Professional Documents
Culture Documents
Special Proceeding (Memory Aid)
Special Proceeding (Memory Aid)
LAW SPECIAL PROCEEDINGS
Special wrong.
Ordinary Action
Proceeding Governed by
Generally no Ordinary rules special rules
Governed by the
definite adverse apply primarily and ordinary
Generally rules for ordinary
party because it is but subject to rules apply as
adversarial in civil actions.
directed against specific rules. far as
nature. There are
Nature the whole world, practicable.
definite parties –
as majority of Involves two or Involves two or May involve only
plaintiff vs.
special more parties. more parties. one party.
defendant.
proceedings are in Some are
rem. initiated by
To protect or Initiated by complaint while Initiated by
To establish a
enforce a right or complaint. some are petition.
Purpose right, status or
prevent or initiated by
fact.
redress a wrong. petition.
It is governed by It is governed by Some special Not based on a
Governing ordinary rules special rules Based on a civil actions have cause of action
Rules supplemented by supplemented by cause of action. no cause of (except Habeas
special rules. ordinary rules. action. Corpus).
It is heard by It is heard by
Court with
courts of general courts of limited Summary of venues and jurisdiction for different
Jurisdiction
jurisdiction. jurisdiction. Special Proceedings
Initiated by means Venue Jurisdiction
Initiated by a
of a petition and Estate settlement (Rules 73-90)
pleading and
parties respond by Province of decedent’s MTC – If estate’s gross
parties respond
means of an residence at the time of value does not exceed
How initiated through an
opposition after death PhP300K (PhP400K in
answer after
notice and Metro Manila)
being served with
publication are If non-resident decedent – RTC – If estate’s gross
summons.
made. Province where he had value exceed MTC’s
Parties are estate jurisdiction
generally allowed Escheat (Rule 91)
to file an answer, Law on pleadings If decedent dies intestate
Applicability
counterclaim, generally not and without heirs – Province
of pleadings
cross-claim and applicable. where decedent last resided
third-party or where estate is
complaint. If reversion – Province where
The period to land lies wholly/partially
The period to appeal is 30 days Guardianship (Rule 92)
appeal is only 15 and aside from a Where ward resides or Family Court – If minor
Appeal
days and notice notice of appeal, a where his property is located ward
of appeal suffices. record on appeal (if non-resident) RTC – If other than minor
is required. ward
Trusteeship (Rule 98)
Ordinary Civil Special Civil Special Where the will was allowed RTC
Action Action Proceeding or where the property
One by which a affected by the trust is
party sues Remedy by located
another for the which a party Adoption (AM No. 02-6-02, RA 8043)
Civil action
enforcement or seeks to If domestic – where adopter Family Court
subject to
protection of a establish a resides
specific rules.
right or the status, a right or If inter-country – where Family Court or Inter-
prevention or a particular fact. adoptee resides (if filed with Country Adoption Board
redress of a
Court order fixing the time and place for probate. Venue
1. Inhabitant (Resident) of the Philippines (whether citizen
or alien) – Court of the province/city where he resides at
Publication of hearing for 3 successive weeks. Notice the time of death.
shall also be given to the designated/known heirs, 2. Inhabitant (Resident) of Foreign Country – Court of any
legatees and devisees, and the executor if the one province wherein he had his estate (Sec. 1, Rule 73).
petitioning for allowance of the will is not the testator.
Residence
Residence means his personal, actual or physical
Issuance of Letters habitation, his actual residence or place of abode (Fule v.
Testamentary/Administration (A special Court of Appeals, G.R. No. L-40502, November 29, 1976).
administrator may be appointed) (Rules 77-80)
Where the proceeding was commenced with a court of
improper venue, as where the decedent was neither a
Publication of Notice for Filing Claims resident at the time of his death nor had estate therein,
and such objection was seasonably raised in the probate
court, the petition should be dismissed and the
Filing of Claims (Rule 86) proceedings should be instituted in the proper court
(Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December
28, 1956).
Issuance of Order of Payment or Sale of
Properties Remedy if venue is improperly laid
General Rule: Ordinary appeal not certiorari or
prohibition.
Payment of Claims:
Sale/Mortgage/Encumbrance of estate Exception: If want of jurisdiction appears on the record of
properties. the case (Sec. 1, Rule 73).
Extent of jurisdiction: Probate courts are courts of The probate court acquires jurisdiction from the moment
limited jurisdiction. it may only determine and rule upon the petition for the settlement of estate is filed with said
issues relating to the settlement of the estate, namely: court. It cannot be divested of such jurisdiction by the
(LAD) subsequent acts of the parties as by entering into
1. Liquidation of the estate; extrajudicial partition of the estate (Sandoval v. Santiago,
2. Administration of the estate; and G.R. No. L-1723, May 30, 1949); or by filing another
3. Distribution of the estate (Herrera, Special Proceedings petition for settlement in a proper court of concurrent
and Special Rules Implementing the Family Courts Act venue (Rodriguez v. De Borja, G.R. No. L-21993, June
of 1997, 2005 ed., p. 12). 21, 1966).
General Rule: Probate court cannot determine issue of Exception: Estoppel by Laches
ownership.
Note: Jurisdiction under Rule 73 Sec. 1 does not relate to
Exceptions: jurisdiction per se but to venue. Hence, institution in a
1. Ownership may be provisionally determined for the court where the decedent is neither an inhabitant nor had
purpose of including property in inventory, without his estate may be the subject of waiver (Uriarte v. CFI,
prejudice to its final determination in a separate action G.R. No. L-21938-39, May 29, 1970).
(Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,
May 7,1987); SECTION 2. WHERE THE ESTATE SETTLED UPON
2. When all the parties are heirs and they submit the issue DISSOLUTION OF MARRIAGE
of ownership to the probate court provided that the Upon the death of either the husband or the wife, the
rights of third parties are not prejudiced (Bernardo v. partnership affairs must be liquidated in the testate or
Court of Appeals, G.R. No. L-18148, Feb. 28, 1963); intestate proceedings of the deceased husband or wife. If
3. Question is one of collation or advancement (Coca, et both have died, liquidation may be made in the testate or
al., v. Pangilinan et al., G.R. No. L-27082, Jan. 31, intestate proceedings of either (Bernardo, et. al. v. Court
1978). of Appeals, et. al., G.R. No, L-18148, February 28, 1963).
Requisites:
R ULE 74 A. Substantive
S UMMARY S ETTLEMENT OF 1. The decedent left -
E STATES a. No will;
b. No debts.
2. The heirs are all of age or the minors are
General Rule: The settlement of the estate of the represented by their judicial or legal representatives
decedent should be judicially administered through an duly authorized for the purpose.
administrator or executor. B. Procedural
1. Division of estate must be in a public instrument or
Exception: by affidavit of self-adjudication in the case of a sole
The heirs may resort to: heir;
1. Extrajudicial settlement of estate (Sec.1); 2. Filed with proper Registry of Deeds;
2. Summary settlement of estates of small value (Sec. 2). 3. Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks;
Note: In both exceptional circumstances, an administrator 4. Filing of the bond with the Register of Deeds
or executor need not be appointed. equivalent to the value of personal property. (Sec.
1, Rule 74).
substituted by a bond (Rebong v. Ibañez, G.R. No. L- settlement is entered into (Guico v. Bautista, G.R. No. L-
1578, September 30, 1947). 14921, December 31, 1960).
The bond is the value of the personal property certified by Disputable presumption that decedent left no debts: If
the parties under oath and conditioned upon payment of no creditor files a petition for letters of administration
just claims filed under Sec. 4, Rule 74. within 2 years after the death of the decedent it is
presumed that the estate left no debts (Sec. 1, Rule 74).
Affidavit of Self Adjudication
An affidavit required by Sec 1 of Rule 74 to be executed Note: Section 1, Rule 74 does not preclude the heirs from
by the sole heir of a deceased person in adjudicating to instituting administration proceedings even if the estate
himself the entire estate left by the decedent. has no debts or obligations, if they do not desire to resort,
for good reasons, to an ordinary action for partition
Is a public instrument necessary for the validity of an (Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952).
extra-judicial settlement? No. A private
instrument/document or oral agreement of partition as well “Good reason” depends on the circumstances of each
as a compromise agreement entered without previous case (Pereira v. CA, et al., G.R. No. 81147, June 20,
authority of the court is valid among the heirs who 1989).
participated in the extrajudicial settlement. The
requirement under Sec. 1, Rule 74 that it must be in a SECTION 2. SUMMARY SETTLEMENT OF ESTATES
public instrument is not constitutive of the validity but is OF SMALL VALUE
merely evidentiary in nature (Hernandez v. Andal, G.R. The gross value of the estate must not exceed
No. L-273, March 29, 1947). Under the new Rules, it PhP10,000.
would appear that a public instrument is now required for
registration. If the settlement is in a private instrument, it is In accordance with B.P. Blg. 129, the summary settlement
believed that the same is still valid and reformation of the of estates of small value is within the jurisdiction of the
instrument may be compelled (Arts. 1359, et. seq., New MTCs.
Civil Code).
Important Requirements:
Summary 1. Application must contain allegation of gross value of
Extrajudicial Settlement
Settlement estate;
Requires summary judicial 2. Date for hearing:
No court intervention. a. Shall be set by court not less than 1 month nor more
adjudication.
Value of the estate is Gross estate must not than 3 months from date of last publication of notice;
immaterial. exceed PhP10,000. b. Order of hearing published, once a week for 3
Allowed only in intestate Allowed in both testate and consecutive weeks in a newspaper of general
succession. intestate circulation.
3. Notice shall be served upon such interested persons as
There must be no It is available even if there
the court may direct;
outstanding debts of the are debts; it is the court
4. Bond in an amount fixed by the court (not value of
estate at the time of which will make provision
personal property) conditioned upon payment of just
settlement. for its payment.
claims under Sec. 4.
May be instituted by any
Resorted at the instance
interested party even by a Procedure in summary settlement of estates of small
and by agreement of all
credit of the estate without value
heirs.
the consent of all heirs.
Application for summary settlement with an
Amount of bond is equal to
Amount of bond is to be allegation that the gross value of the estate
the value of personal
determined by the court. does not exceed PhP10,000.00
property.
Bond is filed with the
Bond is filed with the court.
Register of Deeds.
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks in a
Note: While the Rules provide that the decedent must not
newspaper of general circulation (the court may also
have left any debts, it is sufficient if any debts he may
order notice to be given to other persons as such
have left have been paid at the time the extrajudicial
court may direct)
Is a person who had no knowledge or had not Where the estate has been summarily settled, the unpaid
participated in the extrajudicial settlement bound creditor may, within 2 years, file a motion in court
thereby by reason of constructive notice of wherein such summary settlement was had, for the
publication? No. Extrajudicial settlement under Sec. 1 of payment of his credit.
Rule 74 is an ex parte proceeding, and the rule plainly
states that persons who do not participate or had no
notice of an extrajudicial settlement will not be bound
After the lapse of 2 years, an ordinary action may be 4. The doctrine of estoppel does not apply.
instituted against the distributees within the statute of The presentation and probate of the will is required by
limitations but not against the bond. public policy. It involves public interest (Fernandez v.
Dimagiba, G.R. No. L-23638, October 12, 1967).
The 2-year lien upon the real property distributed by
extrajudicial or summary settlement shall be annotated on SECTION 2. CUSTODIAN OF WILL TO DELIVER
the title issued to the distributees and after 2 years will be The custodian must deliver the will to the court or to the
cancelled by the register of deeds without need of court executor within 20 days after he learns of the death of the
order (Land Registration Commission Circular 143 dated testator.
January 28, 1964).
SECTION 3. EXECUTOR TO PRESENT WILL AND
Such lien cannot be discharged nor the annotation be ACCEPT OR REFUSE TRUST
cancelled within the 2 year period even if the distributees The executor, within 20 days after he knows of the
offer to post a bond to answer for contingent claims from testator’s death or after he knows that he is named an
which lien is established (Rebong v. Ibañez, G.R. No. L- executor if he knows it after the testator’s death, shall:
1578, September 30, 1947). 1. Present the will to the court (unless it has reached the
court in any other manner); and
SECTION 5. PERIOD FOR CLAIM OF MINOR OR 2. Signify in writing his acceptance or refusal of the trust.
INCAPACITATED PERSON
If on the date of the expiration of the two-year period, the SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT
creditor or heir is: TO FINE FOR NEGLECT
1. A minor; or A fine not exceeding PhP2,000.
2. Incapacitated; or
3. In prison; or SECTION 5. PERSON RETAINING WILL MAY BE
4. Outside the Philippines. COMMITTED
He may present his claim within one year after such Probate
disability is removed (Sec. 5 Rule 75). The act of proving in a court a document purporting to be
the last will and testament of a deceased person in order
that it may be officially recognized, registered and its
R ULE 75 provisions carried out insofar as they are in accordance
P RODUCTION OF W ILL with the law (also referred to as allowance of the will)
A LLOWANCE OF W ILL N ECESSARY (Jurado, Comments and Jurisprudence on Succession,
2009, 9th Edition, p. 134).
Who may be a party in probate? In general, any person Meaning of due execution (FM-VPS)
having a direct and material interest in the will or estate 1. That the will was executed strictly in accordance with
(Trillana v. Crisostomo, G.R. No. L-3378, August 22, the formalities required by law;
1951). 2. That the testator was of sound and disposing mind
when he executed the will;
SECTION 2. CONTENTS OF PETITION 3. That there was no vitiation of consent through duress,
1. The jurisdictional facts – death of the testator and his fear or threats;
residence at the time of death or the province where 4. That it was not procured by undue or improper pressure
estate was left by the decedent who is a non-resident; or influence on the part of the beneficiary, or some
2. The names, ages, and residences of the heirs, other person for his benefit;
legatees, and devisees of the testator or decedent; 5. That the signature of the testator is genuine, i.e., it was
3. The probable value and character of the property of the not procured through fraud and that the testator
estate; intended that what he executed was his last will and
4. The name of the person for whom letters are prayed; testament (Art. 839, New Civil Code).
and
5. The name of the person having custody of the will if it SECTION 3. COURT TO APPOINT TIME FOR PROVING
has not been delivered to the court. WILL; NOTICE THEREOF TO BE PUBLISHED
The probate of a will is a proceeding in rem and the
But no defect in the petition shall render void the publication provided for by this Rule is a jurisdictional
allowance of the will, or the issuance of letters requirement. The personal service of notice upon the heirs
testamentary or of administration with the will annexed. is a matter of procedural convenience and not a
jurisdictional requisite. (Regalado, p. 31)
Effect of the probate of a will: It is conclusive as to the
execution and validity of the will (even against the State). If the petition for probate is on the testator’s own initiative
Thus, a criminal case against the forger may not lie after during his lifetime (Ante Mortem):
the will has been probated (Jurado, p. 144). 1. No publication is necessary (Sec. 3); and
2. Notice shall be made only to the compulsory heirs (Sec.
May Sec. 1, Rule 76 be waived since it is just a 4).
procedural requirement? No because the same
requirement is embodied in Art. 838 of the Civil Code, Note: Three (3) weeks successively is not strictly 21 days.
which is a substantive law. It is sufficient that publication has been made once a
week successively three times, even if less than twenty-
Issue in the probate of a will one days intervened between the first and last publication
General Rule: Only determination of the extrinsic validity (Basa v. Mercado, G.R. No. L-42226, July 26, 1935).
not the intrinsic validity or validity of testamentary
dispositions. SECTION 4. HEIRS, DEVISEES, LEGATEES, AND
EXECUTORS TO BE NOTIFIED BY MAIL OR
Exceptions: PERSONALLY
Principle of practical considerations
1. The waste of time, effort, expense plus added anxiety Persons to be Given Notice:
are the practical considerations that induced the SC to 1. Designated or known heirs, legatees and devisees; and
a belief that we might as well meet head-on the issues 2. Executor and co-executor if not the petitioner.
of the validity of the provisions of the will in question
(Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). Modes of Notification
2. Where the entire or all testamentary dispositions are 1. If by mail: 20 days before hearing
void and where the defect is apparent on its face (Acain 2. If through personal service: 10 days before hearing.
v. Intermediate Appellate Court, G.R. No. 72706,
October 27, 1987; Nepumuceno v. Court of Appeals, SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT
G.R. No. L-62952, October 9, 1985). IN ABSENCE OF CONTEST
At the hearing, compliance of publication and notice must
Extrinsic Validity first be shown before introduction of testimony in support
Means due execution of the will. of the will.
