769, October 5, 2010).
Habeas data cannot be invoked when respondents in the
It does not determine guilt nor pinpoint criminal petition for issuance of the writ are not gathering,
culpability for the disappearance, threats thereof or collecting, or storing data or information (Castillo v.
extrajudicial killings; it determines responsibility, or at Cruz, G.R. No. 182165, November 25, 2009).
least accountability, for the enforced disappearance,
threats thereof or extrajudicial killings for purposes of Who may file: Any aggrieved party may file a petition
imposing the appropriate remedies to address the for the writ of habeas data. However, in cases of
disappearance or extrajudicial killings. extralegal killings and enforced disappearances, the
If command responsibility were to be invoked and petition may be filed by:
applied to these proceedings, it should, at most, be only 1. Any member of the immediate family of the aggrieved
to determine the author who, at the first instance, is party, namely: the spouse, children and parents; or
accountable for, and has the duty to address, the 2. Any ascendant, descendant or collateral relative of
disappearance or harassments complained of, so as to the aggrieved party within the fourth civil degree of
enable the Court to devise remedial measures that may consanguinity or affinity, in default of those mentioned
be appropriate under the premises to protect rights in the preceding paragraph (Sec. 2).
covered by the writ of amparo (Rubrico, et al. v.
Macapagal-Arroyo, et al., G.R. No. 183871, February Note: Unlike in amparo, human rights organizations or
18, 2010). institutions are no longer allowed to file the petition.

Note: The writ of amparo, in its present form, is Where to file:


confined only to these two instances of “extralegal 1. Regional Trial Court where the petitioner or
killings” and enforced disappearances” (Rev. Fr. Reyes respondent resides, or that which has jurisdiction over
v. Court of Appeals, et al., G.R. No. 182161, December the place where the data or information is gathered,
3, 2009). collected or stored, at the option of the petitioner.
2. Supreme Court or the Court of Appeals or the
It is not a writ to protect concerns that are purely Sandiganbayan when the action concerns public data
property or commercial (Tapuz, et al. v. Judge Del files of government offices (Sec. 3).
Rosario, G.R. Note: The writ of habeas data shall be enforceable
No. 182484, June 17, 2008). anywhere in the Philippines.
Docket Fees: No docket and other lawful fees shall be
RULE ON WRIT OF HABEAS DATA required from an indigent petitioner (Sec. 5).
Note: A petition for a writ of habeas data must be reliefs as may be just and equitable otherwise, the
verified. privilege of the writ shall be denied.
Upon its finality, judgment enforced within five (5)
Contents of the petition (P-MALRO) working days.
1. Personal circumstances of the petitioner and
respondent; Grant of the writ vs. Grant of the privilege of the
2. The manner the right of privacy is violated or writ:
threatened; The grant of the writ refers to the decision of the court
3.Actions and recourses taken by petitioner to secure to give due course to the petition, require respondents
the to file their return and set the petition for hearing. The
date or information; grant of the privilege of the writ means that the
4. Location of the files, registers or database, the petition is found meritorious, the prayers therein are
government office, person in charge, in possession and granted and the petitioner is granted the relief sought.
control of the data, if known;
5.Reliefs prayed for; and RULE 108
6.Other relevant reliefs as are just & equitable (Sec. 6).
CANCELATION OR CORRECTION
Defenses available to respondent OF ENTRIES IN THE CIVIL
1. National security; REGISTRY
2. State secrets;
3. Privileged communications;
4. Confidentiality of the source of information of media Procedure for cancellation or
and others (Sec. 12). correction of entries
Note: Hearing in chambers may be conducted where
the respondent invokes the abovementioned defenses under Rule 108
(Sec.
12). Petition for Cancellation or Correction of any
Prohibited pleadings and motions entry relating to an act, event order or decree
1. Motion to dismiss; concerning the civil status
2. Motion for extension of time to file return, opposition, Court order fixing the date and place for Hearing
affidavit, position paper and other pleadings; Publication of the court order at least once a week for
3. Dilatory motion for postponement; 3 successive weeks in a newspaper of general
4. Motion for a bill of particulars; circulation, with reasonable notice given to persons
5. Counterclaim or cross-claim; named in the petition
6. Third-party complaint; Filing of opposition by the civil registrar and any
7. Reply; person
8. Motion to declare respondent in default; having/claiming interest under the entry whose
9. Intervention; cancellation/correction is sought, within 15 days from
10.Memorandum; notice of the petition or from the last date of
11.Motion for reconsideration of interlocutory orders or publication
interim relief orders; and of the notice
12.Petition for certiorari, mandamus or prohibition Hearing on the petition
against Judgment granting/denying the petition. Copy of
any interlocutory order. (Sec. 13) the judgment shall be served upon the civil
registrar, who shall annotate the same
Hearing
Summary but the judge may call a preliminary WHO MAY FILE PETITION
conference to simplify the issues and determine the Any person interested in any act, event, order or decree
possibility of obtaining stipulations and admissions from concerning the civil status of persons recorded in the
the parties. civil registry.
Where filed: RTC of the province where the
When a court may hear the petition in chambers corresponding civil registrar is located.
Where the respondent invokes the defense that: Proceedings under Rule 108 may be summary or
1. The release of the data or information in question adversarial:
shall compromise national security or state secrets; or 1. Summary – when the correction sought to be made
2. The data or information cannot be divulged to the is a mere clerical error (now governed by R.A. No.
public due to its nature or privileged character. 9048).
2. Adversarial - where the rectification affects civil
Judgment: Court to render judgment within ten (10) status, citizenship or nationality of a party or any other
days from the time the petition is submitted for decision. substantial change.
If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act Requisites of adversarial proceedings
complained of, or order the deletion, destruction, or 1. Petition is filed before the court having jurisdiction
rectification of the erroneous data or information and over the impleaded civil registrar and all interested
grant other relevant parties;
(Sec.3)
2. The order of the hearing must be published once a something alterable through surgery or something that
week for three consecutive weeks; allows a post-operative male-to-female transsexual to
3. Notice thereof must be given to the Civil Registrar be included in the category of “female” (Silverio v.
and all parties affected thereby; Republic of the Philippines, G.R. No. 174689, October
4. The civil registrar and any person having or claiming 22, 2007).
any interest under the entry whose cancellation or
correction is sought may, within 15 days from notice of Congenital Adrenal Hyperplasia (CAH)
the petition or from the last date of publication of such This condition causes the early or “inappropriate”
notice, file his opposition thereto; appearance of male characteristics. x x x. CAH is one of
5. Full blown trial. many conditions that involves intersex anatomy. During
the twentieth century, medicine adopted the term
Proceedings for the correction of entries should not be “intersexuality” to apply to human beings who cannot
considered as establishing one’s status in a manner be classified as either male or female. The term is now
conclusively beyond dispute. The status corrected would of widespread use. According to Wikipedia,
not have a superior quality for evidentiary purposes. intersexuality “is the state of a living thing of a
There is no increase or diminution of substantive right gonochoristic species whose sex chromosomes,
(Chiao Ben Lim v. Zosa, G.R. No. L- 40252, December genitalia, and/or secondary sex characteristics are
29, 1986). determined to be neither exclusively male nor female.
An organism with intersex may have biological
SECTION 2. ENTRIES SUBJECT TO CANCELLATION characteristics of both male and female sexes” (Republic
OR CORRECTION of the Philippines v. Jennifer Cagandahan, G.R.
(BMD LAVLAA- NEC JVC) No. 166676, September 12, 2008).
1.Births;
2.Marriages; Principles laid down by the SC in Republic of the
3.Deaths; Philippines v. Cagandahan:
4. Legal separations; 1. Where the person is biologically or naturally intersex,
5. Judgments of annulments of marriage; the determining factor in his gender classification would
6. Judgments declaring marriages void from the be what the individual, having reached the age of
beginning; majority, with good reason thinks of his/her sex; sexual
7. Legitimations; development in cases of intersex persons makes the
8.Adoptions; gender classification at birth inconclusive – it is at
9.Acknowledgments of natural children; maturity that the gender of such persons is fixed.
10.Naturalization; 2. To the person with CAH belongs the human right to
11.Election, loss or recovery of citizenship; the pursuit of happiness and of health, and to him
12.Civil interdiction; should belong the primordial choice of what courses of
13.Judicial determination of filiation; action to take along the path of his sexual development
14.Voluntary emancipation of a minor; and maturation.
15.Change of name. 3. There is merit in the change of name of a person with
Even substantial errors in a civil registry may be CAH where the same is the consequence of the
corrected and the true facts established provided the recognition of his preferred gender.
parties aggrieved by the error avail themselves of the
appropriate adversary proceedings (Republic of the PARTIES
Philippines v. Valencia, G.R. No. L-32181, March 5, 1. Civil registrar;
1986). 2. All persons who have or claim any interest which
would be affected thereby.
Adversarial proceeding
One that has opposing parties; contested as NOTICE AND PUBLICATION
distinguished from an ex parte application, one of which Order of hearing shall be published once a week for 3
the party seeking relief has given legal warning to the consecutive weeks in a newspaper of general circulation
other party, and afforded the latter an opportunity to in the province and all persons named in the petition
contest it (Republic v. Valencia, supra). shall be notified.

Rule 108, when all the procedural requirements OPPOSITION


thereunder are followed, is the appropriate adversary The following are entitled to oppose the petition:
proceeding to effect substantial correction and changes 1. The Civil Registrar; and
in entries of the civil register (Lee v. Court of Appeals, 2.Any person having or claiming any interest under the
G.R. No. L-118387, Oct. 11, 2001). entry whose cancellation or correction is sought.

Whether a petition under Rule 108 can be granted EXPEDITING PROCEEDINGS


by reason of “sex change” or “sec reassignment”: The court may also grant preliminary injunction for the
No. Since the statutory language of the Civil Register preservation of the rights of the parties pending such
Law was enacted in the early 1900s and remains proceedings.
unchanged, it cannot be argued that the terms “sex” as
used then is