Evidence required in support of a will will is contested, 3 witnesses who know the
1. Uncontested Will handwriting and signature of the testator are now
a. Notarial Wills: Testimony of at least one of the required/mandatory to prove its authenticity and for
subscribing witnesses may be allowed, if such its allowance.
witness testifies that the will was executed as is
required by law (Sec.5). General Rule: A holographic will if destroyed cannot be
i. If all subscribing witnesses reside outside the probated.
province – deposition is allowed (Sec.7).
ii. If the subscribing witnesses are dead, insane, or Exception: If there exists a Photostatic or Xerox copy
none of them resides in the Philippines – The thereof (Gan v. Yap, G.R. No. L-12190, August 30, 1958).
court may admit testimony of other witnesses to
prove the sanity of the testator, and the due Note: In the case of a contested notarial will, it is the duty
execution of the will, and as evidence of the of the petitioner to produce all the available attesting
execution of the will, it may admit proof of the witnesses and the notary public, but he is not concluded
handwriting of the testator and of the subscribing by the testimony of said witnesses, even if adverse, as the
witnesses or of any of them (Sec. 8). court may still admit the will to probate on the basis of
other satisfactory evidence (Fernandez v. Tantoco, G.R.
b. Holographic Wills: the testimony of one witness who No. 25489, September 8, 1926). This is an exception to
knows the handwriting and signature of the testator. the rule that a party is generally bound by the testimony or
In the absence thereof and if the court deem it evidence that he presents, because here, unlike ordinary
necessary, expert testimony may be resorted to. actions, he has no choice in the evidence as he is duty-
bound to account for all attesting witnesses. It has been
In case of a holographic will, it is not mandatory that held that the testimony of the notary before whom the will
witnesses be first presented before expert testimony was acknowledged will prevail over that of the two
may be resorted to, unlike notarial wills wherein the attesting witnesses who claim undue execution of the will
attesting witnesses must first be presented or (Ramos, et. al. v. Court of Appeals, et. al. G.R. No. L-
accounted for (Azaola v. Singson, G.R. No. L-14003, 40804, January 31, 1978).
August 5, 1960). This is so because holographic wills
are not required to be witnessed and the existence of SECTION 6. PROOF OF LOST OR DESTROYED WILL.
a qualified witness may be beyond the control or CERTIFICATE THEREUPON
knowledge of the proponent of the will (Regalado, p. This section applies to a lost or destroyed notarial will and
35). not to a holographic will.
2. If the testator was insane, or otherwise mentally handwriting shall be sufficient evidence of the
incapable to make a will, at the time of its execution; genuineness and due execution thereof.
3. If it was executed under duress, or the influence of fear,
or threats; In case of contest, the burden of proof is on the
4. If it was procured by undue and improper pressure and contestant.
influence, on the part of the beneficiary, or of some
other person for his benefit; SECTION 13. CERTIFICATE OF ALLOWANCE
5. If the signature of the testator was procured by fraud or ATTACHED TO PROVED WILL. TO BE RECORDED IN
trick, and he did not intend that the instrument should THE OFFICE OF REGISTER OF DEEDS.
be his will at the time of fixing his signature thereto. Order for probate is final. Thus, it is appealable.
5. The legal requirements in said foreign country for the 3. Administrator with a will annexed – the one
valid execution of the will (De Perez v. Tolete, supra). appointed by the court in cases when, although there is
a will, the will does not appoint any executor, or if
Effects of the allowance of a will under Rule 77: appointed, said person is either incapacitated or
1. The will shall be treated as if originally proved and unwilling to serve as such (Rule 79, Section 1).
allowed in Philippine courts;
2. Letters testamentary or administration with a will Who may serve as an executor or administrator? Any
annexed shall extend to all estates in the Philippines; competent person may serve as executor or administrator.
3. After payment of just debts and expenses of
administration, the residue of the estate shall be SECTION 1. WHO ARE INCOMPETENT TO SERVE AS
disposed of as provided by law in cases of estates in EXECUTORS OR ADMINISTRATORS
the Philippines belonging to persons who are 1. A minor;
inhabitants of another state or country. 2. A non-resident;
3. One who in the opinion of the court is unfit to exercise
Note: In the absence of proof of the foreign law, it is the duties of the trust by reason of:
presumed that it is the same as that in the Philippines a. Drunkenness – when the habits of drink are carried
(Doctrine of Processual Presumption). so far as to cloud the brain and weaken their respect
for honesty and integrity; The drunkenness
The venue for the petition for re-probate is the same as contemplated by this statute, undoubtedly, is that
that provided for in Rule 73. excessive, inveterate and continued use of
intoxicants, to such an extent as to render the subject
A will of a foreigner executed abroad can be probated in of the habit as unsafe against to entrust with the care
the Philippines without need of being probated abroad. of property or the transaction of business (Herrera, p.
Art. 816 of the Civil Code states that the will of an alien 78).
who is abroad produces effect in the Philippines if made in b. Improvidence – means the want of care and
accordance with the formalities prescribed by the law of foresight in the management of property which would
the place where he resides, or according to the formalities be likely to render the estate and effects of the
observed in his country. Reprobate of a will already intestate unsafe and liable to be lost or diminished in
probated and allowed in a foreign country is different from value (Black’s Law Dictionary, 5th ed., p.682).
that probate where the will is presented for the first time c. Want of understanding – amounts to lack of
before a competent court. Reprobate is specifically intelligence such as would or might subject one to
governed by Rule 77. In reprobate, the local court sinister influence or coercion against the general
acknowledges as binding the findings of the foreign interest of the estate (Herrera, p.80).
probate court provided its jurisdiction over the matter can d. Want of integrity – integrity is synonymous to
be established. If the instituted heirs do not have the probity, honesty and uprightness in business relations
means to go abroad for the probate of the will, it is as with others. The accusation should be certain and
good as depriving them outright of their inheritance (In Re: grave in its nature (Herrera, p.80).
Palaganas, G.R. No. 169114, 26 January 2011). e. Conviction for an offense involving moral
turpitude – an act of baseness, vileness or depravity
in the private and social duties which a man owes his
R ULE 78 fellow men, to society in general, contrary to the
L ETTERS T ESTAMENTARY AND OF accepted and customary rule of right and duty
A DMINISTRATION , WHEN AND TO between man and woman or conduct contrary to
justice, honesty, modesty or good morals (Zari v.
WHOM I SSUED
Flores, A.M. No. (2170-MC) P-1356 November 21,
1979).
Who can administer the estate? 4. The executor of an executor cannot administer the
1. Executor – the one named by the testator in his will for estate of the first testator (Sec. 2).
the administration of his property after his death.
2. Administrator, regular or special – the one appointed Executor and Administrator; Distinguished
by the Court in accordance with the Rules or governing Executor Administrator
statutes to administer and settle the intestate estate Appointed by the court in
(Rule 80). Nominated by the testator
case the testator did not
and appointed by court.
appoint an executor or if
Executor Administrator named in the will refused to accept the office or if the
the executor refused person name is incompetent.
appointment (administrator
with a will annexed) or if the SECTION 5. WHERE SOME CO-EXECUTORS
will was disallowed or if a DISQUALIFIED, OTHERS MAY ACT
person did not make a will
(intestate succession). SECTION 6. WHEN AND TO WHOM LETTERS OF
Must present will to the ADMINISTRATION GRANTED
court within 20 days after
he knows of the death of Order of preference in granting letters of
testator or after he knew administration
that he was appointed as 1. The surviving husband or wife or the next of kin, or both
executor (if he obtained No such duty. in the discretion of the court, or to such person as such
such knowledge after death surviving spouse or next of kin, requests to have
of testator), unless the will appointed, if competent and willing to serve (surviving
has reached the court in spouse or next of kin or their nominee);
any manner.
Testator may provide that Next of Kin
he may serve without a Those persons who are entitled by law to receive the
bond (but court may direct Required unless exempted decedent’s property (Regalado, p. 46).
him to give a bond by law
conditioned only to pay 2. If the surviving spouse or the next of kin or the person
debts). selected by them be incompetent or unwilling to serve,
or if the surviving spouse or next of kin neglects for 30
Compensation may be days after the death of the decedent to apply for
provided for by the testator Compensation is governed administration by them or their nominee, any one or
in the will, otherwise Sec. 7, by Sec. 7, Rule 85. more of the principal creditors, if competent and willing
Rule 85 will be followed. to serve;
SECTION 2. EXECUTOR OF EXECUTOR NOT TO However, neglect of such persons to apply for letters
ADMINISTER ESTATE administration for 30 days after death is not sufficient to
exclude the widow from the administration of the estate
SECTION 3. MARRIED WOMEN MAY SERVE of her husband. There must be a very strong case to
justify the exclusion of the widow from the
SECTION 4. LETTERS TESTAMENTARY ISSUED administration (Herrera, p. 84).
WHEN WILL ALLOWED
3. If there is no such creditor competent and willing to
Testamentary Privilege serve, it may be granted to such other person as the
The right given by law to a person to dispose of his court may select (stranger).
property when he dies.
Note: As a general rule, the court cannot set aside the
Letters Testamentary order of preference under Sec. 6 Rule 78.
An authority issued to an executor named in the will to
administer the estate (Festin, p. 46). Exception: In case the persons who have the preferential
right to be appointed under the rule are not competent or
Letters of Administration are unwilling to serve, administration or they neglect to
An authority issued by the court to a competent person to apply for letters of administration for 30 days after the
administer the estate of the deceased who died intestate decedent’s death, the letters may be granted to such
(Festin, p. 46). other person as the court may appoint.
Letters of Administration with a Will Annexed The order of appointment of regular administrator is final
An authority issued by the court to a competent person to and appealable.
administer the estate of the deceased if the executor
Basis for the preferential right: The underlying The opposition may be accompanied by a Petition for the
assumption is that those who will reap the benefits of a issuance of Letters of Administration with the will
wise, speedy and economical administration of the estate annexed.
or on the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the higher interest SECTION 2. CONTENTS OF A PETITION FOR
and most influential motive to administer the estate LETTERS OF ADMINISTRATION
correctly (Gonzales v. Aguinaldo, G.R. No. 74769 1. The jurisdictional facts;
September 28, 1990). 2. The names, ages, residences of heirs and the names
and ages of the creditors;
Note: Co-administrators may be appointed for the benefit 3. The probable value and character of the estate; and
of the estate and those interested therein (Matute v. Court 4. The name of the person for whom letters are prayed for.
of Appeals, G.R. No. 26751, January 31, 1969).
No defect in the petition shall render void the issuance of
Scope or limits of administration: The general rule is the letters of administration.
that administration extends only to the assets of a
decedent found within the state or country where it was SECTION 3. COURT TO SET TIME FOR HEARING.
granted, so that an administrator appointed in one state or NOTICE THEREOF
country has no power over the property in another state or Publication for 3 weeks and notice to heirs, creditors and
country (Leon v. Manufacturers Life Insurance Co., G.R. other persons believed to have an interest in the estate is
No. L-3677, November 29, 1951). required before hearing.
Note: A party indebted to the decedent’s estate cannot Note: Sec. 3 of this Rule is jurisdictional. Where no notice
compatibly perform the duties of an administrator and as required by this section has been given to persons
should not be appointed as such (Lim v. Diaz-Millarez, believed to have an interest in the estate of the deceased
G.R. No. L-17633, October 19, 1966). Where such fact of person, the proceeding for the settlement of the estate is
indebtedness was only subsequently discovered after the void and should be annulled (Eusebio v. Valmores, G.R.
administrator had been duly appointed, he should not be No. L-7019, May 31, 1955).
removed, absent any other lawful ground (Dalisay, etc. v.
Consolacion, etc., G.R. No. L-44702, July 30, 1979). SECTION 4. OPPOSITION TO PETITION FOR
ADMINISTRATION
Note: A special administrator is appointed only for a SECTION 2. BOND OF EXECUTOR WHERE DIRECTED
limited time and for a specific purpose. Naturally, because IN WILL WHEN FURTHER BOND REQUIRED
of the temporary and special character of his appointment, Even if the testator has directed in his will that his
it was deemed by the law not advisable for any party to executor serve without a bond, the court may still require
appeal from said temporary appointment (De Borja v. Tan, him to file a bond conditioned only to pay the debts of the
supra). testator.
While a special administrator may commence and SECTION 3. BONDS OF JOINT EXECUTORS AND
maintain suits under Sec. 2, he cannot be sued by a ADMINISTRATORS
creditor for the payment of the debts of the deceased (De
Gala v. Gonzales, et al., G.R. No. L-30289, March 26, SECTION 4. BOND OF SPECIAL ADMINISTRATOR
1929). Such suit must await the appointment of a regular
administrator. Conditions of the bonds
1. Make and return a true inventory;
2. Render accounting when required by court; and
R ULE 81 3. Deliver the estate to the person appointed executor or
B ONDS OF E XECUTORS AND administrator or other authorized persons.
A DMINISTRATORS
As long as the probate court retains jurisdiction of the
estate, the bond contemplates a continuing liability (Luzon
SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE Surety v. Quebrar, Gr No. L-40517, January 31, 1984).
OF LETTERS. AMOUNT. CONDITIONS.
deprive the probate court of jurisdiction to approve it. during distribution (Wagner v. Moore, G.R. No. L-25842,
However, an administrator’s unexplained delay in filing the March 18, 1927).
inventory may be a ground for his removal (Sebial v.
Sebial, G.R. No. L-23419, June 27, 1975).
R ULE 84
Approval of an inventory is not a conclusive determination G ENERAL P OWERS AND D UTIES OF
of what assets constituted the decedent’s estate and of E XECUTORS AND A DMINISTRATORS
the valuation thereof. Such determination is only
provisional and a prima facie finding of the issue of
ownership. SECTION 1. EXECUTOR OR ADMINISTRATOR TO
HAVE ACCESS TO PARTNERSHIP BOOKS AND
Property claimed by third persons may be included in the PROPERTY. HOW RIGHT ENFORCED
inventory as part of the assets of the estate and the
probate court may order such inclusion, but such order of SECTION 2. EXECUTOR OR ADMINISTRATOR TO
the probate court is only a prima facie determination and KEEP BUILDINGS IN REPAIR
does not preclude the claimants from maintaining an
ordinary civil action for the determination of title (Gonzales SECTION 3. EXECUTOR OR ADMINISTRATOR TO
v. CFI Manila, G.R. No. L-34395, May 19, 1981). RETAIN WHOLE ESTATE TO PAY DEBTS AND TO
ADMINISTER ESTATE NOT WILLED
SECTION 2. CERTAIN ARTICLES NOT TO BE
INVENTORIED Powers of the executor or administrator of the estate
1. Wearing apparel of the surviving spouse and minor (BERIP)
children; 1. To have access to, and examine and take copies of
2. Marriage bed and bedding; books and papers relating to the partnership in case of
3. Provisions and other articles as will necessarily be a deceased partner;
consumed in the subsistence of the family of the 2. To examine and make invoices of the property
deceased. belonging to the partnership in case of a deceased
partner;
SECTION 3. ALLOWANCE TO WIDOW AND FAMILY 3. To maintain in tenantable repair, houses and other
structures and fences and to deliver the same in such
Allowance repair to the heirs or devisees when directed so to do
Refers to the monetary advances which are subject to by the court;
collation and are likewise deductible from their share in 4. To make improvements on the properties under
the estate of the decedent. administration with the necessary court approval except
for necessary repairs (Herrera, p. 121);
Persons entitled to allowance during proceedings 5. To possess and manage the estate when necessary:
1. Legitimate surviving spouse (Nepomuceno v. Court of a. For the payment of debts; and
Appeals, G.R. No. L-62952, October 9, 1985); and b. For payment of expenses of administration.
2. Children of the decedent.
Some restrictions on the power of an administrator or
Note: According to Art. 188 of the Civil Code, the executor (cannot ABS-LCP)
children need not be minors or incapacitated to be entitled 1. Cannot acquire by purchase, even at public or judicial
to allowance (Santero v. CFI of Cavite, G.R. No. 61700- auction, either in person or mediation of another, the
03, Sept. 24, 1987). property under administration Art. 1491, NCC);
2. Cannot borrow money without authority of the court;
Grandchildren are not entitled to allowance under Rule 83 3. Cannot speculate with fund under administration (Sec.
(Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 2, Rule 85);
1996). 4. Cannot lease the property for more than one year (Art.
1878, NCC);
When liabilities exceed the assets of the estate, his widow
and children are not entitled to support pending the A view is held, however, that the aforesaid provision of
liquidation of the intestate estate, on the ground that such Art. 1878 of the Civil Code on agency should not apply
support, having the character of an advance payment, is to leases entered into by an executor or administrator,
to be deducted from the respective share of each heir under the theory that they represent not only the estate
after the date of the first publication. Otherwise, they are unlike that of a regular administrator, is not conditioned
barred forever. upon the payment of such debts (Regalado, p. 74).
Even if the testator acknowledged the debt in his will and SECTION 5. CLAIMS WHICH MUST BE FILED UNDER
instructed the executor to pay the debt, the statute of non- NOTICE. IF NOT FILED, BARRED; EXCEPTIONS.
claims must still be complied with; otherwise the claim Claims referred to under this section refer to claims for the
may also be barred. recovery of money and which are not secured by a lien
against the property of the estate (Olave v. Canlas, G.R.
Exception: Belated claims No. L-12709, February 28, 1962).
A deficiency judgment is a contingent claim and therefore, SECTION 7. MORTGAGE DEBT DUE FROM ESTATE
must be filed with the probate court where the settlement
of the deceased is pending, within the period fixed for the Creditor holding a claim secured by a mortgage or
filing of claims (First National City Bank of New York v. other collateral security
Cheng Tan, G.R. No. L-14234, February 28, 1962).
Alternative remedies: (AFR)
Claims Extinguished by 1. Abandon or waive the security and prosecute his claim
Actions which Survive
Death against the estate and share in the general distribution
of the assets of the estate;
Claim is not extinguished 2. Foreclose his mortgage or realize upon his security by
Personal to either of the by death but shall be action in court making the executor or administrator a
parties and is prosecuted as a money party defendant and if there is judgment for deficiency,
extinguished by death claim against the estate he may file a claim (contingent) against the estate
of the deceased within the statute of non-claims;
3. Rely solely on his mortgage and foreclose (judicially or
Examples: legal
extrajudicially) the same at anytime within the period
separation, annulment of Example: contractual
of the statute of limitations but he cannot be admitted as
marriage, declaration of money claim
creditor and shall not receive in the distribution of the
nullity of marriage
other assets of the estate.
Where the defendant dies while the action for a sum of Note: The mortgage creditor can avail of only one of the
money is pending against him in the Court of Appeals, he three remedies and if he fails to recover under that
shall be substituted therein by his legal representative but remedy he can not avail of any of the other two remedies
the final judgment of the appellate court shall not be (Bachrach Motor Co., Inc., v. Icarangal, G.R. No. L-45350,
enforceable by a writ of execution but should be filed in May 29,1939).
the probate court as a money claim in accordance with
Sec. 5 of Rule 86 (Paredes, et al. v. Moya, G.R. No. L- The rule reserves a right to the executor or administrator
38051, December 26, 1973). If none of the heirs is willing of an estate to redeem a mortgaged or pledged property
to be substituted defendant, the creditor has to procure of a decedent which the mortgage or pledgee has opted
the appointment of an executor/administrator (Sec. 16, to foreclose, instead of filing a money claim with the
Rule 3). probate court, under said Section 7 of Rule 86. While the
redemption is subject to the approval of the probate court,
If a final judgment had already been rendered against the the exercise of the right is discretionary upon the said
decedent prior to his death, but without levy on execution executor or administrator and may not be ordered by the
having been effected against his property, such judgment probate court upon its own motion (Manalansan v.
must also be filed as a claim against the estate in the Castaneda, G.R. No. L-43607, June 27, 1978).
manner provided for by this Rule. If levy has already been
made before his death, execution shall proceed (Sec. 7 SECTION 8. CLAIM OF EXECUTOR OR
[c], Rule 39). ADMINISTRATOR AGAINST AN ESTATE
This is one of the instances where a special administrator
SECTION 6. SOLIDARY OBLIGATION OF DECEDENT is appointed. The special administrator will have authority
Claim should be filed against decedent as if he were the to act only with respect to the claim of the regular
only debtor without prejudice on the part of the estate to administrator or the executor (Regalado, p. 83).
recover contribution from the other debtor.
SECTION 9. HOW TO FILE A CLAIM. CONTENTS
Joint obligation of decedent THEREOF. NOTICE TO EXECUTOR OR
The claim must be confined to the portion belonging to the ADMINISTRATOR
decedent.
How to file a claim:
1. Deliver the claim with the necessary vouchers to the
clerk of court;
2. Serve a copy thereof on the executor or administrator;
3. If the claim is due, it must be supported by an affidavit 3. Action to recover damages for any injury to person or
stating the amount due and the fact that there has been property, real or personal (tortuous acts).
no offsets;
4. If the claim is not due or contingent, it must be These are actions that survive the death of the decedent.
accompanied by an affidavit stating the particulars
thereof. An action for revival of money judgment may be filed
against the administrator to preempt prescription of
SECTION 10. ANSWER OF EXECUTOR OR judgment (Romualdez v. Tiglao, G.R. No. L-51151, July
ADMINISTRATOR. OFFSETS 24, 1981).
Executor shall file his answer to the claim within 15 days
after service of a copy of the claim.
Rule 87, Sec. 1 Rule 86, Sec. 5
The executor or administrator may interpose any Actions that may be
Actions that may be
counterclaim in offset of a claim against the estate. Said commenced directly
commenced against the
counterclaim is regarded as a compulsory counterclaim as against the executor and
estate of the deceased
the failure to file the same shall bar the claim forever. administrator
Money claims, debts
SECTION 11. DISPOSITION OF ADMITTED CLAIM Recovery of real/ personal incurred by the deceased
The heir, legatee or devisee may oppose the claim property (or any interest during his lifetime arising
admitted by the executor or administrator. therein) from the estate; from contract;
SECTION 12. TRIAL OF CONTESTED CLAIM Enforcement of alien Claims for funeral
The court may refer the claim to a commissioner. thereon; expenses or for the last
illness of the decedent;
SECTION 13. JUDGMENT APPEALABLE Action to recover damages
Judgment against the executor and administrator shall not arising from tort. Judgment for money
create any lien upon the property of the estate or does not against decedent.
constitute a specific lien which may be registered on such
property. SECTION 2. EXECUTOR OR ADMINISTRATOR MAY
BRING OR DEFEND ACTIONS WHICH SURVIVE
Judgment of a probate court approving or disapproving a
claim is appealable. SECTION 3. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
Note: The mode of appeal is record on appeal and must Before distribution is made or before any residue is
be filed within 30 days from notice of judgment. known, the heirs and devisees have no cause of action
against the executor or administrator for recovery of the
SECTION 14. COSTS property left by the decedent.
R ULE 87 General Rule: The heirs have no legal standing to sue for
the recovery of property of the estate during the pendency
A CTIONS BY AND AGAINST
of administration proceedings.
E XECUTORS AND
A DMINISTRATORS Exceptions:
1. If the executor or administrator is unwilling or refuses to
bring suit;
SECTION 1. ACTIONS WHICH MAY AND WHICH MAY 2. When the administrator is alleged to have participated
NOT BE BROUGHT AGAINST EXECUTOR AND in the act complained of and he is made a party
ADMINISTRATOR defendant;
Actions which may be commenced directly against the 3. When there is no appointed administrator (see Rioferio,
executor or administrator: et al. v. Court of Appeals, G.R. No. 129008, January 13,
1. Recovery of real or personal property or any interest 2004).
therein from the estate;
2. Enforcement of a lien thereon;
SECTION 5. MORTGAGE DUE ESTATE MAY BE The executor or administrator may, on his own initiative or
FORECLOSED on option of the creditors and as directed by the court,
Note: There is no need for a special authority from the institute an action for the recovery of said property, but the
court for the administrator or executor to bring an action court may direct the creditors to defray part of the costs
for foreclosure on behalf of the estate (Calimbas v. and expenses of the suit since said action is for their own
Paguio, G.R. No. L-22197, December 2, 1924). benefit (Regalado, p. 93).
SECTION 6. PROCEEDINGS WHEN PROPERTY SECTION 10. WHEN CREDITOR MAY BRING ACTION.
CONCEALED, EMBEZZLED, OR FRAUDULENTLY LIEN FOR COSTS
CONVEYED
The court may cite any person suspected of having Requisites Before Action may be filed by Creditors:
concealed, embezzled, or conveyed away any of the (D-FAN LaBaN)
money, goods, or chattels of the deceased, or having in 1. There is a deficiency of assets in the hands of an
his possession or knowledge any deed, contract, bond, or executor or administrator for the payment of debts and
other writing which contains evidence of or tends to expenses of administration;
disclose the right, title, interest, or claim of the deceased 2. The deceased in his lifetime had made or attempted to
to real or personal estate, or the last will and testament of make a fraudulent conveyance of his property or had so
the deceased, to appear before it and be examined under conveyed such property that by law the conveyance
oath; if such person refuses to appear, or to answer on would be void as against his creditors;
such examination or such interrogatories, the court may 3. The subject of the attempted conveyance would be
punish him for contempt, and may commit him to prison. liable to attachment in his lifetime;
4. The executor or administrator has shown no desire to
The interrogatories put to any such person, and his file action or failed to institute the same within a
answers thereto, shall be in writing and filed with the reasonable time;
clerk’s office. 5. Leave is granted by the court to the creditor to file the
action;
Purpose: To elicit information or to secure evidence from 6. A bond is filed by the creditor;
those persons suspected of having possession or 7. The action by the creditor is in the name of the executor
knowledge of property or will of the deceased, or of having or administrator.
concealed, embezzled or conveyed away any properties
of the deceased (Herrera, p. 171). Note: The last three requisites are unnecessary where the
grantee is the executor or administrator himself, in which
SECTION 7. PERSON ENTRUSTED WITH ESTATE event, the action should be in the name of all the creditors
COMPELLED TO RENDER ACCOUNT (Herrera, p. 175).
the debts and expenses (Aldamiz v. Judge of CFI of SECTION 5. HOW CONTINGENT CLAIM BECOMING
Mindoro, G.R. No. L-2360, December 29, 1949). ABSOLUTE IN TWO YEARS ALLOWED AND PAID
1. If such contingent claim becomes absolute and is
Is execution a proper remedy to satisfy an approved presented to the court as an absolute claim within two
claim? No, because: years from the time allowed for the presentation of
1. Payment approving a claim does not create a lien upon claims, it will be paid in the same manner as the other
a property of the estate; absolute claims.
2. Special procedure is for the court to order the sale to 2. If the contingent claim matures after the expiration of
satisfy the claim. the two years, the creditors may sue the distributees,
who are liable in proportion to the shares in the estate
General Rule: Payment of the debts of the estate must be respectively received by them (Jaucian v. Querol, G.R.
taken in the following order of preference: No. L-11307, October 5, 1918).
1. From the portion or property designated in the will,
2. From the personal property, and It has been ruled that the only instance wherein a creditor
3. From the real property. can file an action against a distributee of the debtor’s
assets is under Sec. 5, Rule 88. The contingent claims
Exception: The court, on petition of interested parties, must first have been established and allowed in the
may modify such order of disposition. probate court before the creditors can file an action
directly against the distributees (De Bautista v. De
SECTION 2. PART OF ESTATE FROM WHICH DEBT Guzman, G.R. No. L-28298, November 25, 1983).
PAID WHEN PROVISION MADE BY WILL
If the testator makes a provision in his will or designates SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES
the estate to be appropriated for the payment of his debts WHERE DEVISEES, LEGATEES, OR HEIRS HAVE
that will be followed. BEEN IN POSSESSION
But if it is not sufficient, such part of the estate as is not SECTION 7. ORDER OF PAYMENT IF ESTATE
disposed of by will, if any, shall be appropriated for that INSOLVENT
purpose. If estate is insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of
SECTION 3. PERSONALTY FIRST CHARGEABLE FOR the Civil Code (Concurrence and Preference of Credits)
DEBTS, THEN REALTY must apply.
Two instances when realty is liable for debts and SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION
expenses TO CLAIMS
1. When the personal estate of the decedent is not
sufficient for that purpose; SECTION 9. ESTATE OF INSOLVENT NONRESIDENT,
2. Where the sale of such personalty would be to the HOW DISPOSED OF
detriment of the participants of the estate. In case administration is taken in the Philippines of the
estate of a person who was at the time of his death an
SECTION 4. ESTATE TO BE RETAINED TO MEET inhabitant of another country, and who died insolvent, his
CONTINGENT CLAIMS estate in the Philippines shall be so disposed of that his
If the court is satisfied that the contingent claim duly filed creditors in and outside the Philippines may receive an
is valid, it may order the executor or administrator to retain equal share, in proportion to their respective credits.
in his hands a sufficient part of the estate to pay a portion
equal to the dividend of the creditors. SECTION 10. WHEN AND HOW CLAIM PROVED
OUTSIDE THE PHILIPPINES AGAINST INSOLVENT
Requisites (FAV): RESIDENT’S ESTATE PAID
1. Contingent claim is duly filed; Claims proven outside the Philippines where the executor
2. The claim has become absolute; and had knowledge and opportunity to contest its allowance
3. Court is satisfied that the claim is valid. therein may be added to the list of claims in the
Philippines against the estate of an insolvent resident and
the estate will be distributed equally among those
creditors.
SECTION 3. PERSONS INTERESTED MAY PREVENT exception is when the court so authorizes (Sec. 15, Rule
SUCH SALE, ETC., BY GIVING BOND 88).
If the opposition to the sale is based on the fact that the
oppositor claims title to the property to be sold, the court SECTION 8. WHEN COURT MAY AUTHORIZE
will hold in abeyance the authority to sell such property CONVEYANCE OF REALTY WHICH DECEASED
until the issue of ownership has been settled in an CONTRACTED TO CONVEY. NOTICE. EFFECT OF
ordinary action, since the probate court generally has no DEED
jurisdiction to resolve issues of ownership in the
administration proceedings (Pio Barreto Realty Dev., Inc. SECTION 9. WHEN COURT MAY AUTHORIZE
v. Court of Appeals, et al., G.R. Nos. 62431-33, August CONVEYANCE OF LANDS WHICH DECEASED HELD
31, 1984). IN TRUST
SECTION 7. REGULATIONS FOR GRANTING A separate action for the declaration of heirs is not
AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE necessary.
ENCUMBER ESTATE
Application for authority to sell, mortgage or encumber Included in the jurisdiction of the probate court to make a
property of the estate may be denied by the court if: declaration of heirs is the power to entertain the question
1. The disposition is not for any of the reasons specified whether or not a person is acknowledged natural child of
by the rules; or decedent (Conde v. Abaya, G.R. No. 4275, March 23,
2. Under Section 3 Rule 89, any person interested in the 1909), the validity of disinheritance effected by the
estate gives a bond conditioned to pay the debts, testator (Hilado v. Ponce de Leon, G.R. No. 8020-R,
expenses of administration and legacies. October 22, 1953), and the status of a woman who claims
to be the lawful wife of the decedent (Torres v. Javier,
In case of sale, may there be payment in installment? G.R. No. L-10560, March 24, 1916). However, the
As a general rule no because one of the duties of an adoption decree cannot be assailed collaterally in
executor or administrator is to settle the debts of the settlement proceedings (Santos v. Aranzanso, G.R. No. L-
estate; thus, there is a need for immediate cash. The 26940, August 21, 1982).
intestacy) and without any legal heirs, becomes the 3. The deceased left properties.
property of the State upon his death.
SECTION 2. ORDER FOR HEARING
Nature of escheat proceedings: Escheat is not an If the petition is sufficient in form and substance the court
ordinary civil action but a special proceeding that should shall:
be commenced not by complaint but by petition (Municipal 1. Make an order of hearing – hearing shall not be more
Council of San Pedro, Laguna v. Colegio de San Jose, than 6 months after entry of order;
G.R. No. L-45460, February 25, 1938). 2. Direct the publication of a copy of the order – at least
once a week for 6 consecutive weeks.
Three instances of escheats
1. When a person dies intestate leaving no heir but Remedy of respondent: When the petition does not state
leaving property in the Philippines (Section 1); facts which entitle the petitioner to the remedy prayed for,
2. Reversion Proceedings – Sale in violation of the the respondent may file a Motion to Dismiss the petition
Constitutional provision; (Herrera, p.227).
This shall be governed by Rule 91. However, the action SECTION 3. HEARING AND JUDGMENT
must be instituted in the province where the land lies in
whole or in part. Requisites:
1. Publication of the order;
Note: Reversion will not be allowed even if the original 2. Person died intestate;
buyer was an alien, if later on the title to the property 3. He is seized of real/personal property in the Philippines;
was transferred by succession to the buyer’s heirs who 4. He left no heir or person entitled to such property; and
are qualified parties, i.e. Philippine citizens (see 5. There is no sufficient cause to the contrary.
Republic v. Registry of Deeds of Roxas City, G.R. No.
158230, 16 July 2008). To whom the property escheated will be assigned:
3. Unclaimed Balances Act (dormant accounts for 10 1. If personal property – to the municipality or city where
years shall be escheated). he last resided;
2. If real property – to the municipality or city where the
Escheat under the Unclaimed Balances Acts must be property is situated;
filed in the RTC of the place where the dormant 3. If deceased never resided in the Philippines – to the
deposits are found. municipality or city where the property may be found.
What is the basis of the state’s right to receive The court, at the instance of an interested party, or on its
property in escheat? Order of succession under the Civil own motion, may order the establishment of a permanent
Code, the state is the last heir of the decedent. trust, so that only the income from the property shall be
used (Sec. 3, Rule 91).
Who is the real party in interest? In all actions for the
reversion to the Government of lands of the public domain The right to escheat may be waived expressly or impliedly
or improvements thereon, the Republic of the Philippines (Herrera, p.229).
is the real party in interest. The action shall be instituted
by the Solicitor General or the officer acting in his stead, in SECTION 4. WHEN AND BY WHOM CLAIM TO
behalf of the Republic of the Philippines (Luis B. Manese, ESTATE FILED
et. al. v. Sps. Velasco, et. al., G.R. No. 164024, January
29, 2009). Who may file a claim on the escheated property: Any
devisee, legatee, heir, widow/er, or other person entitled
Where to file: thereto.
Resident – RTC of last residence.
Non-Resident – RTC of the place where his estate is When to File: Within 5 years from date of judgment,
located. otherwise it will be barred forever.
SECTION 5. OTHER ACTIONS FOR ESCHEATS Note: The court, in guardianship proceedings, is solely
concerned with the ward’s custody and proper
Period of filing claim: Within 5 years from the date of administration of his properties. Conflicts regarding
judgment. ownership or title in the hands of a guardian, in his
capacity as such should be litigated in a separate
Note: Under Art. 1014 of the Civil Code, the 5-year period proceeding (Festin, p.126).
is reckoned from the date the property was delivered to
the state and further provides that if the property had been In guardianship proceedings, the court cannot actually
sold, the municipality or city shall be accountable only for order the delivery of the ward’s property found to be
such part of the proceeds as may not have been lawfully embezzled, concealed or conveyed except when the title
spent. of the ward to the same is clear and indisputable. Absent
the exception, the recovery of such property must be
By whom: A person with interest. made in a separate proceeding (Cui v. Piccio, G.R. No. L-
5131, July 31, 1952).
Proceedings in escheat cannot be converted into
settlement of the estate. For the distribution of the estate Kinds of Guardians
of the decedent to be instituted, the proper petitions must A. According to scope:
be presented and the proceedings should comply with the 1. Guardian of the person – one who has been lawfully
requirements of the Rule. An escheat court does not have invested with the care of the person of the minor;
the power to order or proceed with the distribution of the 2. Guardian of the property – one appointed to have
estate of a decedent in escheat proceedings and the management of the estate of a minor or
adjudicate the properties to the oppositors (Municipality of incompetent;
Magalloon, Negros Occ. v. Ignatius Henry Bezore, G.R. 3. General guardian – one appointed to have the care
No. L- 14157, October 26, 1960). and custody of the person and of all the property of
the ward (Herrera, p. 237).
Guardian
A person in whom the law has entrusted the custody and
control of the person or estate or both of an infant, insane
or other person incapable of managing his own affairs
(Herrera, p. 235).
Incompetent includes: (CLeP DUN) There is no requirement for publication, only notice
1. Those suffering from penalty of civil interdiction; except in case of a nonresident incompetent.
2. Hospitalized lepers;
Next of Kin
SECTION 3. BONDS TO BE FILED. ACTIONS Next of kin does not mean the next of kindred but pertains
THEREON to those relatives who are entitled to share in the estate of
In case of breach of the bond’s conditions, the bond may the ward under the Law on Intestate Succession including
be prosecuted in the same proceeding or in a separate those who inherit per stirpes or by right of representation
action, for the use and benefit of the ward or of any (Lopez v. Teodoro, Sr., G.R. No. L-3071, May 29, 1950).
person legally interested in the estate.
Note: Notice to next of kin and interested persons is
The bond of the guardian is a continuing one against the jurisdictional. Failure to notify the next of kin shall be a
obligors and their estates until all of its conditions are ground for dismissal of the petition under this Rule
fulfilled. The mere fact that defendant was removed as (Singco v. Longa, G.R. No. L-27962, February 14, 1928).
guardian did not relieve her or her bondsmen from liability However, notice is not necessary where the next of kin to
during the time she was duly acting as such guardian the ward and all persons interested in the estate are her
(Guerrero v. Teran, G.R. No. L-4898, March 19, 1909). mother and guardian, uncles and aunts who agreed to
make the transfer of their respective shares in the
property to the corporation to be organized (Pardo de
R ULE 95 Tavera v. El Hogar Filipino, Inc. and Magdalena Estate,
S ELLING AND E NCUMBERING G.R. No. L-5893, February 28, 1956).
P ROPERTY OF W ARD SECTION 3. HEARING ON RETURN OF ORDER.
COSTS
SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO
SELL OR ENCUMBER ESTATE SECTION 4. CONTENTS OF ORDER FOR SALE OR
A. Grounds ENCUMBRANCE, AND HOW LONG EFFECTIVE
1. When the income of estate is insufficient to maintain The order of sale must specify the grounds.
the ward and his family or;
2. When it appears that it is for the benefit of the ward. General Rule: Sale must first be confirmed by the court,
B. Requirements and that until such confirmation, not even equitable title
1. Petition must be verified; passes (Herrera, p. 289).
2. Notice must be given to the next of kin; and
3. Hearing so that they may show cause why petition Exception: The court’s order expressly authorized the
should not be granted. guardian to execute and deliver to the purchaser definitely
named, a deed of conveyance to a parcel of land
Sale of the ward’s realty by the guardian without authority specifically described at a price already fixed and it was
from the court is void. Under the law, a parent acting intended to be the approval itself of the sale that was
merely as legal administrator of the property of his/her already perfected or agreed upon by the seller and the
children does not have the power to dispose of, or buyers, needing only a judicial go-ahead signal to reduce
alienate, the property of said minor without judicial the agreement to the statutory form and it had been made
approval (Lindain v. Court of Appeals, G.R. No. 95305, without departure from the terms of the order (Soriano, et.
August 20, 1992). al. v. Latono, G.R. No. L-3408, December 23, 1950).
For the sale or encumbrance of the property, a verified Duration of the order of sale and encumbrance of
petition is required (Sec 1 of this Rule), but no such property:
verification is required for that purpose with respect to the Within 1 year from the granting of the order. It is
estate of a decedent (Secs 1 and 4, Rule 89) and a mere presumed that if the property was not sold within 1 year,
motion therein will suffice. the ward has sufficient income.
SECTION 2. ORDER TO SHOW CAUSE THEREUPON The guardian, among others, cannot acquire by purchase
The court shall make an order directing the next of kin, even at a public or judicial auction, either in person or
and all persons interested in the estate, to show cause through the mediation of another, the property of the
why the petition under this Rule must not be granted. person or persons who may be under his guardianship
(Art. 1491, NCC).
The authority to sell or encumber shall not extend beyond property of the minor, duly approved by the court (Santo
1 year unless renewed by the court. Domingo v. Santo Domingo, G.R. No. L-10886, April 18,
1958).
Appeal is the proper remedy against an order of the court
authorizing the sale of the ward’s property (Lopez v. SECTION 4. ESTATE TO BE MANAGED FRUGALLY
Teodoro, G.R. No. L- 3071, May 29, 1950). AND PROCEEDS APPLIED TO MAINTENANCE OF
WARD
Note: There being a presumption that the sale of the The guardian is bound to exercise such diligence and
ward’s estate is valid, it cannot be attacked collaterally in prudence as reasonable men ordinarily employ in the
the registration proceedings. A separate action to avoid or conduct of their own affairs and will be held liable for any
rescind the sale on the grounds specified by law should loss which results from his failure to exercise such
be filed (Margate v. Rabacal, G.R. No. L-14302, April 30, prudence and diligence (Herrera, p. 301).
1963).
SECTION 5. GUARDIAN MAY BE AUTHORIZED TO
SECTION 5. COURT MAY ORDER INVESTMENT OF JOIN IN PARTITION PROCEEDINGS AFTER HEARING
PROCEEDS AND DIRECT MANAGEMENT OF ESTATE
Sections 1 & 2 of this Rule relate only to the investment of Requisites:
proceeds from the sale or encumbrance of the estate and 1. Hearing;
investment of other funds is covered by Section 5 of this 2. Notice to relatives of the ward; and
Rule. While Section 5 requires judicial authority in order 3. Careful investigation as to the necessity and propriety
that a guardian may invest the ward’s money, it does not of the proposed action.
provide that said authority must always be either prior to
or expressed (Philippine Trust Co. v. Ballesteros, G.R. No. SECTION 6. PROCEEDING WHEN PERSON
L-8532, October 11, 1957). SUSPECTED OF EMBEZZLING OR CONCEALING
PROPERTY OF WARD
3. Render a verified inventory within 3 months after his SECTION 2. WHEN GUARDIAN REMOVED OR
appointment and annually thereafter, and upon ALLOWED TO RESIGN. NEW APPOINTMENT
application of interested persons (Sec. 7);
4. To have the care and custody of the person of the Grounds for removal of a guardian
ward, and the management of his estate, or the 1. Insanity;
management of the estate only, as the case may be 2. Incapability or unsuitability to discharge functions;
(Sec. 1); 3. Wastage or mismanagement of the property of the
5. Render to court for its approval an accounting of the ward; and
property for 1 year from his appointment and every year 4. Failure to render an account or make a return within 30
thereafter, and upon application of interested persons days after it was due.
(Sec. 8); and
6. Pay the debts of the ward (Sec. 2). The remedy of a guardian from the order of removal is to
appeal (Olarte v. Enriquez, G.R. No. L-16098, October 31,
A guardian, just like a trustee, is prohibited under Article 1960).
736 of the Civil Code from making a donation of the
properties entrusted to him (Araneta v. Perez, G.R. No. L- The guardian may file a petition before the guardianship
18872, July 15, 1966). court for permission to resign is trust, stating the grounds
therefore, and accompanied by a report of the state of his
account and an offer to settle the account and deliver the
R ULE 97 estate over the court (Herrera, p. 314).
T ERMINATION OF G UARDIANSHIP
SECTION 3. OTHER TERMINATION OF
GUARDIANSHIP
SECTION 1. PETITION THAT COMPETENCY OF WARD Voluntary emancipation under the amendments
BE ADJUDGED, AND PROCEEDINGS THEREUPON introduced by R.A. No. 6809, is no longer recognized as a
ground for the termination of parental authority or
Who may file: guardianship (Herrera, p. 315).
1. Person who has been declared incompetent;
2. His guardian; SECTION 4. RECORD TO BE KEPT BY JUSTICE OF
3. Relative; or THE PEACE OR MUNICIPAL JUDGE
4. Friend.
SECTION 5. SERVICE OF JUDGMENT
Petition shall be verified by oath and shall state that such
person is then competent. Estate/Intestate Court Guardianship Court
Grounds for termination: Rules 73-90 Rules 92-97
1. Competency of the ward has been judicially determined;
2. Guardianship is no longer necessary; Statute of non-claims No statute of non-claims
3. Death of guardian; Can pass upon the merits Cannot pass upon the
4. Death of ward. of the claim merits of the claim
Sale of personal
Note: Notice of hearing of the petition is not intended as a Sale of personal or real
properties first
personal service process in the sense necessary to give properties first (Rule 95)
(Rule 89)
the court jurisdiction over the ward (In Re Guardianship of
Incompetent Jose de Inchausti v. Soler, G.R. No. L- Bond does not defeat the
Bond defeats the “petition
15119, January 19, 1920). “Petition for Authority to
for authority to Sell”
Sell”
Who may oppose: Publication (Rule 89) Personal notice (Rule 95)
1. Guardian;
2. Relative of the ward; or
Indefinite effectivity of 1 year effectivity of
3. Any other person, in the discretion of the court.
“authority to sell” “authority to sell”
May appoint a special No such thing as a
administrator special guardian
exemption is provided in the 2. Other written instruments where the trustee therein
provided in the will or if declines, resigns, dies, or is removed before
will (bond is only beneficiaries accomplishment of trust (Contractual Trust).
conditioned upon requested
payment of exemption. Note: This rule applies only to express trusts and not to
debts). implied trusts which arise by operation of law (Regalado,
Guardianship is p. 153).
Trusteeship is
terminated upon
Services of terminated upon SECTION 2. APPOINTMENT AND POWERS OF
attainment of age
executor or turning over the TRUSTEE UNDER WILL. EXECUTOR OF FORMER
of majority of the
administrator is property to TRUSTEE NEED NOT ADMINISTER TRUST
minor or upon
terminated upon beneficiary after No person succeeding to the trust as executor or
gaining
payment of debts expiration of trust administrator of a former trustee shall be required to
competency in
of the estate and (period may be accept such trust.
the case of an
distribution of provided for in
incompetent
property to heirs. the will or trust Note: Notice to and consent of the beneficiary are not
(need court order
contract). essential for the creation of the trust (De Leon v. Molo-
for the latter).
No obligation to Peckson, G.R. No. L-17809, December 29, 1962).
Must pay the Must pay the
pay debts of
debts of the debts of the The trustee to be appointed shall have the same rights,
beneficiary or
estate. ward. powers, and duties, and in whom the estate shall vest, as
trustor.
if he had been appointed by the testator.
Procedure for appointment of trustees under Rule 98
SECTION 3. APPOINTMENT AND POWERS OF NEW
TRUSTEE UNDER A WRITTEN INSTRUMENT
Allowance of the instrument
creating the trust (Probate of will) When a new trustee appointed: When a trustee under a
written instrument declines, resigns, dies or is removed
before the objects of the trust are accomplished and no
Petition by the executor/ administrator or adequate provision is made in such instrument supplying
the person appointed as trustee in the the vacancy.
instrument
SECTION 4. PROCEEDINGS WHERE TRUSTEE
APPOINTED ABROAD
Appointment of the trustee by the
When land in the Philippines is held in trust for a resident
court
by a trustee who derives his authority from abroad, such
trustee must petition the RTC where the land is situated,
Notice to all interested persons otherwise, the trust will be vacant and a new trustee will
be appointed.
Filing of bond by the trustee When a trust is created abroad for property in the
Philippines, judicial approval is still needed though the
trustor is alive.
SECTION 1. WHERE TRUSTEE APPOINTED
Jurisdiction: The RTC or MTC in which the will was SECTION 5. TRUSTEE MUST FILE BOND
allowed, if it be a will allowed in the Philippines, otherwise Neglect of trustees to file a bond will be interpreted by the
by the RTC of the province in which the property, or some court as resignation or a decline to accept the trust.
portion thereof, affected by the trust, is situated.
However, he may be exempted from bond when
A trustee is necessary to carry into effect: requested by:
1. A will creating a trust but the testator omitted to appoint 1. Testator;
a trustee in the Philippines (Testamentary Trust); and 2. All persons beneficially interested in the trust.
Nonetheless, the court may cancel such exemption must ordinarily be some ground for discharge other than
anytime. the mere wish of the trustee to be relieved (Herrera, p.
459).
SECTION 6. CONDITIONS INCLUDED IN BOND (ASIM)
1. That he will render upon oath at least once a year until Note: The trustee is prohibited from acquiring the property
his trust is fulfilled a true account of the property in his whether by purchase, even in a public or judicial action,
hands and of the management and disposition thereof, either in person or through the mediation of another. (Art.
and such other accounts as the court may order; 1491, NCC)
2. That at the expiration of his trust he will settle his
accounts in court and pay over and deliver all the estate SECTION 9. PROCEEDINGS FOR SALE OR
remaining in his hands, or due from him on such ENCUMBRANCE OF TRUST ESTATE
settlement, to the person or persons entitled thereto; The Rules on Sale and Encumbrance of Trust Estate shall
3. That the trustee will make and return to the court, at conform as nearly as may be to the provisions on Sale
such time as it may order, a true inventory of all the and Encumbrance by Guardians.
estate belonging to him as trustee, which at the time of
the making of such inventory shall have come to his
possession or knowledge; A DOPTION
4. That he will manage and dispose of all such estate, and
faithfully discharge his trust in relation thereto,
according to law and the will of the testator or the Preliminary Considerations
provisions of the instrument or order under which he is Note: The provisions of the Rules of Court on Adoption
appointed. have been amended by the Domestic Adoption Act of
1998 and the Inter-country Adoption Act of 1995. Sec. 6 of
When the trustee is appointed as a successor to a prior Rule 99 was already amended by Administrative Circular
trustee, the court may dispense with the making and No. 03-04-04 while Sec. 7 of Rule 99 was amended by
return of an inventory if one has already been filed. Administrative Circular No. 02-1-19-SC.
SECTION 7. APPRAISAL. COMPENSATION OF Effective August 22, 2002, there is a new Rule on
TRUSTEE Adoption (Section 33, Administrative Matter No. 02-6-02-
The compensation of the trustee is that which is provided SC).
by the instrument creating the trust. Otherwise, it shall be
fixed by the court. Nature and concept of adoption: Adoption is a juridical
act, a proceeding in rem, which creates between two
SECTION 8. REMOVAL OR RESIGNATION OF persons a relationship similar to that which results from
TRUSTEE legitimate paternity and filiation (Herrera, p. 317).
Financial capacity: While petitioner claims that she has R ULES ON D OMESTIC A DOPTION
the financial support and backing of her children and (Secs. 1-25, A.M. No. 02-6-02)
siblings, the ability to support the adoptees is personal to
the adopter, as adoption only creates a legal relation Procedure for Domestic Adoption under AM-02-6-02-
between the former and the latter (Landingin v. Republic SC
of the Philippines, G.R. No. 164948, 27 June 2006).
Petition for Domestic
Adoption
Note: When a foreigner who is married to Filipino citizen
seeks to adopt jointly with his/her spouse as relative within
the fourth civil degree of consanguinity or affinity of the Order of Hearing by the
Filipino spouse, the Domestic Adoption Act shall apply. court
2. That he has been living in the Philippines for at least DSWD or any duly licensed child placement or child
3 continuous years prior to the filing of the application caring agency. The child must be surrendered in
for adoption; writing. Such written instrument must be notarized and
3. Maintains residence until the adoption decree is signed in the presence of an authorized representative
entered; of the department after counseling has been made to
4. Certified by his diplomatic or consular office or any encourage the parents to keep the child (Sec. 5, AM 02-
appropriate government agency to have legal 1-19-SC).
capacity to adopt by his country; and 2. Judicial/Involuntary: Follow the procedure in
5. That his government allows the adoptee to enter his Proposed Rule on Commitment of Children (AM 02-1-
country as his adopted child. 19-SC) under special laws.
2. Sub-paragraph A.2 above; 3. The probable value and character of the estate of the
3. That his country has diplomatic relations with the adoptee;
Republic of the Philippines; 4. The first name, surname or names by which the
4. That he has been certified by his diplomatic or adoptee is to be known and registered in the Civil
consular office or any appropriate government Registry.
agency to have the legal capacity to adopt in his
country and his government allows the adoptee to The petition shall be verified with a certificate of non-
enter his country as his adopted child and reside forum shopping and specifically state at the heading of the
there permanently as an adopted child; and initiatory pleading whether the petition contains an
5. That he has been living in the Philippines for at least application for a change of name, rectification of simulated
three (3) continuous years prior to the filing of the birth, voluntary or involuntary commitment of children, or
petition and he maintains such residence until the declaration of child as abandoned, dependent or
adoption decree is entered. neglected.
Change of name: The present Rule on Domestic enter his country as his own adopted child unless
Adoption allows the petition to include an application for exempted under Section 4(2);
change of name (Sec. 10).
E. Home study report on the adopters. If the adopter is an
The title or caption must contain; alien or residing abroad but qualified to adopt, the home
1. The registered name of the child; study report by a foreign adoption agency duly
2. Aliases or other names by which the child has been accredited by the Inter-Country Adoption Board; and
known; and
3. The full name by which the child is to be known. F. Decree of annulment, nullity or legal separation of the
adopter as well as that of the biological parents of the
Annexes to the petition adoptee, if any.
A. Birth, baptismal or foundling certificate, as the case may
be, and school records showing the name, age and Procedure
residence of the adoptee; A. Order of hearing
1. It must be published at least once a week for 3
B. Affidavit of consent of the following: successive weeks;
1. The adoptee, if 10 years of age or over; 2. At the discretion of the court, copies of the order of
2. The biological parents of the child, if known, or the hearing shall be furnished to the office of the Solicitor
legal guardian, or the child-placement agency, child- General. Through the provincial or city prosecutor,
caring agency, or the proper government the DSWD and the biological parents of the adoptee,
instrumentality which has legal custody of the child; if known;
3. The legitimate and adopted children of the adopter 3. If a change in the name of the adoptee is prayed for
and of the adoptee, if any, who are 10 years of age or in the petition, notice to the Solicitor General shall be
over; mandatory;
4. The illegitimate children of the adopter living with him 4. If the petition and attachments are sufficient in form
who are 10 years of age or over; and and substance, the court shall issue an order
5. The spouse, if any, of the adopter or adoptee (Sec.12).
(Sec.11).
Contents of order
Parental consent 1. Adoptee’s registered name in the birth certificate, and
Parental consent required by law in adoption refers to the names by which the adoptee has been known (to
parents who have not abandoned their child. be stated in the caption);
Accordingly, one whom such child was given by his 2. Petition’s purpose;
mother, who does not wish to be identified, is 3. Complete name which the adoptee will use if the
considered the guardian of the child and can give valid petition is granted;
consent to the child’s adoption, as said child is 4. Hearing’s date and place of hearing (within 6 months
considered as abandoned (Duncan v. CFI Rizal, G.R. from the date of the order’s issuance)
No. L-30576, February 10, 1976). 5. Directive to the social worker to prepare and submit
child and home study reports before the hearing, if
Nevertheless, the requirement of written consent can be such reports were not attached to the petition due to
dispensed with if the parent has abandoned the child or unavailability at the time of the filing; and
that such parent is insane or hopelessly intemperate, 6. Directive to the social worker to conduct counseling
provided that sufficient facts are alleged in the petition sessions with the biological parents and to submit a
in order to warrant exemption (Cang v. Court of report before the hearing (Sec. 12).
Appeals, supra).
The necessary jurisdictional requirements should be
C.Child study report on the adoptee and his biological indicated in the petition for adoption. Thus, the name of
parents; the person to be adopted is that appearing in the civil
registry and the court does not acquire jurisdiction if a
D.If the petitioner is an alien, certification by his diplomatic different name is carried in the notice of publication
or consular office or any appropriate government (Cruz v. Republic of the Philippines, G.R. No. L-20927,
agency that he has the legal capacity to adopt in his July 26, 1966).
country and that his government allows the adoptee to
B. Child & Home Study Reports – The social worker Exception: Same as exemptions from requirements of
verifies with the Civil Registry the real identity and the residency and certification:
name of adoptee and the fact that he is legally available 1. A former Filipino citizen who seeks to adopt a relative
for adoption. If the adoptee’s birth was not registered, within the 4th degree;
the social worker shall register the adoptee and secure 2. One who seeks to adopt the legitimate child of his
a certificate of foundling or late registration (Sec.13). Filipino spouse;
3. One who is married to a Filipino citizen and seeks to
The social worker may make recommendations to the adopt jointly with his spouse the latter’s relative within
court if he finds some grounds to deny the petition. the 4th degree.
The social worker shall establish: Temporary Parental Authority: It is provisionally vested
1. The child is legally available for adoption; in the adopting parents during the period of trial custody,
2. The documents in support thereof are valid and before the issuance of a decree of adoption, precisely
authentic; because the adopting parents are given actual custody of
3. The adopter has sincere intentions towards the the child during such trial period (Herrera, p. 356).
adoptee;
4. The adoption shall inure to the best interests of the However, where the trial custody had not begun or had
child. already been completed at the time of quasi-delict
committed by a child to be adopted, the adopting parents
In case of alien adopter, the home study report must cannot assume any liability therefor. The natural parents
show: should be joined as indispensable parties to the suit for
1. Adopter’s legal capacity to adopt; damages (Tamargo v. Court of Appeals, G.R. No. 8044,
2. His government allows the adoptee to enter his June 3, 1992).
country as his adopted child in the absence of the
certification required under Sec. 7(b), R.A. No. 8552. If the child to be adopted is below 7 years of age and is
placed with the prospective adopter through a DSWD pre-
C.Hearing – Hearing is to be held within 6 months from adoption placement authority, the court shall order that
the date of issuance of the order (Sec.14). the prospective adopter shall enjoy all the benefits to
which the biological parent is entitled from the date the
Except: In case of application for change of name adoptee is placed with him.
which hearing must not be within 4 months after last
publication nor within 30 days prior to election. The social worker shall submit to the court a report on the
result of the trial custody within 2 weeks after its
The petitioner and the adoptee must personally appear termination.
and the former must testify in court.
E. Decree of adoption – If the court is convinced from the
D.Supervised Trial Custody (STC) – Before issuance of trial custody report and the evidence presented, that the
decree of adoption the court shall give the adopter trial adoption shall redound to the best interest of the child,
custody of the adoptee for at least 6 months (Sec.15). an adoption decree shall be issued (Sec.16).
Ratio: In order for the parties to adjust psychologically The decree of adoption shall take effect as of the date
and emotionally with each other and to establish a of filing of the original petition.
bonding relationship.
Contents of the adoption decree
Note: Court may reduce or exempt parties from 1. The name by which the child is to be known;
Supervised Trial Custody, if it finds that the same shall
be for the best interest of the adoptee.
An amended birth certificate shall be issued. The Grounds for rescission (Sec. 19)
original birth certificate shall be stamped “cancelled” 1. Repeated physical and verbal maltreatment despite
and shall be sealed in the Civil Registry records. having undergone counseling;
2. Attempt on the adoptee’s life;
Book of adoptions: All matters relative to adoption and 3. Sexual assault or violence;
all incidents arising after the issuance of the decree shall 4. Abandonment or failure to comply with parental
be recorded in the book of adoption kept by the clerk of obligations.
court of the Family Court (Sec. 17).
Order to answer: The court shall order the adverse party
Confidentiality of proceedings and records to file an answer within 15 days from the receipt thereof
General Rule: After compliance with jurisdictional (Sec. 22).
requirements, all adoption hearings shall be confidential
and shall not be open to the public. All related records Judgment: If the court finds that the petition’s allegations
shall be kept strictly confidential (Sec. 18). are true, it shall order the rescission of adoption (Sec. 23).
Exception: For security reasons or for the best interest of The court shall order that:
the child, the Court may, upon meritorious grounds allow 1. The biological parents’ parental authority, or the
the release of the information with restrictions, if DSWD’s legal custody, shall be restored if the adoptee
necessary (Herrera, p. 348). is still a minor or incapacitated;
2. The reciprocal rights and obligations of the adopter and A child under the Inter-Country Adoption Act is defined as
the adoptee shall be extinguished; any person below fifteen (15) years of age.
3. The successional rights shall revert to its status prior to
adoption, as of the date of judgment of judicial The Board shall ensure that all possibilities for adoption of
rescission. Vested rights acquired prior to judicial the child under the Family Code have been exhausted
rescission shall be respected; and that inter-country adoption is in the best interest of the
4. The adoptee shall use the name stated in his original child (Section 7, R.A. No. 8043).
birth/foundling certificate;
5. The Civil Registrar where the adoption decree was Contents of petition
registered shall cancel the new birth certificate of the
adoptee and reinstate his original birth/foundling Petitioner must allege:
certificate. 1. His age and the age of the child to be adopted, showing
that he is at least twenty-seven (27) years of age and at
Service of judgment – A certified true copy of the least sixteen (16) years older than the child to be
judgment and a certificate of finality shall be served by the adopted at the time of application, unless the petitioner
petitioner upon the Civil Registrar within 30 days from is the parent by nature of the child to be adopted or the
receipt of the certificate of finality. The Civil Registrar shall spouse of such parent, in which case the age difference
enter the rescission decree in the register and submit does not apply;
proof of compliance to the court within 30 days from 2. If married, the name of the spouse who must be joined
receipt of the decree (Sec. 24). as co-petitioner except when the adoptee is a legitimate
child of his spouse;
3. That he has the capacity to act and assume all rights
I NTER -C OUNTRY A DOPTION and responsibilities of parental authority under his
national laws, and has undergone the appropriate
counseling from an accredited counselor in his country;
Objectives 4. That he has not been convicted of a crime involving
1. To consider inter-country adoption as an alternative moral turpitude;
means of child care, if the child cannot be placed in a 5. That he is eligible to adopt under his national law;
foster/adoptive family or cannot be cared for in the 6. That he can provide the proper care and support and
Philippines; instill the necessary moral values and example to all his
2. To ensure that the child enjoys the same protection children, including the child to be adopted;
accorded to children in domestic adoption; 7. That he agrees to uphold the basic rights of the child,
3. To ensure that the placement does not result in as embodied under Philippine laws and the U.N.
improper financial gain for those involved (Sec. 27). Convention on the Rights of the Child, and to abide by
the rules and regulations issued to implement the
Where to file petition provisions of R.A. No. 8043;
1. A verified petition to adopt a Filipino child may be filed 8. That he comes from a country with which the
by a foreign national or Filipino citizen permanently Philippines has diplomatic relations and whose
residing abroad with the Family Court having jurisdiction government maintains a similarly authorized and
over the place where the child resides or may be found; accredited agency and that adoption of a Filipino child
2. It may be filed directly with the Inter-Country Adoption is allowed under his national laws; and
Board (Sec. 28). 9. That he possesses all the qualifications and none of the
disqualifications provided in this Rule, in R.A. No. 8043
Who may adopt: and in all other applicable Philippine laws (Sec. 30).
1. Any alien or Filipino citizen permanently residing abroad
who is at least twenty-seven (27) years of age; Annexes : The following must be in writing and officially
2. Other requirements are the same as with R.A. No. translated in English:
8552. 1. Birth certificate of petitioner;
2. Marriage contract, if married, and, if applicable, the
Who may be adopted: Only a child legally available for divorce decree, or judgment dissolving the marriage;
domestic adoption may be the subject of inter-country 3. Sworn statement of consent of petitioner’s biological
adoption (Sec.29). or adopted children above ten (10) years of age;
Burden of proof: In all actions and proceedings, the Kinds of Writ of Habeas Corpus
burden of proving insanity is on the plaintiff who alleges it; 1. Preliminary citation – If the person is detained under
but where it is set up as an affirmative defense, the governmental authority and the illegality of his detention
burden of proving rests on the defendant. is not patent from the petition for the writ, the court
issues the citation to the government officer having
Estate of the insane person: Pending an appeal from custody to show cause why the writ of habeas corpus
the judgment declaring a person to be insane, the trial should not issue.
court has jurisdiction to order a third party to appear and 2. Peremptory writ – If the cause of the detention
show cause why the property of the insane should not be appears to be patently illegal. Noncompliance with this
delivered to the guardian. It is the duty of the court to is punishable.
protect the property of the insane pending the appeal
4. The writ is not ordinarily granted where the law provides In cases of illegal confinement or detention
for other remedies in the regular course, and in the General rule: The release, whether permanent or
absence of exceptional circumstances. temporary, of a detained person renders the petition for
5. Habeas corpus should not be granted in advance of habeas corpus moot and academic.
trial.
6. Habeas corpus is a summary remedy. Exception: When there are restraints attached to his
7. The writ of habeas corpus does not act upon the release which precludes freedom of action, in which case
prisoner who seeks relief, but upon the person who the court can still inquire into the nature of his involuntary
holds him in what is alleged to be the unlawful authority. restraint (Villavicencio v. Lukban, G.R. No. L-
Hence, the only parties before the court are the 14639, March 25, 1919).
petitioner (prisoner) and the person holding the
petitioner in custody, and the only question to be In Bagtas v. Hon. Ruth C. Santos, et al., (G.R. No.
resolved is whether the custodian has authority to 166682, November 27, 2009), the Court held that the
deprive the petitioner of his liberty. The writ may be mere production of child in the habeas corpus case does
denied if the petitioner fails to show facts that he is not warrant outright dismissal. A trial to determine who
entitled thereto ex merito justicias. had rightful custody over the child should be conducted by
8. A writ of habeas corpus, which is regarded as a the court.
“palladium of liberty” is a prerogative writ which does
not issue as a matter of right but in the sound discretion Voluntary Restraint
of the court. It is, however, a writ of right on proper General Rule: Writ not available if restraint is voluntary
formalities being made by proof. Resort to the writ is not (Kelly v. Director of Prisons, G.R. No. L-20478, March 14,
to inquire into the criminal act of which a complaint is 1923).
made but unto the right of liberty, notwithstanding the
act, and the immediate purpose to be served is relief Exception: Writ will lie to enable the parents (or person
from the illegal restraint. having substituted parental authority) to recover custody
of a minor child although she is in custody of a 3rd person
Purpose: The essential object and purpose of the writ of on her own volition (Tijing v. Court of Appeals, G.R. No.
habeas corpus is to inquire into all manner of involuntary 125901, March 8, 2001).
restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal (Moncupa v. Note: Voluntariness is viewed from the point of view of the
Enrile, G.R. No. 63345, January 30, 1986). person entitled to custody.
The ultimate purpose of the writ of habeas corpus is to When petition for habeas corpus not proper:
relieve a person from unlawful restraint (Castriciones v. 1. For asserting or vindicating denial of right to bail;
Chief of Staff of Armed forces of the Philippines, G.R. No. 2. For correcting errors in appreciation of
65731, September 28, 1989). facts/appreciation of law.
The writ of habeas corpus was devised and exists as a Whether the petition for the writ of habeas corpus
speedy and effectual remedy to relieve persons from may be properly filed together with the petition for
unlawful restraint, and as the best and only sufficient certiorari and mandamus: The writs of habeas corpus
defense of personal freedom. And any further rights of the and certiorari may be ancillary to each other where
parties are left untouched by decision on the writ, whose necessary to give effect to the supervisory powers of the
principal purpose is to set the individual at liberty higher courts.
(Villavicencio v. Lukban, G.R. No. L-14639, March 25,
1919). Hence, a writ of habeas corpus may be used with the writ
of certiorari for the purpose of review (Galvez v. Court of
Grounds for suspension of the privilege of the writ of Appeals, G.R. No. 114046, October 24, 1994).
habeas corpus under the Constitution
1. Invasion, when public safety requires it; SECTION 2. WHO MAY GRANT THE WRIT
2. Rebellion, when public safety requires it (Article VII, The RTC, CA, and SC have concurrent jurisdiction to
Section 18 of the 1987 Constitution) issue writs of habeas corpus. The MTC, by virtue of
special jurisdiction under B.P. Blg. 129, can issue the writ
in case there is no available RTC judge. Hierarchy of
courts is not observed.
Jurisdiction in cases of habeas corpus with respect to SECTION 4. WHEN WRIT NOT ALLOWED OR
custody of minors: Although the Family Court where the DISCHARGED AUTHORIZED
petitioner resides or where the minor may be found has (JUCIT)
exclusive and original jurisdiction to hear petitions for 1. If jurisdiction appears after the writ is allowed;
habeas corpus with respect to custody of minors, the 2. If the person is in the custody of an officer under
Supreme Court and the Court of Appeals can take process issued by a court or by virtue of a judgment or
cognizance of such petition in order that it can be order of a court of record which has jurisdiction to issue
enforceable within the Philippines. the process, render the judgment or make the order;
3. If the person is charged with or convicted of an offense
However, the return can be heard in the FC/RTC (if there in the Philippines;
is no FC in the judicial region) and there is no need to file 4. If the person is suffering imprisonment under lawful
a separate petition for custody because the issue can be judgment.
ventilated in the petition for the writ. 5. Three (3)-day detention of a suspect for three (3) days
without charge (Sec. 18, Ra No. 9372 “Human Security
Act of 2007” to take effect on July 14, 2007).
or discharge from custody. What is to be inquired into is 3. The officer shall summon the person detaining
the legality of his detention as of, at the earliest, the filing another to appear before the court to show the cause
of the application for the writ of habeas corpus, for even if of the imprisonment or restraint.
the detention is at its inception illegal, it may, by reason of
some supervening events such as the instances SECTION 7. HOW PRISONER DESIGNATED AND
mentioned in Sec. 4, be no longer illegal at the time of the WRIT SERVED
filing of the application (Velasco v. Court of Appeals, G.R.
No. 118644, July 7, 1995). How service is made:
1. By leaving the original of the writ with the person to
Note: Posting of bail is not a waiver. Under the Revised whom it is directed or to any person having custody if
Rules on Criminal Procedure, as application for bail is not the former cannot be found or has not the person in his
necessarily a bar to challenge the validity of the arrest custody; and
(Sec. 26, Rule 114). 2. By preserving a copy on which to make return of
service.
SECTION 5. WHEN WRIT MUST BE GRANTED AND
ISSUED The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person of the
Procedure for grant of writ: (VACS RH) respondent by mere service of writ.
1. Verified petition signed by the party for whose relief it is
intended; or by some other person in his behalf; SECTION 8. HOW WRIT EXECUTED AND RETURNED
2. Allowance of writ;
3. Command officer to produce; General rule: Officer to whom writ is directed shall
4. Service of writ by sheriff or other officer; convey the detained person on the day specified in the
5. Return; and writ:
6. Hearing on return. 1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same court.
General Rule: If it appears that the writ should issue, the
clerk of court issues the writ under the court’s seal (Sec. Exception: If the person to be produced has sickness or
5, Rule 102). infirmity such that he cannot be brought before the court
without danger.
Exception: In emergency cases, the judge may issue the
writ under his own hand and deputize any person to serve Officer shall:
it. 1. Convey the person so imprisoned before the judge,
unless from sickness or infirmity, such person cannot,
The law even makes it the duty of the court to grant the without danger be brought before the court.
writ of habeas corpus, if there is evidence that a person is 2. Make the return of the writ together with the day and the
unjustly restrained within the court’s jurisdiction, though no cause of caption or restraint.
application for the writ was made (Villavicencio v. Lukban,
G.R. No. L-14639, March 25,1919). SECTION 9. DEFECT OF FORM
No writ can be disobeyed for defect of form if it
SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT sufficiently states:
TO REQUIRE 1. The person in whose custody or under whose restraint
A. In case of imprisonment or restraint by an officer: the party imprisoned or restraint is held; and
1. The writ shall be directed to him; 2. The court or judge before whom he is to be brought.
2. The officer shall produce the body of the person
before the court. SECTION 10. CONTENTS OF RETURN
3. State the cause of detention and prove his authority. 1. Whether he has or has not the party in his custody
B. In case of imprisonment or restraint by a person not an or power, or under restraint;
officer: 2. If he has the party in his custody or power, or under
1. The writ shall be directed to an officer; restraint, the authority and the true and whole cause
2. The officer shall take and produce the body of the thereof, set forth at large, with a copy of the writ, order,
person before the court; execution, or other process, if any, upon which the party
is held;
3. If the party is in his custody or power or is restrained by Information filed against the accused (Ilagan v. Enrile,
him, and is not produced, particularly the nature and G.R. No. 70748, October 21, 1985).
gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought Once a person detained is duly charged in court, he may
before the court or judge; no longer question his detention through a petition for
4. If he has had the party in his custody or power, or under issuance of a writ of habeas corpus. Would be to quash
restraint, and has transferred such custody or the information and/or the warrant of arrest duly issued.
restraint to another, particularly to whom, at what time, The term “court” includes quasi-judicial bodies of
for what cause, and by what authority such transfer was governmental agencies authorized to order the person’s
made. confinement, like the Deportation Board of the Bureau of
Immigration (Go v. Ramos, G.R. No. 167569, 4
SECTION 11. RETURN TO BE SIGNED AND SWORN September 2009).
TO
If the offense is punishable by death, the person lawfully
SECTION 12. HEARING OF RETURN. detained shall not be released, discharged or bailed. If the
ADJOURNMENTS offense is not punishable by death, he MAY be
1. His remedy, upon the return of the writ, the court must recommitted to imprisonment of admitted to bail in the
immediately hear the case. discretion of the court or judge (Sec. 14, Rule 102).
2. The hearing MAY be adjourned by the court for good
causes, provided that conditions upon the safekeeping SECTION 15. WHEN PRISONER DISCHARGED IF NO
of the detained person is laid. APPEAL
3. If the detained person cannot be produced before the If one is unlawfully imprisoned, the court shall order his
court, the officer of person detaining must satisfy the discharge but it shall not be effective until a copy of the
court of the gravity of the alleged sickness or infirmity. order has been served on the officer or person detaining
4. During the hearing, the court shall disregard matters of the prisoner. If the person detaining him does not appeal,
form and technicalities of the authority or order of the prisoner shall be released.
commitment.
Period of appeal: Within 48 hours from notice of the
The failure of petitioners to file a reply to the return of the judgment or final order appealed from (Sec. 3, Rule 41).
writ warrants the dismissal of the petition because unless Form of appeal is by notice of appeal.
controverted, the allegations on the return are deemed to
be true or admitted (Florendo v. Javier, G.R. No. L-36101, The release contemplated under the writ of habeas corpus
June 29, 1979). is one which is free from any involuntary restraint. When
the person so released continues to be denied of one or
SECTION 13. WHEN THE RETURN EVIDENCE, AND more of his constitutional freedoms, where there is
WHEN ONLY A PLEA present denial of due process, or where the restraints are
If detention is by public authority, the return is not merely involuntary but appear to be unnecessary, the
considered prima facie evidence of the validity of the person concerned or those acting in his behalf may still
restraint and the petitioner has the burden of proof to avail themselves again of the privilege of the writ.
show that the restraint is illegal. As per Rule 131 on legal (Moncupa v. Enrile, G.R. No. 63345, January 30, 1986).
presumption that the duty of a public officer is regularly
performed. SECTION 16. PENALTY FOR REFUSING TO ISSUE
WRIT, OR FOR DISOBEYING THE SAME
If detention is by reason of private authority, the return is A penalty of PhP1,000 and may be punished for
considered only a plea of the facts asserted therein and contempt.
the person responsible for the detention has the burden of
proof to establish that the detention is legal and justified. Punishable acts or omissions
1. The Clerk of Court refuses to issue the writ after
SECTION 14. WHEN PERSON LAWFULLY allowance by the court and demand;
IMPRISONED RECOMMITTED, AND WHEN LET TO 2. The person directed in the writ:
BAIL a. Neglects or refuses to obey or make the return;
Habeas corpus would not lie after the Warrant of b. Makes a false return;
Commitment was issued by the court on the basis of the c. Refuses to deliver a true copy of the warrant/order of
commitment, within 6 hours after demand (Sec. 16).
Whether the State can reserve the power to re-arrest a Contents of verified petition (P-NOS)
person for an offense after a court of competent 1. The personal circumstances of the petitioner and
jurisdiction has absolved him of the offense: respondent;
2. The name, age and present whereabouts of the minor
Ruling: Such a reservation is repugnant to the principle and his or her relationship to the petitioner and
that the government is one of laws and not of men. Under respondent;
this principle, the moment a person is acquitted of a 3. The material operative facts constituting deprivation of
criminal charge he can no longer be detained or re- custody;
arrested for the same offense (Toyoto v. Ramos, G.R. No. 4. Such other matters which are relevant to the custody of
L-69270 October 15, 1985). minor (Sec.4).
SECTION 18. WHEN PRISONER MAY BE REMOVED In Sombong v. Court of Appeals, et al. (G.R. No. 111876,
FROM ONE CUSTODY TO ANOTHER January 31, 1996), the Court laid down the following
1. By legal process; requisites in petitions for habeas corpus involving minors:
2. Prisoner is delivered to an inferior officer to carry to jail; 1. That the petitioner has the right of custody over the
3. By order of proper court or judge directing that he be minor;
removed from one place to another within the 2. That the rightful custody of the minor is being withheld
Philippines for trial; from the petitioner by the respondent; and
4. In case of fire, epidemic, insurrection or other necessity 3. That it is to the best interest of the minor concerned to
or public calamity. be in the custody of petitioner and not that of the
respondent.
SECTION 19. RECORD OF WRIT, FEES AND COSTS
Motion to dismiss is not allowed except on the ground of
lack of jurisdiction over the subject matter or the parties
R ULE ON C USTODY OF M INORS (Sec.6).
AND W RIT OF H ABEAS C ORPUS IN
Respondent must file a verified answer within 5 days from
R ELATION TO THE C USTODY OF the service of summons and copy of the petition (Sec.7).
M INORS
Pre-trial is mandatory (Sec.9).
(A.M. No. 03-04-04-SC)
Effects of failure to appear at the pre-trial
1. If the petitioner fails to appear personally at the pre-trial,
Who may file the petition: A verified petition for the
the case shall be dismissed, unless his counsel or a
rightful custody of a minor may be filed by any person
duly authorized representative appears in court and
claiming such right (Sec.2).
proves a valid excuse for the non-appearance of the
petitioner;
Where to file petition: Family Court of the province or
2. If the respondent has filed his answer but fails to appear
city where the petitioner resides or where the minor may
at the pre-trial, the petitioner shall be allowed to present
be found (Sec.3).
Note: The court may also issue a Protection Order Limited to life, liberty and security because there are
(Sec.17). other enforced remedies.
Appeal : Notice of appeal within 15 days from notice of Broad enough to encompass both actual and threatened
denial of motion for reconsideration or new trial (Sec.19). violation of human rights.
Note: No appeal shall be allowed unless a motion for Who may file (order of preference): By the aggrieved
reconsideration or new trial has been filed. party or by any qualified person or entity in the following
order:
Petition for Writ of Habeas Corpus 1. Any member of the immediate family, namely: the
Shall be enforceable within its judicial region to which the spouse, children and parents of the aggrieved party;
Family Court belongs (Sec. 20).
2. Any ascendant, descendant or collateral relative of the court or any justice thereof, or to any RTC where the
aggrieved party within the fourth civil degree of threat, act or omission was committed or any of its
consanguinity or affinity, in default of those mentioned elements occurred;
in the preceding paragraph; or 3. When issued by the Supreme Court or any of its
3. Any concerned citizen, organization, association or justices, it may be returnable to such Court or any
institution, if there is no known member of the justice thereof, or before the Sandiganbayan or the
immediate family or relative of the aggrieved party. Court of Appeals or any of their justices, or to any RTC
in the place where the threat, act or omission was
Filing of a petition by the aggrieved party suspends the committed or any of its elements took place (Sec.3).
right of all other authorized parties to file similar petitions.
Note: Due to the extraordinary nature of the writ, which
Likewise, the filing of the petition by an authorized party protects the mother of all rights –the right to life – the
on behalf of the aggrieved party suspends the right of all petition may be filed on any day, including Saturdays,
others, observing the order established herein (Sec. 2). Sundays and holidays; and at any time, from morning until
evening.
Ratio: To prevent the indiscriminate and groundless filing
of petitions for amparo which may even prejudice the right No docket fees
to life, liberty or security of the aggrieved party. Ratio: The enforcement of these sacrosanct rights should
not be frustrated by lack of finances.
Where to file:
1. Regional Trial Court where the threat, act or omission Issuance of the Writ: Upon the filing of the petition, the
was committed or any of its elements occurred; court, justice or judge shall immediately order the
2. With the Sandiganbayan, Court of Appeals, the issuance of the writ if on its face it ought to issue. The writ
Supreme Court or any justice of such courts. shall be served immediately.
This writ shall be enforceable anywhere in the Philippines. The writ should set the date and time for a summary
hearing of the petition which shall not be later than seven
Note: Basically similar to the Rule on petitions for the writ (7) days from the date of its issuance (Sec. 13).
of habeas corpus. It is, however, different because it
includes the Sandiganbayan for the reason that public Punishment for refusal to issue writ: Contempt without
officials and employees will be respondents in amparo prejudice to other disciplinary actions (Sec. 16).
petitions.
Return
Contents of the verified petition The Return serves as the responsive pleading to the
1. Personal circumstances of the petitioner and of petition. Unlike an Answer, the Return has other purposes
respondent responsible for the threat, act or omission; aside from identifying the issues in the case. Respondents
2. Violated or threatened right to life, liberty or security of are also required to detail the actions they had taken to
the party aggrieved. Stating in detail the circumstances; determine the fate or whereabouts of the aggrieved party
3. Specify the names, personal circumstances of the (De Lima v. Gatdula, G.R. No. 204528, February 19,
investigating authority or individuals, as well as the 2013).
manner and conduct of investigation;
4. Actions and recourses taken by the petitioner to Contents of return
determine the whereabouts of aggrieved party and 1. The lawful defenses to show that the respondent did not
identity of the person responsible for the threat, act or violate or threaten with violation the right to life, liberty
omission; and security of the aggrieved party, through any act or
5. The relief prayed for; omission;
6. A general prayer for other just and equitable reliefs may 2. The steps or actions taken by the respondent to
be included (Sec. 5). determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
Where returnable; enforceable threat, act or omission;
1. When issued by the RTC or an judge thereof, the writ is 3. All relevant information in the possession of the
returnable before such court or judge; respondent pertaining to the threat, act or omission
2. When issued by the Sandiganbayan, Court of Appeals against the aggrieved party; and
or any of their justices, it may be returnable to such
4. If the respondent is a public official or employee, the 11.Motion for reconsideration of interlocutory orders or
return shall further state the actions that have been or interim relief orders; and
will still be taken: 12.Petition for certiorari, mandamus or prohibition against
a. To verify the identity of the aggrieved party; any interlocutory order (Sec. 11).
b. To recover and preserve evidence related to the
death or disappearance of the person identified in the The filing of motion for new trial and petition for relief from
petition which may aid in the prosecution of the judgment are allowed because denial of these remedies
person or persons responsible. may jeopardize the rights of the aggrieved party.
c. To identify witnesses and obtain statements from (Annotation to the Writ of Amparo).
them concerning the death or disappearance;
d. To determine the cause, manner, location and time of Effect of failure to file return: The court, justice or judge
death or disappearance as well as any pattern or shall hear the petition ex parte.
practice that may have brought about the death or
disappearance; Procedure for hearing: The hearing shall be summary,
e. To identify and apprehend the person or persons but the judge may call a preliminary conference to simplify
involved in the death or disappearance; and the issues and determine the possibility of obtaining
f. To bring the suspected offenders before a competent stipulations and admissions from the parties.
court.
The hearing shall be held on a daily basis until completed
The return shall also state other matters relevant to the and is given the same priority as that of petitions for writ of
investigation, its resolution and the prosecution of the habeas corpus.
case.
Interim reliefs available to petitioner (TIP)
Respondent shall file a verified written return together with 1. Temporary protection order – The court, justice or
supporting affidavits within 72 hours after service of the judge, upon motion or motu proprio, may order that the
writ. The period to file a return cannot be extended except petitioner or the aggrieved party and any member of the
on highly meritorious grounds (Sec. 9). immediate family be protected in a government agency
or by an accredited person or private institution capable
No general denial – the policy is to require revelation of all of keeping and securing their safety. If the petitioner is
evidence relevant to the petition. an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be
Avoids the ineffectiveness of the writ of habeas corpus, extended to the officers involved.
where often the respondent makes a simple denial in the 2. Inspection order - The court, justice or judge, upon
return that he or she has custody over the missing person, verified motion and after due hearing, may order any
and the petition is dismissed. person in possession or control of a designated land or
other property, to permit entry for the purpose of
Omnibus waiver rule inspecting, measuring, surveying, or photographing the
The respondent must plead all his defenses in the return. property or any relevant object or operation thereon.
Failure to do so shall operate as a waiver of such 3. Production order - The court, justice or judge, upon
defenses not therein pleaded (Sec. 10). verified motion and after due hearing, may order any
person in possession, custody or control of any
Prohibited pleadings and motions designated documents, papers, books, accounts,
1. Motion to dismiss; letters, photographs, objects or tangible things, or
2. Motion for extension of time to file return, opposition, objects in digitized or electronic form, which constitute
affidavit, position paper and other pleadings; or contain evidence relevant to the petition or the return,
3. Dilatory motion for postponement; to produce and permit their inspection, copying or
4. Motion for a bill of particulars; photographing by or on behalf of the movant.
5. Counterclaim or cross-claim;
6. Third-party complaint; Interim reliefs available to the respondent: Upon
7. Reply; verified motion of the respondent and after due hearing,
8. Motion to declare respondent in default; the court, justice or judge may issue an inspection order
9. Intervention; or production order. A motion for inspection order shall
10.Memorandum; be supported by affidavits or testimonies of witnesses
having personal knowledge of the defenses of the determination it cannot proceed for a valid cause such as
respondent. the failure of petitioner or witnesses to appear due to
threats on their lives (Liberalized rule on dismissal).
Burden of proof and standard of diligence required:
Parties shall establish their claims by substantial The petition shall be dismissed with prejudice upon failure
evidence. to prosecute the case after the lapse of two (2) years from
notice to the petitioner of the order archiving the case
If respondent is a private individual or entity, must prove (Sec. 20).
that ordinary diligence as required by applicable laws,
rules and regulations was observed in the performance of Institution of separate actions: Filing of a petition for the
duty. If a public official or employee, extraordinary writ of amparo shall not preclude the filing of separate
diligence is required. criminal, civil or administrative actions (Sec. 21).
Presumption of regularity in the performance of official Effect of filing of a criminal action: When a criminal
duty cannot be invoked which is in accord with current action has been commenced, no separate petition for the
jurisprudence on custodial interrogation and search writ shall be filed. The reliefs under the writ shall be
warrant cases. available by motion in the criminal case. The procedure
under the Rule on the Writ of Amparo shall govern the
There is no need to show that petitioner has exhausted disposition of reliefs available under the writ Sec. 22).
prior administrative remedies.
Consolidation: When a criminal action is filed
Judgment: The court shall render judgment within ten subsequent to the filing of a petition for the writ, the latter
(10) days from the time the petition is submitted for shall be consolidated with the criminal action.
decision.
When a criminal action and a separate civil action are filed
No enforcement of 5 days like in Habeas Data (Sec. 18). subsequent to a petition for a writ of amparo, the latter
shall be consolidated with the criminal action. After
Appeal: Within 5 days to appeal to the SC under Rule 45 consolidation, the procedure under this Rule shall
and may raise questions of fact or law or both (Sec. 19). continue to apply to the disposition of the reliefs in the
petition (Sec. 23).
Ratio: Amparo proceedings involve determination of facts
considering its subject–extralegal killings and enforced Doctrine of command responsibility in amparo
disappearances. proceedings: It would be inappropriate to apply to these
proceedings the doctrine of command responsibility, as a
Judgment subject to appeal via Rule 45 form of criminal complicity through omission, for the
If the allegations are proven with substantial evidence, the criminal liability is beyond the reach of amparo.
court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate. The judgment should It does not determine guilt nor pinpoint criminal culpability
contain measures, which the judge views as essential for for the disappearance, threats thereof or extrajudicial
the continued protection of the petitioner in the Amparo killings; it determines responsibility, or at least
case. These measures must be detailed enough so that accountability, for the enforced disappearance, threats
the judge may be able to verify and monitor the actions thereof or extrajudicial killings for purposes of imposing
taken by the respondents. Is it this judgment that could be the appropriate remedies to address the disappearance or
subject to appeal to the Supreme Court via Rule 45 (De extrajudicial killings.
Lima v. Gatdula, G.R. No. 204528, February 19, 2013).
If command responsibility were to be invoked and applied
The privilege of the Writ of Amparo should be to these proceedings, it should, at most, be only to
distinguished from the actual order called the Writ of determine the author who, at the first instance, is
Amparo. The prvilege includes availment of the entire accountable for, and has the duty to address, the
procedure outlined in AM No. 07-9-12-SC (De Lima v. disappearance or harassments complained of, so as to
Gatdula, G.R. No. 204528, February 19, 2013). enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights
Archiving and revival of cases: The court shall not covered by the writ of amparo (Rubrico, et al. v.
dismiss the petition, but shall archive it, if upon its
Macapagal-Arroyo, et al., G.R. No. 183871, February 18, officials to allow access to documents about the missing
2010). person. While amparo denies state officials the defense of
denial with which they normally evade petitions for habeas
Note: The writ of amparo, in its present form, is confined corpus that families of missing persons file, and compels
only to these two instances of “extralegal killings” and them instead to exert efforts to find these missing persons
enforced disappearances” (Rev. Fr. Reyes v. Court of or face sanctions (Festin, p.213).
Appeals, et al., G.R. No. 182161, December 3, 2009).
Note: The writ of habeas data cannot be invoked in labor
It is now clear that for the protective writ of amparo to disputes where there is no unlawful violation of the right to
issue, allegation and proof that the persons subject life, liberty, or security (Meralco v. Lim, G.R. No. 184769,
thereof are missing are not enough. It must also be shown October 5, 2010).
and proved by substantial evidence that the
disappearance was carried out by, or with the Habeas data cannot be invoked when respondents in the
authorization, support or acquiescence of, the State or a petition for issuance of the writ are not gathering,
political organization, followed by a refusal to collecting, or storing data or information (Castillo v. Cruz,
acknowledge the same or give information on the fate or G.R. No. 182165, November 25, 2009).
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a Who may file: Any aggrieved party may file a petition for
prolonged period of time. Simply put, the petitioner in an the writ of habeas data. However, in cases of extralegal
amparo case has the burden of proving by substantial killings and enforced disappearances, the petition may be
evidence the indispensable element of government filed by:
participation (Navia v. Pardico, G.R. No. 184467, June 19, 1. Any member of the immediate family of the aggrieved
2012). party, namely: the spouse, children and parents; or
2. Any ascendant, descendant or collateral relative of the
It is not a writ to protect concerns that are purely property aggrieved party within the fourth civil degree of
or commercial (Tapuz, et al. v. Judge Del Rosario, G.R. consanguinity or affinity, in default of those mentioned
No. 182484, June 17, 2008). in the preceding paragraph (Sec. 2).
respondent resides, or that which has jurisdiction over 2. In case of respondent in charge, possession or control
the place where the data or information is gathered, of the data or information subject of the petition:
collected or stored (Sec. 4). a. A disclosure of the data or information about the
petitioner, the nature of such data or information, and
Note: The writ of habeas data shall be enforceable the purpose for its collection.
anywhere in the Philippines. b. The steps of actions taken by the respondent to
ensure the security and confidentiality of the data or
Docket Fees: No docket and other lawful fees shall be information,
required from an indigent petitioner (Sec. 5). c. The currency and accuracy of the data or information
held.
Note: A petition for a writ of habeas data must be 3. Other allegations relevant to the resolution of the
verified. proceeding (Sec. 10).
Contents of the petition (P-MALRO) Effect of failure to file a return: The court shall proceed
1. Personal circumstances of the petitioner and to hear the petition ex parte, granting the petitioner such
respondent; relief as the petition may warrant unless the court in its
2. The manner the right of privacy is violated or discretion requires the petitioner to submit evidence (Sec.
threatened; 14).
3. Actions and recourses taken by petitioner to secure the
date or information; Note: Making a false return, or refusing to make a return;
4. Location of the files, registers or database, the or any person who otherwise disobeys or resists a lawful
government office, person in charge, in possession and process or order of the court shall be punished by
control of the data, if known; contempt (Sec. 11).
5. Reliefs prayed for; and
6. Other relevant reliefs as are just & equitable (Sec. 6). Defenses available to respondent
1. National security;
Issuance of the writ: Upon the filing of the petition, the 2. State secrets;
court, justice or judge shall immediately order the 3. Privileged communications;
issuance of the writ if on its face it ought to issue. 4. Confidentiality of the source of information of media and
others (Sec. 12).
Clerk of court (COC) shall issue the writ under the seal of
the court and cause it to be served within three (3) days Note: Hearing in chambers may be conducted where the
from the issuance; or, in case of urgent necessity, the respondent invokes the abovementioned defenses (Sec.
justice or judge may issue the writ under his or her own 12).
hand, and may deputize any officer or person serve it
(COC’s refusal to issue the writ: Contempt without Prohibited pleadings and motions
prejudice to other disciplinary actions) (Secs. 7 & 11). 1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
The writ shall also set the date and time for summary affidavit, position paper and other pleadings;
hearing of the petition which shall not be later than ten 3. Dilatory motion for postponement;
(10) working days from the date of its issuance (Sec. 16). 4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
Return: Respondent shall file a verified written return 6. Third-party complaint;
together with supporting affidavits within five (5) working 7. Reply;
days from service of the writ, which period may be 8. Motion to declare respondent in default;
reasonably extended by the Court for justifiable reasons 9. Intervention;
(General Denial of the allegations in the petition is not 10.Memorandum;
allowed) (Sec. 17). 11.Motion for reconsideration of interlocutory orders or
interim relief orders; and
Contents of return: 12.Petition for certiorari, mandamus or prohibition against
The lawful defenses such as national security, state
1. any interlocutory order. (Sec. 13)
secrets, privileged communication, confidentiality of the
source of information of media and others,
Upon its finality, judgment enforced within five (5) working The procedure under this Rule shall govern the disposition
days. of the reliefs available under the writ of habeas data (Sec.
21).
Grant of the writ vs. Grant of the privilege of the writ:
The grant of the writ refers to the decision of the court to See Comparative Chart of Habeas Corpus, Writ of
give due course to the petition, require respondents to file Amparo and Habeas Data on Page 270
their return and set the petition for hearing. The grant of
the privilege of the writ means that the petition is found
meritorious, the prayers therein are granted and the R ULE 103
petitioner is granted the relief sought. C HANGE OF N AME
Return of service: The officer who executed the
judgment shall, within 3 days from its enforcement, make Procedure for Change of Name under Rule 103
a verified return to the court.
Petition for Change of Name
Contents of the return of service
1. Full statement of the proceedings under the writ; and Court order fixing the date and place of hearing
2. Complete inventory of the database or information, or
documents or articles inspected, updated, rectified, or
deleted, with copies served on the petitioner and the Publication of the court order fixing the date and place
respondent. of hearing, at least once a week for 3 successive weeks
3. Statement by the officer how the judgment was in a newspaper of general circulation
enforced and complied with by the respondent; and
4. All the objections of the parties regarding the manner
and regularity of the service of the writ (Sec. 17). Hearing on the Petition
Hearing on officer’s return: The court shall set the date Judgment granting / denying the change of name.
with due notice to the parties Copy of the judgment shall be served upon the civil
registrar, who shall annotate the same
Appeal: Within five (5) days to appeal to the SC under
Rule 45 and may raise questions of fact or law or both.
The name that can be changed is the name that appears Requirement of verification is a formal, and not a
in the civil register, and not in the baptismal certificate or jurisdictional requisite. It is not a ground for dismissing
that by which the person is known in the community (Ng petition.
Yao Siong v. Republic of the Philippines, G.R. No. L-
20306, March 31, 1966). Under Rule 103, the word “person” is a generic term
which is not limited to Filipino citizens, but embraces all
Legal separation is not a ground for the female spouse for natural persons. The rule does not even require that the
a change of name under Rule 103 (Laperal v. Republic of citizenship of the petitioner be stated in the petition (Yu v.
the Philippines, G.R. No. L-18008, October 30, 1962). Republic of the Philippines, G.R. No. L-20874, May 25,
1966).
A change of name granted by the court affects only a
petitioner. A separate petition for change of name must be All of the applicant’s aliases must be stated in the
filed for his/her spouse and children (Secan Kok v. petition’s title. Otherwise, it would be a fatal defect (Go
Republic of the Philippines, G.R. No. L-27621, August 30, Chiu Beng v. Republic of the Philippines, G.R. No. L-
1973). 29574, August 18, 1972).
proceedings (Tan v. Republic of the Philippines, G.R. No. SECTION 6. SERVICE OF JUDGMENT
L-16384, April 26, 1962). Civil Registrar of the city or municipality where the court is
situated shall be furnished with a copy of the judgment.
Grounds for change of name (R-CHEN)
1. Name is ridiculous, tainted with dishonor or extremely Consequence of a grant to change name: A mere
difficult to write or pronounce; change of name would not cause a change in one’s
2. Consequence of a change of status; e.g. legitimated existing family relations, nor create new family rights and
child; duties where none exists before. Neither would it affect a
3. Habitual and continuous use and has been known since person’s legal capacity, civil status or citizenship. What
childhood by a Filipino name, unaware of her alien would be altered is the word or group of words by which
parentage; he is identified and distinguished from the rest of his fellow
4. A sincere desire to adopt a Filipino name to erase signs men (Ang Chay v. Republic of the Philippines, G.R. No. L-
of former alienage, all in good faith and without 28507, July 31, 1970).
prejudicing anybody; or
5. Necessity to avoid confusion; Note: When the marriage ties or vinculum no longer exists
as in the case of death of a husband or divorce as
Title of petition must contain the following: authorized by the Muslim Code, the widow or divorcee
1. Official name (birth certificate) – be very particular with need not seek judicial confirmation of the change in her
the spelling because it may avoid or annul the civil status in order to revert to her maiden name as the
proceedings; it is jurisdictional; use of her former husband’s name is optional and not
2. All aliases; and obligatory for her. Neither is she required to secure judicial
3. Name asked for. authority to use the surname of her husband after the
marriage as no law requires it (Yasin v. Shari’a District
Note: All the names or aliases must appear in the title Court, G.R. No. 94986, 23 February 1995).
or caption of the petition, because the reader usually
merely glances at the title of the petition and may only
proceed to read the entire petition if the title is of interest
R ULE 104
to him (Secan Kok v. Republic of the Philippines, supra). V OLUNTARY D ISSOLUTION OF
C ORPORATIONS
The non-inclusion of all the names or aliases of the
applicant in the caption of the order or in the title of the Note: Dissolution of corporations should now be filed
petition defeats the very purpose of the required with the Securities and Exchange Commission and is
publication (Republic of the Philippines v. Zosa, G.R. No. covered by Title XIV, Sections 117 to 122 of the
L-48762, September 12, 1988). Corporation Code of the Philippines.
A decree of adoption grants the adoptee the right to use Note: The matter of the filiations of illegitimate children
the adopter’s surname, if change of first name is so and the proof thereof is governed by Articles 172 and 173,
desired, it must be prayed and alleged in the petition for in relation to Article 175, of the Family Code.
adoption (Sec. 16, A.M. No. 02-6-02-SC).
Voluntary recognition
An admission of the fact of paternity or maternity by the
presumed parent, expressed in the form prescribed by the
The action must be brought within the same period The family home shall be exempt from execution, forced
specified in Article 173, except when the action is based sale or attachment except:
on the second paragraph of Article 172, in which case the 1. For nonpayment of taxes;
action may be brought during the lifetime of the alleged 2. For debts incurred prior to the constitution of the family
parent. home;
3. For debts secured by mortgages on the premises
before or after such constitution; and
4. For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building (Art. 155, NCC).
without any news since the receipt of the last news about
R ULE 107 him, after two (2) years if without administrator or after five
A BSENTEES (5) years if with administrator.
One’s disqualification as an heir of the absentee does not newspaper of general circulation in the province or city
inhibit him or her from petitioning for a declaration of where the absentee resides, as the court shall deem best.
absence or to be appointed as an administrator of the
absentee’s estate (Noquera v. Villamor, G.R. No. 84250, SECTION 5. OPPOSITION
July 20, 1992). Oppositor must:
1. State in writing his grounds therefor;
It is not necessary that a declaration of absence be made 2. Serve a copy thereof to petitioner and other interested
in a proceeding separate from and prior to a petition for parties on or before the hearing.
administration (Reyes v. Alejandro, G.R. No. L-32026,
January 16, 1986). SECTION 6. PROOF AT HEARING; ORDER
Art. 386. The judicial declaration of absence shall not take
SECTION 3. CONTENTS OF PETITION effect until six months after its publication in a newspaper
1. The jurisdictional facts; of general circulation.
2. The names, ages, and residences of the heirs instituted
in the will, copy of which shall be presented, and of the SECTION 7. WHO MAY BE APPOINTED
relatives who would succeed by the law of intestacy; Appointment of representative/trustee:
3. The names and residences of creditors and others who 1. Spouse present (preferred); or
may have any adverse interest over the property of the 2. Any competent person.
absentee;
4. The probable value, location and character of the SECTION 8. TERMINATION OF ADMINISTRATION
property belonging to the absentee. Grounds for termination of the administration
1. Absentee appears personally or through an agent;
2. Absentee’s death is proven and heirs appear;
Period of Absence Consequence 3. Third person appears showing that he acquired title
Petition for Appointment of over the property of the absentee (Art. 389, NCC).
Representative (unless the
0-2 years General rule: No independent action for Declaration of
absentee left an agent to
administer his property) Presumption of Death.
2 years to 7 years
(5 years to 7 years Petition for declaration of absence Exception: The need for declaration of presumptive
in case the and appointment of administrator death for purposes of remarriage (Art. 41, Family Code).
absentee left an or trustee may be filed.
agent) Note: The Family Code provides that for the purpose of
contracting a second marriage, the present spouse must
Considered dead for all intents and
file a summary proceeding for the declaration of the
purposes except for purposes of
presumptive death of the absentee, without prejudice to
succession (if disappeared under
the latter’s reappearance.
extraordinary circumstances,
Beyond 7 years
considered dead for all purposes,
(absence of 4 years Provisions of the revised rules on evidence on
even succession);
under extraordinary presumption of death: That after an absence of seven
For purposes of Marriage: 4 years
circumstance) years, it being unknown whether or not the absentee still
continuous absence shall be
lives, he is considered dead for all purposes, except for
sufficient for present spouse to
those of succession.
remarry, 2 years only under
extraordinary circumstance
The absentee shall not be considered dead for the
purpose of opening his succession till after an absence of
SECTION 4. TIME OF HEARING; NOTICE AND
ten years. If he disappeared after the age of seventy-five
PUBLICATION THEREOF
years, an absence of five years shall be sufficient in order
Copies of the notice of the time and place fixed for the
that his succession may be opened.
hearing shall be served upon the known heirs, legatees,
devisees, creditors and other interested persons, at least
The following shall be considered dead for all purposes
ten (10) days before the day of the hearing.
including the division of the estate among the heirs:
It shall be published once a week for three (3) consecutive
weeks prior to the time designated for the hearing, in a
1. A person on board a vessel lost during a sea voyage, or SECTION 1. WHO MAY FILE PETITION
an aircraft which is missing, who has not been heard of Any person interested in any act, event, order or decree
for four years since the loss of the vessel or aircraft; concerning the civil status of persons recorded in the civil
2. A member of the armed forces who has taken part in registry.
armed hostilities, and has been missing for four years;
3. A person who has been in danger of death under other Where filed: RTC of the province where the
circumstances and whose existence has not been corresponding civil registrar is located.
known for four years;
4. If a married person has been absent for four Proceedings under Rule 108 may be summary or
consecutive years, the spouse present may contract a adversarial:
subsequent marriage if he or she has a well-founded 1. Summary – when the correction sought to be made is a
belief that the absent spouse is already dead. In case of mere clerical error (now governed by R.A. No. 9048).
disappearance, where there is danger of death under 2. Adversarial - where the rectification affects civil status,
the circumstances hereinabove provided an absence of citizenship or nationality of a party or any other
only two years shall be sufficient for the purpose of substantial change.
contracting a subsequent marriage. However, in any
case, before marrying again, the spouse present must Requisites of adversarial proceedings
institute a summary proceeding as provided in the 1. Petition is filed before the court having jurisdiction over
Family Code and in the rules for a declaration of the impleaded civil registrar and all interested parties;
presumptive death of the absentee, without prejudice to (Sec.3)
the effect of reappearance of the absent spouse (Sec. 3 2. The order of the hearing must be published once a
[w], Rule 131).. week for three consecutive weeks;
3. Notice thereof must be given to the Civil Registrar and
all parties affected thereby;
R ULE 108 4. The civil registrar and any person having or claiming
C ANCELATION OR C ORRECTION any interest under the entry whose cancellation or
OF E NTRIES IN THE C IVIL correction is sought may, within 15 days from notice of
the petition or from the last date of publication of such
R EGISTRY notice, file his opposition thereto;
5. Full blown trial.
Procedure for cancellation or correction of entries
under Rule 108 Proceedings for the correction of entries should not be
considered as establishing one’s status in a manner
Petition for Cancellation or Correction of any
conclusively beyond dispute. The status corrected would
entry relating to an act, event order or decree
not have a superior quality for evidentiary purposes. There
concerning the civil status
is no increase or diminution of substantive right (Chiao
Ben Lim v. Zosa, G.R. No. L- 40252, December 29, 1986).
Court order fixing the date and place for Hearing
SECTION 2. ENTRIES SUBJECT TO CANCELLATION
Publication of the court order at least once a week for OR CORRECTION
3 successive weeks in a newspaper of general (BMD LAVLAA- NEC JVC)
circulation, with reasonable notice given to persons 1. Births;
named in the petition 2. Marriages;
3. Deaths;
4. Legal separations;
Filing of opposition by the civil registrar and any person 5. Judgments of annulments of marriage;
having/claiming interest under the entry whose 6. Judgments declaring marriages void from the
cancellation/correction is sought, within 15 days from beginning;
notice of the petition or from the last date of publication
7. Legitimations;
of the notice
8. Adoptions;
9. Acknowledgments of natural children;
Hearing on the petition 10.Naturalization;
11.Election, loss or recovery of citizenship;
Judgment granting/denying the petition. Copy of 12.Civil interdiction;
the judgment shall be served upon the civil
registrar, who shall annotate the same
13.Judicial determination of filiation; majority, with good reason thinks of his/her sex; sexual
14.Voluntary emancipation of a minor; development in cases of intersex persons makes the
15.Change of name. gender classification at birth inconclusive – it is at
maturity that the gender of such persons is fixed.
Even substantial errors in a civil registry may be corrected 2. To the person with CAH belongs the human right to the
and the true facts established provided the parties pursuit of happiness and of health, and to him should
aggrieved by the error avail themselves of the appropriate belong the primordial choice of what courses of action
adversary proceedings (Republic of the Philippines v. to take along the path of his sexual development and
Valencia, G.R. No. L-32181, March 5, 1986). maturation.
3. There is merit in the change of name of a person with
Adversarial proceeding CAH where the same is the consequence of the
One that has opposing parties; contested as distinguished recognition of his preferred gender.
from an ex parte application, one of which the party
seeking relief has given legal warning to the other party, SECTION 3. PARTIES
and afforded the latter an opportunity to contest it 1. Civil registrar;
(Republic v. Valencia, supra). 2. All persons who have or claim any interest which would
be affected thereby.
Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary SECTION 4. NOTICE AND PUBLICATION
proceeding to effect substantial correction and changes in Order of hearing shall be published once a week for 3
entries of the civil register (Lee v. Court of Appeals, G.R. consecutive weeks in a newspaper of general circulation
No. L-118387, Oct. 11, 2001). in the province and all persons named in the petition shall
be notified.
Whether a petition under Rule 108 can be granted by
reason of “sex change” or “sec reassignment”: No. SECTION 5. OPPOSITION
Since the statutory language of the Civil Register Law was The following are entitled to oppose the petition:
enacted in the early 1900s and remains unchanged, it 1. The Civil Registrar; and
cannot be argued that the terms “sex” as used then is 2. Any person having or claiming any interest under the
something alterable through surgery or something that entry whose cancellation or correction is sought.
allows a post-operative male-to-female transsexual to be
included in the category of “female” (Silverio v. Republic of Within 15 days from notice of the petition or from date of
the Philippines, G.R. No. 174689, October 22, 2007). last publication.
Where to file: Copies of the petition shall be given to: the city or
1. Local civil registry office or Clerk of the Shari’a Court municipal civil registrar, or the consul general; the Office
where the record being sought to be corrected or of the Civil Registrar General; and the petitioner (Sec. 5).
changed is kept;
2. If petitioner has already migrated to another place in the Duties of the city/municipal civil registrar or the
country: petition-receiving civil registrar of the place Consul General:
where the interested party is presently residing or 1. Examine the petition and its supporting documents;
domiciled (Rule 4, Implementing Rules & Regulations); 2. Post the petition in a conspicuous place provided for
3. Citizens of the Philippines who are presently residing or that purpose for 10 consecutive days after he finds the
domiciled in foreign countries: nearest Philippine petition and its supporting documents sufficient in form
Consulates (Sec. 3). and substance;
3. Act on the petition and render a decision not later than
Contents of the petition: The petition shall be in the form 5 working days after the completion of the posting
of an affidavit, subscribed and sworn to before any person and/or publication requirement;
authorized by the law to administer oaths and shall set 4. Transmit a copy of his decision together with the
forth: records of the proceedings to the Office of the Civil
1. The facts necessary to establish the merits of the Registrar General within 5 working days from the date
petition; of the decision (Sec. 6).
2. That the petitioner is competent to testify to the matters
stated; Duties and powers of the civil registrar general
3. The erroneous entry which are sought to be corrected; 1. Within 10 working days from receipt of the decision
4. All names by which petitioner is known (Secan Kok v. granting the petition, the Civil Registrar General shall
Republic of the Philippines, supra). exercise the power to impugn such decision by way of
an objection based on the following grounds:
Annexes to the petition a. The error is not clerical or typographical;
1. A certified true copy of the certificate or of the page of b. The correction of entries is substantial or
the registry book containing the entries sought to be controversial as it affects the civil status of a person;
corrected or changed; and
2. At least 2 public or private documents showing the c. The basis used in changing the first or nick name of a
correct entries upon which correction or change shall be person does not fall under those provided by law.
based; 2. The Civil Registrar General shall immediately notify the
3. Other documents which the petitioner or the city or city/municipal civil registrar or the consul general of the
municipal civil registrar or the consul general may action taken on the decision.
consider relevant and necessary for the approval of the 3. He has appellate powers over the decision of the local
petition; civil registrars or consul general (Sec. 7).
4. For correction of erroneous entry of date of birth or the
sex of a person: earliest school record or earliest school If the Civil Registrar General fails to exercise his power to
documents such as, but not limited to, medical records, impugn within the prescribed period, the decision of the
baptismal certificate and other documents issued by city/municipal civil registrar or the consul general shall
religious authorities; become final and executor (Sec. 7).
5. For change of gender corrected: certification issued by
an accredited government physician attesting to the fact Effect of approving the petition for change of name:
that the petitioner has not undergone sex change or sex The change shall be reflected in the birth certificate by
transplant. way of marginal annotation. In case there are other civil
6. Certification from appropriate law enforcement agencies registry records of the same person which are affected by
that the petitioner has no pending case or no criminal such change, the decision of approving the change of first
record (Sec. 5 as amended by Sec. 3, R.A. No. 10172). name in the birth certificate, upon becoming final and
executory, shall be sufficient to be used as basis in
Publication requirement: The petition must be published changing the first name of the same person in his other
at least once a week for 2 consecutive weeks in a affected records without need for filing a similar petition. In
newspaper of general circulation. such a case, the successful petitioner shall file a request
in writing with the concerned LCR or Consul to make such
marginal annotation (Rule 12, Implementing Rules &
Regulations 9048, July 24, 2001).
Filed by the party for whose relief it is Filed by the aggrieved party or by any Filed by the aggrieved party; but in
intended or by some person on his qualified person or entity in the cases of extralegal killings and
behalf. following order: enforced disappearances, may be filed
a) any member of the immediate by:
family of the aggrieved party, i.e. a) any member of the immediate
spouse, children and parents; family of the aggrieved party, i.e.
b) any ascendant, descendant or spouse, children and parents;
collateral relative of the aggrieved b) any ascendant, descendant or
party within the fourth civil degree of collateral relative of the aggrieved
consanguinity or affinity; party within the fourth civil degree of
c) any concerned citizen, organization, consanguinity or affinity.
association or institution (right to file is
successive).
The writ and reliefs prayed for must be The writ and reliefs prayed for must be
granted if the allegations are proven granted if the allegations are proven
by substantial evidence. Otherwise, it by substantial evidence. Otherwise, it
must be denied. must be denied.
Judgment shall be enforced within 5
working days.
Service of judgment shall be upon Service of judgment shall be Transmittal of decision to civil registrar
the civil register concerned. upon the civil register concerned. concerned.
Participation by the Government